Tips on award writing

If It Won't Write, It Isn't Write

It is not uncommon to think that you have arrived at a good resolution of an issue only to find out that you have trouble getting your analysis down on paper. That might be an indication that there is a serious problem with your analysis or your conclusion. Writing your award is not merely the process of expressing what you've decided. It is an opportunity to test the logic of your analysis and your conclusion.

It's Not All About the Bottom Line

Parties hire you to make a decision. What you decide obviously matters. However, the parties and their advocates want to know how and why you reached the decision you made. That means that you need to provide your analysis, not just your conclusion. A good award must address all of the key arguments made by the losing party. Parties and advocates want to know that they've been "heard."

Don't Forget the Bottom Line

We spend most of our time deciding and explaining who should win, but less time crafting the language in the award. That can come back and bite us in the butt. Even a simple reinstatement award might require detail as to how to deal with interest on back pay, lost benefits, and what set-offs are appropriate. Reserving jurisdiction to deal with a dispute over the implementation of the award is necessary but not always sufficient.

Get a Proofreader

It is virtually impossible to proofread your own work. Spell check and grammar check programs help. However, if you mean to write "trial" but write "trail," the computer is not going to catch it. It is worth a few bucks to have someone do a clean read of your award before you get it out. That reader may also pick up on distracting repetition and logic leaps that are missing a step.

"Get Ahead, Stay Ahead"

My daughter was a pitcher. Her high school coach's mantra was "get ahead, stay ahead" - referring to balls and strikes. This mantra is equally important for getting awards out on time. Do not get a reputation for being late in issuing awards. Equally important, do not create undue stress for yourself by writing while facing a last minute deadline. You should start writing up the statement of facts for your award as soon as the transcript lands on your desk. Then, when the briefs come in, you can correct any errors or omissions in your statement of facts, and consider and address arguments made in the briefs. If you're heard a case without a reporter and are going to rely on your notes, it is even more important to get the basics down in a rough draft as soon as possible. Unlike wine, memories do not get better with age.

Remember That You Have Multiple Audiences

What you write will be read and considered by the advocates and probably someone who works for the employer and the union. There are other audiences as well.

If I sustain an arbitrability objection based on a late filing, I assume that what I write will be communicated to shop stewards. If I reject an arbitrability objection because the employer never raised it during the grievance steps, I assume that my award or the analysis of that issue will be communicated to those who are assigned by the employer to respond to grievances. What I write may also be submitted to another arbitrator if the issue is similar to one that later arises between the parties.

Word choices can be very important to employees who were involved in the dispute or the hearing and even to those related to a participant. It's best to rarely accuse a witness of lying. Instead, judge "credibility" and whose testimony merits greater "credence." The answer may depend on who has the better recollection, whose recollection is more consistent with other evidence (e.g., documents or emails), or who was in a better position to hear or see. In cases involving sexual misconduct, be particularly careful with language because it can lead to marital disputes, or create more work-related problems.

Also, use caution when assigning blame, and avoid stating that a result was due to poor advocacy. Instead of saying "the advocate failed to call a critical witness," exchange that with "the record does not support the position advanced by the company."

Make Generous Use of Headings

Good organization will help you digest a transcript and present a case in a logical fashion. For example, in a typical discharge case, the "Statement of Facts" should have the following headings:

Background [When was the employee hired, what was his/her position, any prior discipline, discussion of the nature of employment, work rules, etc.]

Events Leading to the Discipline [What happened, including the testimony the company has presented. Further break down this section into two subheadings: the company's case and the union's.]

The Decision to Discipline [This includes the investigation and reasons a particular discipline was issued.]

Additional Evidence [This might be used if there were collateral issues presented or if there is evidence that does not fit neatly into the other headings.]

Later, in the "Discussion" section, consider these two major headings:

What Did the Employee Do? [This is where conclusions are explained on disputed factual issues.)

What Discipline is Appropriate? [This section might include a discussion as to whether the found conduct of the employee violated the allegations of misconduct, or whether the actions were not violative of any established rule. This section will also discuss whether the level of discipline should be overturned or reduced, even assuming the employee did commit misconduct.]