Laura J. Cooper: The stats show arbitrators to be effective

  • Article by: LAURA J. COOPER
  • September 16, 2010 - 7:54 PM

The Star Tribune's Sept. 14 editorial ("A slap on the wrist for St. Paul workers") asserts that in arbitration of disciplinary actions against Minnesota public-sector workers, arbitrators tend to uphold firings "only in extreme cases or after a lengthy record of unsuccessful performance." It also says that "some critics contend that this occurs because arbitrators are rewarded with more cases if they split the difference between union and management" by favoring corrective action over discipline or termination.

There is solid evidence, however, that neither proposition is true. My University of Minnesota colleagues, Prof. Stephen Befort of the Law School and emeritus Prof. Mario Bognanno of the Carlson School of Management, have completed an extensive study of Minnesota labor arbitration decisions issued over a 24-year period in discipline and discharge cases. We coded more than 2,000 cases and, for public cases in particular, we believe that our database includes nearly all cases in which arbitrators considered the discipline or discharge of a government employee between 1982 and 2005.

For Minnesota cases in the public sector, arbitrators upheld in full the employer's decision to discharge an employee 56 percent of the time. Arbitrators in government employee cases found that no discipline was appropriate only 16 percent of the time. In 27 percent of public-sector cases, the arbitrator found that the employee should be subject to some discipline short of discharge. In many of these cases, the arbitrator reinstated the employee without back pay, resulting in an average of eight months' loss of pay. Minnesota public-sector employers prevailed in full in more cases (56 percent) than private-sector Minnesota employers (49 percent).

Minnesota government employees did not have to engage in serious misconduct for their terminations to be upheld by arbitrators. While Minnesota government employers understandably had high arbitration success rates in termination cases where employees were fired for such offenses as damage to property or workplace use of alcohol and drugs, they were also highly successful in cases in which they fired employees merely for unsatisfactory performance (62 percent of such firings were upheld).

When arbitrators reduce discipline and issue "split" decisions in public-sector cases, there is no reason to believe that they do so to improve their opportunities for more cases. When arbitrators reduce discipline, they explain their reasons in lengthy written decisions -- all of which are public information, on file at the Minnesota Bureau of Mediation Services. They may reduce discipline, for example, because the employer never notified employees that particular conduct was prohibited, or because other employees engaged in the same conduct and were not fired.

If the assertion of "some critics" that arbitrators who split decisions get more work were true, we would expect to see that the busier arbitrators issue more split decisions than those with lower caseloads. Instead, however, we found that the proportions of split decisions issued did not correspondingly increase as the arbitrator's share of the Minnesota arbitration caseload rose. Arbitrators with the largest caseloads were far more likely to issue an award in favor of management than a split decision. On an anecdotal level, as a labor arbitrator for about 25 years, I have issued hundreds of cases involving employee terminations, but in only one of those cases did I issue a split decision reinstating the employee but not awarding any back pay.

Laura J. Cooper is the J. Stewart & Mario Thomas McClendon Professor in Law and Alternative Dispute Resolution at the University of Minnesota Law School.

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