Real-Life Decision Making -- Solution
You tell both sides involved in this case that you refuse to rule
100 percent for either side.
You write up a report, stating the reasons why you can't arbitrate
this case if you have to follow the non-discretionary clause. You say a settlement
in favor of the employee would be a clear violation of a legal employment
contract, but a settlement in favor of the employer would be a clear violation
of the employee's human rights. It would be supporting discrimination
against the employee because he has a mental illness.
This is the real-life decision made by Tom Watkins.
"After reading my report, both the employer and employee came back and
said they would accept my arbitration without the non-discretionary clause,
which meant I was able to find some middle ground on which to settle," says
Watkins. "Everybody won a little and everybody lost a little, because everybody
was wrong in degrees."
So how did the case work out? The employee got his job back since he was
not guilty of refusing to do a reasonable task, but he was not given any back
pay because he didn't tell his supervisor why the task was unreasonable.
W. Bruce Newman is an independent labor relations arbitrator. He says decisiveness
is an important ingredient in labor arbitration. "But it cannot be overshadowed
by that sense of analysis and weighing information and evidence," he says.