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Cornell University Office of Sponsored Programs Cornell University Telephone: 607 255-5014 373 Pine Tree Road Fax: 607 255-5058 Cornell University Ithaca, NY 14850 Web: www.osp.cornelledu Office of Sponsored Programs May 2,2014 National Academy of Arbitrators NAA Operations Center, Ste. 412 1 N. Main Street Cortland, NY 13045 To Whom It May Concern, Please find enclosed a proposal submitted on behalf of Cornell University and Dr. Alexander Colvin for a project titled “Understanding tile Professional Practices and Dcci sion-Maki ng of Employment Arbitrators” The Impact of Institutional Environments and Workplace Context.” Cornell’s proposed funding amount it $27,000.00 for a period of performance from June 1. 2014 to May 31, 2015. Cornell appreciates your consideration of this proposal. Should this proposal he selected for funding, Cornell reserves the right to negotiate an award with terms and conditions that are appropriate for an educational institution and consistent with its policies, in particular those governing intellectual property, confidentiality, and publication. Please send any award documents to my attention. If you have any questions or need additional information, please contact me at 607.255.2943 or by email at thf3 @cornell.edu. Si cerely, Thomas H. rank, Ph.D. Senior Grant and Contract Officer Please refer to OSP# 73504 in any future correspondence. Research Proposal Understanding the Professional Practices and Decision-Making of Employment Arbitrators: The Impact of Institutional Environments and Workplace Context Alexander J.S. Colvin ILR School, Cornell University Mark D. Gough ILR School, Cornell University [ntroduction The rise of employment arbitration represents a major transformation in the landscape of American workplace dispute resolution. Although debates have been intense over the adoption of arbitration proced tires covering statutory employment rights as mandatory terms and conditions of employment, such procedures are legally well established and an increasingly common feature of the American workplace, covering a quarter or more of all employees (Colvin, 2007; Lewin, 2008). Despite the growing prevalence of employment arbitration, there continues to be many features of this new institution about which we know relatively little. Existing research has mostly focused on the outcomes of arbitration, analyzing data on who wins cases and what 1 However damages are awarded. we know relatively little about the emerging profession of employment arbitrators and the process of arbitral decision-making in employment cases. Notable exceptions are research by Wheeler et al (2004) and Seeber and Lipsky (2006), which identified the importance of examining the role of employment arbitrators as decision-makers and as an emerging actor in the employment relations system. In this study we propose to take tip the call suggested by those authors for additional research on employment arbitrators to better understand these important new actors in workplace dispute resolution. In doing so, we focus on two major issues: What are the backgrounds and professional practices ofemployment arbitrators like? Whatfrictors influence the decision-making processes ofeniploj’ment arbitrators? The first part of our research project will focus on the question of who are employment arbitrators? As Seeher and Lipsky (2006) observed, employment arbitrators are a new set of actors who do not as yet have the characteristics of a well-developed, integrated profession, in contrast to the long-standing professional community of labor arbitrators. Research by Wheeler ci a! (2004) provided some initial empirical evidence about the characteristics of employment arbitrators and show differences in decision-making between employment arbitrators and other types of employment dispute decision-makers such as jurors, labor arbitrators or human resource managers. To date however, this initial work has not been extended to provide a more complete picture of the current state of the employment arbitrator profession. We propose to gather new 1 For a detailed review of the literature, see Colvin (2007). data to answer key questions about the characteristics of employment arbitrators and provide a picture of how the profession has evolved. What are the profrssional backgrounds of employment arbitrators? What type of education or training do they have? What proportion are flit/—time neutrals versus part-lime arbitrators? What proportion oftheir practices consists qf employment arbitration compared to other types ofdisputes or mediation work? We also plan to go beyond descriptive statistics and look at how these characteristics relate to the cases handled by employment arbitrators and their decision-making processes. Are there advantages to having flit/—time profrssional neutrals serving as arbitrators? What is the impact ofarbitrator training progrcims? What is the impact ofvaried employment and work histories? The second part of our research project will focus on the adjudicative decision—making processes of employment arbitrators. In particular, we are interested in the question of how the organizational and workplace context in which the case arose affects the decision-making of arbitrators. Labor arbitrators famously are experts on understanding and applying the law of the shop, taking into account the realities of the workplace context in providing a fair adjudication of a grievance pursuant to the collective bargaining agreement. By contrast, in employment arbitration the arbitrators are tasked with adjudicating cases involving claims of violation of statutory and common law rights. Yet, these employment law cases also arise in an organizational and workplace context that affects the origins and development of the dispute. We plan to investigate how the organizational and workplace context of the dispute affects employment arbitrator decision-making. Put alternatively, rather than mechanically applying abstract statutory principles, are employment arbitrators also engaged in a process ofreacting to the context o/the dispute and developing a new version ofthe law ofthe shop? The main empirical research component of this project will be a survey of practicing employment arbitrators. As an initial step in the survey development process we will conduct a series of in-depth qualitative interviews with practicing employment arbitrators to focus our investigation, identify key issues for the survey, and further the development of our survey instrument. We then plan to use a mixed web and hard-copy mail based approach for administering our survey. This will build on the experience of the survey administration methods we used in a 2013 survey ofplaintifTattorneys concerning their experiences with employment arbitration, which received 1258 responses at a strong response rate of 47%. We have already developed a list of arbitrator names to be surveyed consisting of all employment arbitrators who decided a case administered by either the American Arbitration Association or JAMS in the past two years. Based on our experience conducting a similar survey of plaintiff attorneys, we believe we will be able to complete this study of employment arbitrators during a 12 month tirneframe. Part I : Understanding the Employment Arbitrator Profession Employment arbitrators wield an awesome power to interpret statutory law determined at the local, state, and federal level, which until recently was the exclusive domain of public courts and administrative agencies. Yet despite the prevalence of employment arbitration, very little is known about the men and women who serve as arbitrators. Consequently, we intend to describe basic characteristics of individual employment arbitrators and the developing profession as a whole. Indeed, this study will advaiice the field by shining a light on this emergent, but underexplored, profession and will allow for a better understanding of the contemporary dispute resolution environment. Our survey responds to the needs described by Seeber and Lipsky (2006) and Wheeler et al (2004) in their own analyses of employment arbitrators. And while Seeher and Lipsky (2006) describe the rise of employment arbitration and provide valuable insights regarding whether employment arbitrators can be considered a profession, their analysis is frustrated by the dearth of data on arbitrators themselves. For example, when approaching the simple question of how many employment arbitrators practice full-time, Seeber and Lipsky (2006) respond with: “The number doing so must be very small and might even be zero. We know personally 2dozens of arbitrators and we do not know a single one that works full time as an employment arbitrator.” A main goal of this proposal is to overcome such casual observation and provide solid empirical answers to these types of questions. Wheeler et al (2004) have surveyed employment arbitrators directly and provide the only available independent statistics on employment arbitrators. 1-lowever, only a small number of 3 and, equally significant, the authors provide no analysis questions were asked in their survey 4 Our proposed concerning how these few characteristics affect arbitrator decision-making. survey will provide a more thorough and broader understanding of employment arbitrator characteristics and use this general information to provide additional insights into the decision- making calculus of arbitrators. Specifically, we are interested in the following aspects of the employment arbitrator profession: professional background and work histories (especially previous experience
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