WRITING THE GRIEVANCE ARBITRATION BRIEF

by
Timothy D.W. Williams
I. INTRODUCTION

One authority has defined the brief as a survey of the

potential

proof

for

one

side

of

dispute. 1

second

authority defines the brief as a systematic presentation of

arguments,
designed

authorities,

to

aid

in

and

the

relevant

background

decision-making

process.2

material
In

labor

arbitration the written brief is rarely used for an expedited

hearing,

but

is

frequently

used

in

regular

grievance

proceeding. At times the parties use the written brief to

supplement final closing oral arguments; while at other times
it

is

used

in

lieu

of

oral

arguments.

Whether

used

to

supplement or in substitute, a well-written brief does such to

advance the position of the advocate and, in fact, may be the
deciding factor in a case. As such, the craftsmanship and
persuasiveness

of

the

brief

are

vitally

important

to

the

advocates interest.
This section of the monograph will summarize many of the
basic and technical rules covering style, form and substance
1

Glen E. Mills,
Boston, 1964,
p. 184.

Reason

in Controversy,

Allyn

and

Bacon,

Inc.,

Board of Student Advisers, Harvard Law School, Introduction to

Advocacy,
2nd ed., The Foundation Press, Inc., Mineola, NY, 1976, p. 34.

Dr. T Williams Writing the Grievance Arbitration Brief

that are important for effective brief writing. In reading the

following materials, the advocate should not lose track of the
fact

that

the

influencing

primary

the

purpose

arbitrators

of

the

brief

decision.

is

brief

one

of

which

is

technically well-written but unpersuasive is of little value.

This is not to infer that rules of style and form necessarily
subtract

from

the

persuasiveness

of

the

brief.

To

the

contrary, the essential message of this chapter is that rules

of style and form, if applied with persuasiveness in mind,
will enhance the overall effectiveness of the brief.
The brief is comprised of a number of different sections,
each of which will be analyzed separately.
however, also to view the

It is important,

brief as a whole. The advocate

should bear in mind that the various sections ought to work

together

to

present

logical

case

the

designed

arbitrator
to

with

favorably

systematic

influence

the

and

final

decision.

Most important, since the arbitrators knowledge of

the

is

case

critically

normally
examined

quite
to

limited,

insure

the

that

brief

it

is

should

be

complete,

comprehensive and easily understood.

Dr. T Williams Writing the Grievance Arbitration Brief

II. FORMAT
A. Title Page
The

title

page

provides

the

relevant

identifying

information about the case and should be placed on the front

of the brief.

Illustration 1, which follows, is a sample of a

title page and represents one of many formats that can be

used.

Regardless

of

the

format,

however,

the

following

information should be included:

1. The names of the parties to the action;
2. The name of the grievant;
3. A statement identifying the document as a brief for an
arbitration proceeding;
4. A statement identifying the party for whom the brief is
being written (Union or Employer);
5. An identifying number if appropriate such as an AAA or
FMCS case number;
6. The name of the arbitrator to whom the brief is being
submitted;
7. The names of the spokespersons for each party.
B. Table of Contents
The table of contents serves a double purpose. First, it
allows the arbitrator to locate the various parts of the brief
quickly.

Second,

properly

executed

table

of

contents

provides a summary of the major arguments and sub-arguments

advanced by the advocate. Thus the arbitrator is quickly able
both to overview the major lines of analysis advanced by the
advocate and to locate the text on each argument.

Dr. T Williams Writing the Grievance Arbitration Brief

Illustration II is a sample table of contents. A review

of that sample provides an overview of how to construct a
proper table of contents and also offers a suggested format
for structuring the brief as a whole.3 Several aspects of the
style and format found in the sample brief deserve special
comment. First, the argument section is set out separately
from the materials found in the introduction and conclusion
sections. Thus the format clarifies for the reader that the
introductory and concluding materials are there for purposes
of clarifying, supporting and reinforcing the body of the
brief -- the arguments. Second, the arguments themselves are
highlighted in three separate ways: 1) the main arguments are
set to the furthest left margin, 2) the arguments are set in
all capital letters, and 3) the arguments are underlined.
Clearly this format should leave no doubt in the arbitrator's
mind as to the essential lines of argument and analysis being
advanced by the advocate. Third, where a main argument is
complex, the recommended format encourages the advocate to
provide in the table of contents an outline of the subarguments both for the purpose of helping the arbitrator to
understand the complexities of an argument and to allow for an
easy reference to the supporting text.

The sample brief is modeled after a recommended format for

submitting a legal brief to an appellate court (supra, pp. 36-37).
The author of this article believes that the format for writing a
legal brief can be effectively adapted to brief writing in grievance
arbitration disputes.

Dr. T Williams Writing the Grievance Arbitration Brief

ILLUSTRATION I
TITLE PAGE
IN THE MATTER OF THE ARBITRATION
BETWEEN
INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 85, AFL-CIO
"THE UNION"
AND
THE CITY OF PORTLAND
"THE EMPLOYER"

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

THOMAS WHITE
ARBITRATOR

Reclassification Grievance
Susan Jones, Grievant
AAA File No. 75-390-0127-84

----------------------------------------------------UNION'S POST HEARING BRIEF

-----------------------------------------------------

Representing the Union:

RICHARD KINGMAN
business Representative
Representing the City:
LEON WILLIAMS
Assistant City Attorney

Dr. T Williams Writing the Grievance Arbitration Brief

ILLUSTRATION II
TABLE OF CONTENTS
INTRODUCTION
Page
A. Background

B. Statement of the Issue

C. Statement of the Case

D. Applicable Contract Provisions

ARGUMENTS FOR THE GRIEVANT

I. THE GRIEVANT SHOULD BE RECLASSIFIED TO THE ADMINISTRATIVE
SPECIALIST I CLASSIFICATION BECAUSE SHE HAS LEAD WORKER
RESPONSIBILITY

11

A. The City Improperly Applied the Supervision Category

to the Point Factor Scale.

11

C. Proper Application of the Point Factor Scale Gives

the Grievant Sufficient Rating Points for a
Reclassification to an Administrative Specialist I
Position.

14

II. THE GRIEVANT SHOULD BE RECLASSIFIED TO THE ADMINISTRATIVE

SPECIALIST I CLASSIFICATION SINCE SHE TAKES HER OWN
INITIATIVE TO SOLVE CUSTOMER PROBLEMS

19

CONCLUSION
A. Summary of Major Arguments

26

B. Appropriate, Remedy

27

Dr. T Williams Writing the Grievance Arbitration Brief

III. INTRODUCTION
While convention dictates that certain items be included
in the introduction to the brief, it is important to remember
that the basic purpose behind the introduction is to add
background and clarity to the arguments themselves. Thus the
rule of thumb for the advocate is to provide whatever is
necessary to facilitate the arbitrator's understanding of the
arguments. Consequently, there is no hard and fast substantive
requirement as to what must be contained in the introduction.
Generally, however, as a minimum the introduction will contain
a subsection on background materials, a statement of the case,
a statement of the proposition in dispute and an overview of
the applicable contract language. Each of these four items is
examined separately.
A. Background
Material presented in the background subsection of the
brief normally focuses on procedural matters associated with
the

grievance

dispute.

Included

in

this

material

can

be

notations about the various steps of the grievance procedure,

the process by which the parties arrived at a decision to
arbitrate the dispute, the process by which the parties chose
the

arbitrator,

any

preliminary

matters

submitted

to

the

arbitrator, and any other matters not directly related to the

substance

of

the

dispute

itself.

Usually

this

section

is

relatively brief but may be extended if there are a number of

Dr. T Williams Writing the Grievance Arbitration Brief

procedural problems associated with the dispute and/or the

arbitration hearing.
B. Statement of the Issue
In

many

grievance

disputes

the

parties

are

able

to

stipulate to the statement of the issue. In such a case the

advocate needs simply to present that stipulated statement in
this subsection of the brief. However, if the parties are
unable to agree on the issue statement, then the advocate
needs to present a statement of the issue as viewed by the
party he/she represents. In general, arbitrators draw their
authority from the labor contract thus the advocate should
frame

the

issue

to

specify

what

portion(s)

of

the

labor

contract is deemed to have been violated. Additionally, while

parties at times choose not to present the question of remedy
as

separate

issue,

to

do

so

clarifies

the

arbitrator's

authority.4 An example of an issue statement that identifies

the contract language in dispute and grants specific remedial
authority to the arbitrator is as follows:

There is some dispute in arbitration circles as to whether the

arbitrators have the right to remedy a finding of a contract
violation where the parties do not specify that the question of
remedy is properly before them. Most arbitrators take the position
that the question of remedy is inherent to a question of possible
contract violation. For clarity's sake, however, this entire issue
can be side-stepped simply by providing the arbitrator with a remedy
question as part of the statement of the issue. For a more complete
overview of this issue, see Owen Fairweather, Practice and Procedure
in Arbitration, 2nd ed., The Bureau of National Affairs, Washington,

DC, 1973, pp. 494-497.

Dr. T Williams Writing the Grievance Arbitration Brief

1) Did the City violate Article X, Section 5 paragraph

(a) by not reclassifying the grievant to the
Administrative Specialist I classification?
2) If so, what is the appropriate remedy?
C. Statement of the Case
The statement of the case is often referred to as a
statement of facts.

This subsection provides the arbitrator

with a clear overview of the incidents and events that led up

to the grievance.

Good advocacy recognizes the difference

between information provided as fact or evidence and the

arguments that are constructed from those facts.
Consequently, the arbitrator must be able to recognize facts
as facts.

It is perhaps helpful to think of the statement of

the case as being a story presented to a person (the

arbitrator) for the purpose of providing a comprehensive
understanding of the events in question.
In writing the statement of the case, the advocate should
focus on two essential goals. The first is clarity.

The

advocate may have spent many hours, if not days, reviewing all
of the essential history and facts behind the dispute.

The

arbitrator, on the other hand, is completely new to the

dispute and thus relies exclusively on the information
provided during the hearing and in the brief to clarify all
relevant matters in the dispute. Consequently, what may appear
very obvious to the disputants can be obscure to the
arbitrator and thus needs to be carefully explained.

Dr. T Williams Writing the Grievance Arbitration Brief

Second, the statement of the case provides an opportunity

for the advocate to emphasize those facts which are essential
to the line of analysis will be advanced in the argument
section.
record.

Care should be taken not to distort the factual

To do so is not only disorienting to the arbitrator,

but in the end may also weaken the advocates credibility

which is essential to persuasive argument.
In writing the statement of the case there are a number
of approaches which may be taken.

One, which is perhaps most

effective, is for the advocate to simply put forward the

chronological history of the case as it unfolded.

This may

include background on the grievant, i.e., date of employment,

work record, etc.

Where the case involves contract

interpretation, a note on the history of bargaining may well

be appropriate.

Again, however, the statement of the case

should be written in a straightforward, non-argumentative

fashion.
D. Applicable Contract Provisions
Little

needs

introduction.
the

disputed

Moreover,

the

to

be

said

about

this

part

of

the

The arbitrators analysis is facilitated when

contract

language

advocate

will

can
find

be

quickly

more

easily

referenced.
construct

arguments if the citation for contract language is already

contained in the brief as opposed to referring to language
found in an exhibit.

Thus this subsection functions primarily

Dr. T Williams Writing the Grievance Arbitration Brief

10

for the purpose of expediency and efficiency. Consequently the

advocate

should

include

in

this

subsection

any

portion

of

contract language to which argument will refer.

IV. BODY OF THE BRIEF

The body of the brief is composed exclusively of the
major arguments of the advocate and this section is the heart
of the advocate's brief.

The significance of this section is

emphasized by stylistically elevating its importance over the

introduction and the conclusion.
for

the

purpose

of

identifying

Roman numerals are reserved

main

arguments

and

these

arguments are further emphasized through the capitalization of

all letters and by underlining (see Illustration II).
The arguments should be developed to reflect a clear and
consistent theory of the case. The theory of the case is the
interpretation placed on the facts by the advocate and put
forward through the main

arguments.

In other

words, the

arguments taken together (theory of the case) reflect what the

advocate believes to be the strongest case that can be built
to

support

or

prove

the

primary

contention.

(The

term

primary contention refers to the basic position taken by the

advocate toward the issue

in dispute.

For example: The

discharge

of

the

was

cause

violation

of

the

grievant

agreement.)

for

just

The

advocate

and not
should

in

keep

several factors in mind when developing the theory of the

case.

Dr. T Williams Writing the Grievance Arbitration Brief

11

First, the main arguments will each head a subsection in

the

body

of

the

brief.

The

advocate

should

begin

each

subsection by stating the argument in exactly the same fashion

as found in the Table of Contents, i.e., using Roman numerals,
capitalization of all letters, and underlining.

The substance

of each subsection is devoted to the development of the main

argument.

If the main argument is extremely complex then the

material should be further broken down into a series of subarguments.

Second, in developing the main arguments, the advocate
must focus on the specific nature of the dispute between the
parties.

Typically, there are four different generic types of

disputes.

They are disputes over: 1) fact, 2) definition, 3)

value, and 4) policy or action.5

In a dispute over fact, the

parties disagree as to what actually occurred, for example, in

a discharge case involving the issue of theft, the dispute
might focus on whether or
grievant.
be

given

not something was taken

by the

A dispute over definition focuses on the meaning to

a

word

or

event,

e.g.,

in

modified

seniority

provision does the word training mean formal training, inservice training or on-the-job training.
concerned

with

the

weight,

value,

A value dispute is

utility,

or

quality

of

something, e.g., how much weight or credit ought be given for

a

good

employment

record

or

bad

employment

record

Douglas Ehninger and Wayne Brockriede, Decision by

Dodd, Mead & Company, New York, 1963, pp. 240-241.
5

Dr. T Williams Writing the Grievance Arbitration Brief

in

Debate,

12

discipline or discharge case.

In a policy or action dispute,

the parties generally agree as to what occurred but can't

agree on what the proper policy or action ought be in response
to

the

situation.

employer

might

division

justified

For

argue
a

example,

that

layoff

in

layoff

reduction
without

in

dispute

business

regard

for

in

the
one

plant-wide

seniority, while the union might contend that a reduction in

one division did not justify such a layoff.

Typically, a

dispute over policy or action also involves either a factual,

definitional or value dispute.
Regardless of whether the central dispute between the
parties is a matter of fact, definition, value, policy, or any
combination of these four, the advocates theory of the case
must clarify the type of dispute. To put it another way, while
it may be obvious that the parties disagree, the focal point
of that disagreement may be vague. Thus, in writing the main
arguments,

the

advocate

must

lead

the

arbitrator

to

the

specific point of dispute.

Third, the relationship between the main arguments can
either

be

parallel

or

in

series.6

In

the

parallel

relationship each argument stands independent of the other

argument

and

in

direct,

supporting

relationship

to

the

primary contention. Consequently, each of the main arguments,

in

and

of

themselves,

may

be

sufficient

to

justify

the

adoption of the advocates position. Illustration III depicts

6

Ehninger and Brockriede, pp. 234-236.

Dr. T Williams Writing the Grievance Arbitration Brief

13

the relationship between main arguments and primary contention

in the parallel form of argument development.
ILLUSTRATION III
PARALLEL STRUCTURE
First Argument
Second Argument
Third Argument

PRIMARY CONTENTION

The following is an example of the parallel form in a

discharge dispute from the employers perspective:
1. The proven charges against the grievant are of such
a serious nature that discharge is justified on a
first offense.
2. The grievant's very poor work record and numerous
written warnings support the employer's decision to
terminate him.
3. The contract requires that the employers decision
to terminate be upheld if the arbitrator finds that
the charges against him are true.
A major problem area with the parallel form of argument
is the tendency of advocates to use the shotgun approach.
In the shotgun approach, the advocate places in the brief all
possible arguments that can support his/her position.

This

approach is often motivated by the advocates concern that an

argument might be overlooked which the arbitrator would find
persuasive.

While there is that risk, on balance the shotgun

is probably more likely to weaken the advocates case than to

strengthen
substantial

it.

In

reading

strength,

the

numerous

arbitrators

arguments
attention

that

lack

may

stray

from those arguments critical to the advocates position.

Dr. T Williams Writing the Grievance Arbitration Brief

In

14

such

case,

the

arbitrator

may

not

see

the

important

arguments with the clarity that is essential for effective

persuasion.

Thus, the advocate is better advised, when using

the parallel form, to select and develop only those arguments

which are well supported and which are vital to the advocates
theory of the case.
One approach to ensuring that the arguments chosen are
important
Under

to

this

the

case

technique,

is

called

each

the

argument

why-because
must

stand

because relationship to the primary contention.

if

there

is

just

cause

discharge

dispute

in

method.
a

why-

For example,
before

the

arbitrator, then the advocate for the union will usually be

contending that the employers action failed the test of just
cause.

Applying the why-because writing aid would result in

the following structure:

Primary
Contention:
The
employers
actions
in
discharging the grievant fail the tests of just cause
WHY (do I support the above contention)?
(Because) 1. First argument
(Because) 2. Second argument
(Because) 3. Third argument
The words why and because are not written into the
brief,

rather

advocate.

they

reflect

The why-because

the

thought

method of

process

of

the

structuring arguments

places a heavy burden on the advocate to state the arguments

in such a fashion that each very clearly and logically stands

Dr. T Williams Writing the Grievance Arbitration Brief

15

in a supporting role to the primary contention.

Arguments in

a brief are presented as proof and this relationship should

not be obscured.

Arguments that stand only in a weak or

tangential relationship to the primary contention fail the

why-because test and should not be developed in the brief.
In the series structure, arguments are related in the
fashion of a chain.

In a chain each new argument is dependent

upon the previous argument and, in turn, forms the basis for
the

next

argument.

Thus,

if

any

one

argument

is

proven

incorrect, the entire chain collapses. Illustration IV sets

out the serial structure.
ILLUSTRATION IV
SERIES STRUCTURE
First
Argume

Second
Argument

Third
Argument

Fourth
Argument

PRIMARY
CONTENTION

The following is an example of a serial argument used to

build the unions case for a layoff/seniority dispute:
1. Bob was notified that he was being laid off.
2. Bob is senior over Tom, Bill and Harry.
3. Bobs attempt to bump Bill, Tom and Harry was denied
by the employer.
4. The labor contract grants bumping rights by
seniority.
5. Therefore, (primary contention) the employers
denial of Bobs bumping rights is in violation of
the labor contract.
Fourth,

regardless

of

whether

the

advocate

uses

parallel or series structure, the substance of each argument

Dr. T Williams Writing the Grievance Arbitration Brief

16

must

integrate

arguments,

the

facts

therefore,

with

consist

contract

of

provisions.

step-by-step

The

reasoning

process that emphasizes the facts and their relationship to

relevant

contract

language

and/or

the

practices

of

the

parties.
Finally, a major substantive and stylistic problem often
encountered when crafting the argument section of the brief,
concerns the use of citations.

While some arbitrators take

the view that they were hired by parties to render their own
unique, independent judgment on the dispute; most arbitrators
are receptive to the authority provided by the work of other
arbitrators where that work closely parallels the facts of the
instant dispute.

Consequently, citations can be useful to the

advocate. However, in using citations, the advocate should be

sensitive to two problem areas.

First, the advocate must be

clear about the purpose behind the use of the citation.

it,

for

instance,

being

used

to

establish

Is

general

arbitrational principle; if so, then what is that principle?

Or, perhaps it is being used as authority to help give weight
to the position taken by the advocate.

If so, it is important

that the advocate conclusively establish that the instant case

and

that

being

cited

are

essentially

similar

in

nature.

Second, lengthy quotes generally do not serve a constructive

purpose in the text of the brief.
gets lost in the extended verbiage.

The specific point often

Rather, the advocate is

generally best advised to summarize the point and add emphasis

Dr. T Williams Writing the Grievance Arbitration Brief

17

with

short

arbitrator

citations.
should

If

review

the
a

advocate

long

believes

excerpt

from

that
the

the

prior

arbitration decision, then that decision should be attached as

an appendix to the brief.

V. CONCLUSION
The conclusion of a brief provides both a quick summary
of the advocates case and a statement as to the relief sought
(deny the grievance or make the grievant whole).

The summary

portion of the conclusion should be short, and in most cases

will be a simple one or two sentence statement of the basic
theory of the case.

It is not necessary to summarize all of

the arguments presented in the body of the brief.

The

conclusion

of

the

brief

should

also

inform

the

arbitrator what action the advocate is requesting, such as

affirm, deny, cease and desist order, or a make whole remedy.
Identifying the action that the advocate is requesting should
not be considered just a formality.

The relief one or both of

the parties wants may not be clear, especially when the issues
are relatively complex.

It is discouraging, to say the least,

for advocates to find that they won the case on its merits,
just to find that the remedy provided by the arbitrator is
inadequate.

To help protect against such an eventuality, the

advocate ought be clear and persuasive as to expected relief.

Dr. T Williams Writing the Grievance Arbitration Brief

18

VI. CLOSING COMMENT

Good brief writing integrates proper form and style with
a good sense of persuasiveness.
written

brief

advocate,

can

failure

do
to

much

to

fully

While a technically welladvance

the

understand

the

cause

of

the

psychology

persuasion will, in turn, do much to undermine the brief.

of
Two

concluding observations are presented with the above point in

mind.

First, arbitrators generally are not persuaded by heavy

sarcasm or material which denigrates the other party.

such

as

the

absurd

position

of

my

opponent

Phrases
or

the

ridiculous interpretation of contract language as offered by

the union (employer) detract from the persuasiveness of the
advocates
threatened.

case.

Second,

arbitrators

do

not

like

to

be

Veiled threats such as only a person who lacks

an understanding of the collective bargaining process could

agree with my opponent may not be intended as intimidation
but read as such and work against the advocates interest.
Style and form that help to establish clarity, combined
with material that is both well-reasoned and persuasive, are
the keys to effective brief writing. Advocates who write the
brief with these goals in mind will do much to advance the
cause of their clients.

Dr. T Williams Writing the Grievance Arbitration Brief

19