The Eight Essential Steps of Grievance Processing - Chapter 11 - AAA Handbook on Labor Arbitration & ADR, 3rd Edition
Mark I. Lurie
Mark I. Lurie is a Member of the Florida Bar and has been a Member of the American Arbitration Association and Federal Mediation and Conciliation Service panels of labor arbitrators since 1978. He is a Member of the National Academy of Arbitrators and has served on its Board of Governors. He is the Editor-in-chief of the series Dispute Resolution in the Workplace. The author wishes to acknowledge, with appreciation, the contributions of arbitrators I.B. Helburn and Chester C. Brisco to the preparation of this chapter.
The primary responsibility of the labor or management advocate is that of persuasion.
• A union advocate must persuade management or, ultimately, an arbitrator that the collective bargaining agreement has been breached and that the dispute is arbitrable. Or, if the advocate thinks that the case lacks merit, the employee/grievant must be persuaded not to proceed.
• A management advocate must persuade the union or, ultimately, an arbitrator that no contract violation has occurred or that the matter is inarbitrable. Or, if the advocate thinks that the union’s claim has merit and that settlement is advisable, the advocate must persuade the employer of that fact and of reasonable terms of settlement.
There are no pre-qualifications for people to become advocates. Nevertheless, achieving persuasiveness demands intelligence, diligence, and, above all (but least appreciated), the methodical development of a theory of the case, meaning the facts and arguments that will persuade others of one’s position. This chapter prescribes an eight-step methodology for developing a persuasive theory of the case.