YOUR FINAL ASSIGNMENT: THE ARBITRATION BRIEF

I. ASSIGNMENT

A. Your final paper is an arbitration brief on behalf of the employer or union (you choose) in a case to be assigned. The brief is due on December 14, 2018. All the materials you will need (except legal research materials) will be posted on Blackboard and will be distributed in class well before the last day of class.
B. The brief should be no more than 10 pages (we will stop reading at the end of the tenth page), double-spaced and in 12-point font.

II. TRADITIONALLY, AN ARBITRATION BRIEF HAS THE FOLLOWING COMPONENTS

A. Table of contents (not necessary for the final paper)
B. Table of authorities (not necessary for the final paper)
C. Short introduction (essential and vitally important)
D. Statement of the issue, which we will provide
E. Excerpts of applicable contract provisions (and sometimes employer policies) (not necessary for this assignment)
F. Statement of facts (not necessary for the final)
G. Argument (essential for final paper)
H. Conclusion (essential for final paper)

1. Should include the requested remedy (essential for final paper)

III. INTRODUCTION

A. The most important part of your brief. It tells the arbitrator the key points (your best arguments). Should be direct and forceful

B. For many advocates, this is first thing written because it brings focus to the principle arguments. It should also be the last thing you write, since it will summarize your key arguments in the order they will be presented

IV. STATEMENT OF FACTS

A. Must never contain ANY argument (except in footnotes pointing out facts that are in dispute and directing the arbitrator to sections of the argument addressing those factual issues)
B. Cite to the transcript and the exhibits so the arbitrator doesn’t have to struggle to find the evidence
C. Don’t make the arbitrator read the same facts twice:

1. If you intend to discuss facts in the argument section, summarize them briefly in the statement of facts and point the arbitrator to the section of the argument where the facts are discussed in detail

V. ARGUMENT

A. The most persuasive authorities are, in order of persuasiveness:

1. Arbitration decisions involving the same parties or contract, and the same issue. This is the common law of the workplace
2. Arbitration decisions involving the same industry or contract language
3. Recognized secondary sources
   a. Elkouri & Elkouri, How Arbitration Works
   b. St. Antoine, Common Law of the Workplace
   c. Brand, Discharge and Discipline in Arbitration
   d. Anything by Hill & Sinicropi
4. Decisions by respected arbitrators (preferably local arbitrators) involving the same or a similar issue
5. You will find arbitration decisions in the Bloomberg BNA and Wolters Kluwer Labor Arbitration Reports. The books may be found in the law library (not sure). The Bloomberg BNA Labor Arbitration Reports can also be found in the Boomberg BNA Labor & Employment Law Resource Center. The Wolters Kluwer decisions are also available online at either the Cheetah or the  IntelliConnect platform

B. External law should be discussed where it’s relevant

1. For example, the FMLA and California Family Rights Act if a grievant was discharged for lateness related to a serious health  condition known to the employer

VI. SOME BIASES AND SUGGESTIONS:1

A. Don’t make the arbitrator work

1. Write your brief like you are writing the award itself
2. Attach all decisions you cite to the brief or create an appendix containing them. Don=t make the arbitrator do the research

B. When citing to the transcript, identify the witness (or speaker, if it’s the arbitrator or counsel), the page and the line

1. For example, “Tr. 61/18 to 62/4 (Standridge)”

C. Don’t overlawyer:

1. No need for pleading paper
2. Only sparingly refer to “Employer,” “Union” and “Grievant.” Use “ABC-TV,” “Local 537” and “Smith” instead

a. No need to introduce acronyms or abbreviations by writing something like: “Fraternal Order of Nurses, Engineers and Technocrats, Local 537 (hereinafter, ‘Foment’).” The arbitrator knows who the parties areBafter all, she sat through the hearing

3. Never, ever do the following: “Cecile Standridge (hereinafter, ‘Standridge’).” Only newbies make this mistake when referring to the
last name of a human

a. Simply refer to her as Standridge or Ms. Standridge, depending on your preference

4. Avoid lawyer words like “hereinafter” or Awherein.@ They=re pompous

D. Keep it simple!

1. For example, why say “prior to” or Asubsequent@ when you can say “before” or Aafter@?

E. Know your arbitrator and her preferences! If in doubt, ask around

1. E.g., some reject Just Cause: The Seven Tests