According to a recent article published by Rick Schmitt on FairWarning, a run-of-the-mill employment dispute could become a major embarrassment for railroad giant BNSF over an allegation that a senior executive threatened to blackball an arbitrator from the industry if she ruled against the company. According to the article, the arbitrator at the middle of the dispute, Jacalyn Zimmerman, was the neutral party on a three-member arbitration panel that also included Roger Boldra, then BNSF’s labor relations director, and Jay Schollmeyer, a railroad union leader. The article shines a light on a downside of the growing use of arbitration in consumer and workplace disputes in recent years: the pressure on arbitrators to issue rulings that please the corporate entities that retain them, or risk falling out of favor and losing lucrative repeat business. Unlike judges who are assigned cases randomly – and who, in the federal courts, have lifetime tenure – arbitrators are private business people dependent on their next case. They know there is always an implied threat that if they issue unfavorable or unpopular rulings they may not be used again.
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