1. In connection with Bruce Endy’s book, ‘Saving Harry’, Chapter 3, answer the following questions:
a. What was the standard used by the Arbitrators to decide if Harry should be terminated?
b. Was Harry’s termination upheld by the Arbitrators?
c. Did Harry get back pay?
d. How long was Harry out of work?
e. Was Harry reinstated?

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The format for answering question 1 should be broken down a, b, c, d, e, with your answer to follow after each letter.
With respect to each of the cases below
a. Select the ONE quote from the Majority Opinion that best explains, in your opinion, the decision of the Court.
b. Explain, in ONE or TWO paragraphs only, how the quote you have selected supports the Majority’s Decision. Be sure to include in your answer a summary of the Court decision.
In answering the questions relating to the cases below, list the case name and separate your answer in parts (a) and (b). Thus for the first case, Mapp v Ohio, the format should look like the following.
1. Mapp v. Ohio
a. The ONE quote from the Majority Opinion that best explains the decision of the Court.
b. Explanation, in ONE or TWO paragraphs only, how the ONE quote selected supports the Majority’s Decision. Be sure to include in your summary the decision of the Court.
1.. Mapp v. Ohio, 367 U.S. 643 (1961)
2. Miranda v Arizona, 348 U.S. 486 (1966)
3. Obergefell v. Hodges, 135 S. Ct. 1732 (2015)
4. U.S. v Nixon, 418 U.S. 683 (1974)
5. Furman v. Georgia, 408 U.S.238 (1972)
6. Robinson v. Cahill, 303 A.2d 273 (N.J. 1973)

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Chapter 3
The firm I joined in 1974 had twelve lawyers by 1985. A dispute with one of the senior
members and his son resulted in ten of us leaving to establish our own firm, now called Spear
Wilderman, P.C. It wasn’t a pleasant experience. But it worked out well. We wound up
representing a lot of diverse labor unions in a collegial atmosphere. One of our clients was the
now defunct, Cement, Lime and Gypsum Workers Union. They had local unions throughout the
United States and members who, among other things, quarried limestone and worked in the
plants that turned the limestone into cement. As the labor movement contracted, they merged
with another union, then merged again. The union represented workers in Wilkes-Barre, PA,
State College, PA, and at one plant near Martinsburg, West Virginia. I tried arbitrations at all of
those locations.
Martinsburg was about a three-hour drive from Philadelphia. Once, again, Harry had
gotten himself fired. That was all I knew about the case when I drove down on a Tuesday in
May, 1996 to meet Harry and his union representatives. I stayed at a Holiday Inn in Martinsburg,
and the arbitration hearing would be at the same Holiday Inn the next day.
Arbitrators are generally chosen in one of two ways. The parties can simply agree on who
the arbitrator should be. That happens rarely, because most lawyers don’t trust the arbitrator who
might be suggested by the other side, especially if they don’t know the arbitrator personally. It’s
easier to get a list of names from a reputable source, then alternately strike the names of
arbitrators you don’t know, or don’t like, until there is one person left standing. This way is the
most common. Labor lawyers generally use one of two sources for those lists, either the
American Arbitration Association, or the Federal Mediation and Conciliation Service, the
FMCS. The AAA administers its lists. It asks parties to number the arbitrators in the order of
their acceptability and it permits you to strike any you actually hate. Then it compares the two,
returned, lists and it selects the arbitrator that both parties like the best, or hate the least.
The FMCS is a federal agency whose principal mission is to settle industrial disputes so
they don’t lead to strikes. But it also maintains a national list of arbitrators and will send parties a
list of names upon request. It doesn’t administer the list, like the AAA does, it just sends it out
and lets the parties use it as they see fit.
Harry worked for the Acme Cement Company. They had a lawyer from Washington,
D.C., Clifford Oviatt, Jr. Cliff was a gentleman and a scholar. He later went on to become a
member of the National Labor Relations Board, and he has since passed on. But he was truly a
fine man, the kind of lawyer that, if he shook your hand on a deal, you knew it was binding. And,
he was a good lawyer. But one thing is always true about these disputes, lawyers don’t make up
the facts. You have to play the hand you’re dealt. Cliff and I got our arbitration list from the
Page 1 of 16
FMCS. Frankly, I didn’t
know most of the names that were on that list, as they tended to be geographically determined.
We settled on an arbitrator from Pittsburgh that I had never met, but whose biography I liked,
John Morgan, Esq.
I got into Martinsburg just in time to grab dinner at a local diner. I’d been there before. At
seven the union grievance committee arrived with Harry in tow. The Local A-126 grievance
committee was made up of the union’s President, Ben Floyd, Vice President, Bob Joseph, and
Committeemen Ray Christopher, Ron Barrow and Henry Carter. These guys all worked at the
plant, and none was a paid representative of the union. We sat on the beds in my ten by fifteen
foot room to prepare the case for the next morning. I knew everyone except Harry. Ben made the
introductions. Harry looked to me to be about in his mid-forties. He was African American. He
had a little gray in his hair and an attitude in the way he carried himself and spoke. Great, I
“Ben, why don’t you give me the short version, then I can ask some questions.”
“Bruce,” he started, “Harry is a mobile equipment operator. At the beginning of each
shift management assigns members to various pieces of equipment on the basis of seniority. This
way the most senior guy generally gets to pick the equipment that he likes the best. Usually, once
assigned to a piece of equipment, the operator stays on that equipment for the entire day. On
January 25 Harry came in for the 8:00 a.m. shift and he picked the Bobcat. The guys are usually
given a coffee break around 9:30 and most of the guys go to the lunchroom for the break. That
day Harry wasn’t in the lunchroom. One of the supervisors walked into the lunchroom and
looked around for Harry. When he couldn’t find him, he told Stevie Gale, one of the laborers, to
go find him and tell him that he wanted Harry to transfer to the dust truck. Stevie was told to take
over the Bobcat. After the break Stevie and Bill Smith, one of his buddies, went to find Harry.
They went down to the main floor of the plant which has a roadway that runs around the clinker1
storage area, called the craneway. So Stevie and Bill were walking around the craneway in one
direction and Harry was driving his Bobcat in the opposite direction and they were coming
toward each other. Stevie stepped out into the middle of the craneway to waive Harry down, but
Harry didn’t stop. He wound up sort of hitting Stevie.”
“Was Stevie hurt?” I asked.
“Not really,” said Ben, “but the company made him take two days off and said that he
had sore muscles.”
“Okay, let’s back up a little. Harry, tell me about the Bobcat. What is it? What does it do,
and how fast were you driving?”
1 Clinker are small nodules of limestone and other chemical components that have been heated at
high temperatures in a kiln. The clinker is then processed into cement.
Page 2 of 16
“All right. You know what a bull dozer looks like?”
“Yes,” I said.
“Well, the Bobcat is like a little bulldozer. It’s a front end loader. It’s only about five feet
high and maybe seven feet long and you sit up on top of it to drive it using two levers for right
and left. It has a bucket on the front. I had just dropped a load of clinker in the storage area and I
was headed back to take my coffee break.”
“How fast were you going?” I asked.
“Maybe as fast as you can walk. These things don’t go very fast.”
“Okay, Harry, you’re headed to get coffee, what happens next?”
“Well, these two guys come walking down the craneway, looking at me, laughing and
carrying on and I figured they was just making fun of me. So Stevie steps out into the middle of
the craneway and starts waving his arms and laughing. So he’s standing there and I get a little
pissed, so I decided not to stop. I figured he’d move. When I got on top of him, instead of
moving, he jumped into the bucket, then jumped out. He lost his hard hat in my lap when he
leaned on the bucket. Well he starts shoutin, angry. I’m strapped onto my seat, so I figure I better
not stop now, so I kept on going. I got his hard hat and threw it back to him.”
“Could you have braked before you got to him?” I asked.
“Well, the Bobcat ain’t got no breaks. You just move the levers back. But I thought he
would move out the way.”
“So, what happened next?” I asked.
“Next?” Harry said. “Well, I stopped the Bobcat at the end of the craneway, and Stevie
and Bill come walking past and Stevie said ‘You done it now.’”
Ben said, “We got called up to the office and they told us what happened. I think that
they took statements from Stevie and Bill Smith. Anyway, they asked Stevie and Bill to tell what
happened. They asked Harry for his side of the story and he said pretty much what he said here.
Harry did say he let off the throttle as soon as the Bobcat hit Stevie, but when Stevie started
hollerin he figured he was mad so he just went on to the end of the craneway. They told Harry to
punch out and go home and to come back at nine the next morning.”
“What happened the next morning?” I asked.
“Well, we all came up to the office at 9:00 o’clock and they said that Harry was fired. He
was told to clear out his personal belongings and leave the plant. Two days later Harry got a
written letter from the Operations Manager telling him he was fired.”
“Do you have the letter?”
“Yes, here it is,” Ben said.
I read the letter. It was a one pager. After repeating a few of the facts the letter said:
Page 3 of 16
This is a flagrant disregard for the safety of other employees and cannot be
tolerated. Only the quick reactions of the other employee who grabbed the back of
the bucket to keep from going under the machine prevented a possible fatality.
The employee lost two and a half days of work because of bruises and sore
muscles as a result. For your total disregard for the safety of others while
operating equipment that could have resulted in a more serious injury or fatality to
a fellow employee, you are hereby terminated.
“Harry, let me ask you a few questions. How long have you worked for Acme?”
“I think it is about twenty-four, twenty-five years,” he said.
“And have you ever been disciplined before, you know, suspended or written up?”
“Well, there have been a couple of times,” he said.
“Tell me about them,” I said.
“Before you get to that,” said Ben, “we have in our contract that you can’t use any
discipline that’s more than two years old.”
“Let me take a look,” I said, and grabbed the contract. Sure enough, it said: “suspensions
of more than five days antedating a period of two years on the active payroll during which time
no other reprimands or suspensions have been received will be removed from the employee’s
“Well, Harry, anything in the past two years?”
“Just one,” he said. “Almost two years ago, I had a disagreement with the foreman over
my right to operate the equipment that I wanted. They insisted that I take the Bobcat, and I
wanted a bigger truck based on my seniority. So when they wouldn’t give me the truck I told
them I was going home. I had a fifteen-day suspension for insubordination that was later reduced
to a five-day suspension.”
Not helpful, I thought. “Ben, do you have the grievance papers for our case tomorrow?”
“Sure.” He said. “Here.” He handed me a one page grievance dated January 28. It was
succinct. It said “Local A-126 and its members object to management for terminating Harry from
employment with Acme on 1-24. Harry is being accused of striking another employee with a
small end loader (BOB CAT). This is excessive discipline and the local and its members are
asking that Harry’s termination be reduced to five days and consideration be given to
disqualifying him from mobile equipment.” There was also a three-page handwritten account of
the meeting with the union and company on January 23 and a letter from Acme on its letterhead
dated May 4 outlining the settlement of Harry’s earlier insubordination grievance from fifteen
days to a five-day suspension.
I explained to Harry what was going to happen the next day. “It’s important,” I said, “that
Page 4 of 16
you not say anything while the company puts on its case. Whisper to me if you have questions.
We will get our chance, and then you can tell your story.”
All right, I thought that we were done for the night. I needed a couple of hours to think
about our case. I like to have a theory of the case before we go into an arbitration so I can make
an opening statement that makes some sense. If I don’t have much for an opening I can reserve
my opening until after the company presents its case. I needed to figure out what I was going to
I had one more problem. I read the collective bargaining agreement front to back and
back again, and there was no “just cause” language in the usual place in the agreement. It didn’t
say that the company could discipline for “just cause.” Instead it said that the “right to hire,
suspend, discharge, discipline, layoff, promote and transfer employees is based exclusively in the
Without a “just cause” standard to guide an arbitrator, what limits, if any, were there on
the company’s right to fire Harry? Most workers in this country don’t have unions, and, as a
corollary, they don’t have contracts of employment. If you work at a company that’s big enough,
it probably has an employment policy manual. If you care to read it, it will say that you are an
“employee-at-will.” This may have slightly different meanings in each of the fifty states, but
generally, it means that you can be fired by your employer for any reason, or for no reason, as
long it’s not one that violates a specific law, like the prohibitions against race, sex or religious
discrimination, or because you got a subpoena to attend to jury duty. If your boss doesn’t like
brown shoes, you’re out. If she doesn’t like facial hair, you’re out. If you owe money to a
collection agency, you’re out. The laws that protect employees from arbitrary discharge are few
and far between. If your company isn’t big enough to have an employment policy manual, it
doesn’t matter. You are an employee-at-will unless you have a contract that says otherwise.
That’s what union collective bargaining agreements do. They say otherwise. They generally say
you can’t be fired except for “just cause.”
There were two things I could argue. The first was that the contract clearly gave the
union the right to grieve and arbitrate discharge cases. So, if they had that right it had to mean
something. If the grievant’s only right to arbitration was to test the reality of the employer’s
words “you’re fired,” that would be absurd. Why give the union an empty right? Secondly, the
words ‘just cause’ did appear in the agreement. Under the section on “Seniority” it was provided
that “Seniority shall not be lost for any of the following reasons: * * * If discharged for just
cause.” Well, technically, we weren’t arguing about seniority, but about discharge. But putting
the two clauses together had to strongly imply that the company had to have “just cause” in order
to discharge Harry. And if you’re wondering who negotiated this agreement? It wasn’t me.
Page 5 of 16
I spent the next two hours thinking about my theory of the case and re-reading the
collective bargaining agreement. One thing was curious. Harry wasn’t fired for injuring Stevie
Gale. He was fired for disregarding the safety of another employee. I was sure that if Gale had
been really injured, Harry would have been fired for causing the injury.
All right, I had two issues to deal with and two theories in my head. It was time to go to
Like the words of the old song, “Up in the morning, out on the job, work like the devil for
my pay. . . .” It was up early, a quick breakfast at the diner where I met the committee, and back
to the Holiday Inn to meet our arbitrator.
“Good morning, Mr. Morgan,” I said, as we walked into the meeting room at the motel.
“I’m Bruce Endy,” and I stuck out my hand.
“Good morning, Mr. Endy” he responded. “Please have a seat gentlemen, we can get
started as soon as the company gets here.” The arbitrator looked to be about my age, fifty-one, or
a year or two younger. Dressed lawyerly, in a dark suit and tie, he seemed genial, which I liked.
“I’m going to pass around a sign-in sheet. Please just print your names and positions so I can
keep track of who’s who as we go along.” The committee started printing, deliberately.
“We are also waiting for our grievant,” I said to the arbitrator.
Cliff Oviatt and his clients followed us into the room about three minutes later, and the
same introductions took place. Cliff had nine people in tow, including the two union members
who were going to testify against Harry: Stevie Gale and Bill Smith. It took another five minutes
before Harry showed up.
Harry was dressed to kill: brown tee shirt and denim bib overalls. He looked tired, like he
had been up all night; maybe he was. Great. I introduced Harry to Mr. Morgan.
Mr. Morgan asked everyone if they had signed his sign-in sheet, and began the hearing.
Like many arbitrators, he asked if anyone minded his using a tape recorder to record the
proceedings as there is almost never a court reporter present who takes down the testimony
verbatim. No one objected.
“Gentlemen, I understand this is a discharge case, is that correct?”
“Yes,” I said, together with Cliff Oviatt.
“All right, Mr. Oviatt, Mr. Endy, can we agree on the issues you are asking me to decide
“I think that we have the usual issue,” I said. “Did the company have just cause to fire
Harry, and if not, what should the remedy be?”
“Well, I can’t agree to that statement, as you said it, Bruce,” said Cliff. “The Company
doesn’t believe that it needed just cause in this case, Mr. Arbitrator, because it thinks it reserved

Page 6 of 16
the right to discharge without just cause in the labor agreement.”
“We strongly disagree Mr. Morgan,” I jumped in. “The labor agreement is clear that the
union has the right to arbitrate discharge cases. Elsewhere in the contract it also provides that
you can’t lose your seniority except by reason of a discharge for just cause. When you put the
two together the labor agreement clearly provides that the company needs just cause for a
“Can you both agree to this?” Morgan said. “Did the Employer violate the parties’
collective bargaining agreement when it discharged Harry, and if not what should the remedy
“Yes,” I said, “I can live with that.”
“That’s fine,” said Cliff.
“Very well, Mr. Oviatt, do you have an opening statement?”
“Well, I’m not going to make a lengthy argument, Mr. Morgan. We intend to file a posttrial brief following today’s hearing, and we will present our arguments in our brief. For our
here, today, it’s enough to say that the grievant was operating a piece of very heavy machinery in
the plant when another union member, Steven Gale, was sent to locate him and instruct him that
he was to operate a dust truck. Mr. Gale walked into the middle of the craneway when Harry was
about 75 feet away and waived his arms for him to stop. Instead of stopping he ran Mr. Gale
down. This was such a serious breach of the safety rules here at the plant that discharge was
deemed the only appropriate discipline in this case. In an industrial business such as the
manufacture of cement, safety is of the highest concern and we will establish the lengths the
company has gone to instruct its workers to work safely. Safety at the company is federally
regulated and supervised by the Mine Safety and Health Administration. In such an atmosphere,
the employer would be irresponsible if it did not place a strong emphasis on safety.”
“Mr. Endy, do you wish to make an opening?”
“Mr. Morgan, I think I would like to reserve the right to make my opening at the
conclusion of the company’s case.”
“Very well, let’s get started. Mr. Oviatt, you may call your first witness.”
“Acme calls Steven Gale.”
“If everyone agrees,” said the arbitrator, “I have a chair here by me that can serve as the
witness stand. Mr. Gale why don’t you come up here where everyone can see and hear you. Do
you swear to tell the truth in this matter?”
“I do.”
Cliff Oviatt walked Gale through his testimony and there weren’t too many surprises. He
Page 7 of 16
testified that he thought Harry was twenty-five to thirty feet away when he stepped out into the
middle of the road and waived his arms to get Harry to stop. He felt Harry hit him intentionally
because he was sure that Harry saw him. He said he was surprised when Harry didn’t stop and he
was struck by the bucket of the Bobcat at about the shins. He pitched forward and grabbed the
back of the bucket and was able to jump from the bucket to the side of the machine.
My turn.
“Mr. Gale, you testified that you have operated the Bobcat yourself, is that correct?”
“And is it common when someone is driving the Bobcat for other workers to walk
alongside the machine and talk to you while you are driving?”
“Well, it happens. It doesn’t happen all the time.”
“And after Harry hit you, did you say anything to him?”
“Well, he didn’t stop, so I couldn’t talk to him.”
“Are you testifying that you didn’t call out to him?”
“No, I did.”
“In fact, you were pretty mad at being hit, is that true?”
“So, after you jumped to the side of the machine, you started hollering at Harry.”
“Yes, I suppose.”
“And you told him that he was done. Is that right?”
“Well, that was later after he stopped.”
“So, he did stop?”
“Yes, at the end of the craneway.”
“He just didn’t stop while you were hollering at him?”
“Now, when you jumped from the bucket, you landed on your feet. Is that correct?”
“Then you walked to the end of the craneway?”
“Then you went up to the office to tell your boss what just happened?”
“So, that between the time you jumped from the bucket, to the time you told your story to
Mr. Johnson, you never checked to see if you were bleeding?”
“Well, I didn’t get hit that hard. I wasn’t bleeding.”
“And you knew that without stopping to roll up your pants and check that whole time. Is
that right?”
Page 8 of 16
“Why did you go to the hospital?”
“Well Mr. Johnson told me to go right after I talked to him. And he told me to take two
days off, too.”
“You mean he told you to take two days off even before he got a hospital report?”
“And have you brought with you any hospital records, or doctor records showing the
results of your examination?”
“Now let me ask you something else Mr. Gale. As a result of this incident were you ever
given any disciplinary suspension?”
“What? No.”
“Well, how about a written reprimand?”
“How about an oral reprimand?”
“In other words, you didn’t receive any discipline of any kind arising out of this incident.
Isn’t that correct?”
“That’s right.”
“Mr. Gale, you admit that in order to flag down Harry you walked out into the middle of
the craneway?”
“In fact, you planted yourself right in the path of that Bobcat, so Harry would see you.
Isn’t that true?”
“Couldn’t he have seen you if you were waiving to him by the side of the craneway?”
“Let me ask you a question, Mr. Gale. If you wanted to flag down a car on I-95 would
you walk out into the middle of the roadway and plant yourself in front of an oncoming car?”
He looked at me, but didn’t answer. “Well?” I said.
“No, I guess not.”
“Why not?” I asked.
“I’d get killed.”
“No further questions.”
Cliff put on Bill Smith. Smith didn’t add anything to what was already said. And I had
only one thing that I wanted him to confirm on cross.
Page 9 of 16
“Mr. Smith, as you and Mr. Gale were walking down the craneway were you talking to
each other?”
“And what were you talking about?”
“I don’t remember.”
“Was it possible that the two of you exchanged a few laughs?”
“Sure, I guess that’s possible.”
“No further questions. Oh, wait. I just have one more question.”
“Mr. Smith, if you wanted to flag down a car on I-95 would you walk out into the
“Heck, no.”
“Thank you, that’s all.”
“Mr. Oviatt, do you have additional witnesses?” asked Mr. Morgan.
“Yes, I do. The company calls Mr. Johnson.”
Johnson was sworn in by the arbitrator.
Mr. Oviatt said, “Would you please tell us your name and your job at Acme.”
“Yes, my name is Richard Johnson and I am the operations manager for Acme. That
that I am in charge of the entire plant and its operations. I manage the workforce and oversee
operations. I don’t do sales.”
“Are you responsible for disciplining employees?”
“Well, I’m the final word on discipline. Supervisors may write up employees, give
reprimands, but I am the only one who can approve suspensions or discharges.”
“And were you the one who decided that the appropriate discipline in Harry’s case was
“Before we get to the specifics of Harry’s case, I am going to show you what I have
marked as Acme Exhibit No. 1,” and Cliff Oviatt gave Johnson a rather thick three ring binder.
At the same time he gave one to the arbitrator and he gave one to me. “Can you tell me what this
“Yes, this is the company’s safety manual.”
“I would like to introduce this as Acme No. 1 Mr. Arbitrator.”
“Mr. Endy?” said the arbitrator.
“Mr. Morgan, I doubt that I’m going to object to this, but, obviously, I’m just seeing it for
the first time and it looks to be about 150 pages long, give or take. I would like an opportunity to
Page 10 of 16
look this over before I agree it’s admissible. It’s about noon, now, why don’t we break for lunch
and I’ll try and take a look at this over the lunch break.”
“That’s all right with me,” said the arbitrator. “How about you Mr. Oviatt?”
“That’s fine,” said Cliff.
As we stood to get up I noticed Harry, for the first time in a while, and it looked like he
was asleep in his chair. That’s just great, I thought. I asked Ben if he would get me a sandwich at
the diner and bring it back so that I could spend some time with this manual. The guys left with
instructions to be back inside an hour. I started reading, skimming, really. But I had an idea
about what I was looking for, and I found it.
We reconvened at one o’clock and I announced that I had no objections to Acme No. 1.
Mr. Morgan said that it was admitted.
Cliff took up where he left off. Johnson testified that safety was important, really
important. They had all kinds of safety rules. Mine safety rules and plant safety rules. Safety is
so important that they recently had a safety review where they collected, in one place, all the
safety rules and put them in a three ring binder, and that was Acme No. 1. Indeed, they had
safety meetings with the employees every month. All kinds of safety concerns were raised at
these meetings so that workers would work safe. Safe, safe, safe. If someone did something that
was unsafe, it was raised at a safety meeting so that nobody else would do the dumb ass thing
again. I needed to ask Ben and the committee a question before I could cross examine Johnson. It
would have to wait until his direct examination was finished.
The rest of Johnson’s testimony was pretty predictable. Johnson went through the facts as
he understood them. He explained that he met with the union and the safety committee to
investigate the incident as soon as it was reported to him, and that he had to send Gale to the
Hospital to get checked out because it was the safe thing to do. What was important to him was
that Harry had made no effort to stop or avoid the accident. It wasn’t important that Gale wasn’t
badly hurt, what was important was that he might have been.
“Your witness, Mr. Endy,” said Cliff.
“Mr. Morgan, before I begin my cross examination, could I have a few words with the
union committee?”
“Of course,” he said. So we recessed. I took the guys out into the hall where I only had
one question for them. “Was the fact that Gale walke

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