Write essay on arbitration ,Establishment clause,Contracts,Contract performance,Defamation.
Horton Automatics and the Industrial Division of the Communications Workers of America negotiated a collective bargaining agreement. It happened in the backdrop of when Horton discharged Employee Ruben de la Garza, the Union appealed to arbitration. The arbitrator found that de la Garza had violated a reasonable safety rule, wasn’t totally convinced that Horton should have treated the violation more seriously than other rule violations. So, the arbitrator ordered de la Garza reinstated.
Can a court set aside the order given by the arbitrator regarding the firing of an employee by an employer on account of violating the workplace rules?
As the facts suggest the workplace rules violations. However, at the time of the violation, de la Garza was on the third offense level of the progressive disciplinary policy (section 1). But an employee is subject to termination at the fifth offense level of that policy. However, in certain “serious” rule violation (Section 2), the employer is permitted to skip a step in the progressive disciplinary policy.
As a matter of fact, an arbitrator’s powers are determined by the terms of the arbitration agreement. The limitations on an arbitrator’s authority must be straight forward and unambiguous. The examination on the part of the reviewing court whether arbitrators overshot their powers, must resolve all the doubts in favor of arbitration. In the present case, the arbitrator found inconsistency in the manner by which Horton exercised unilateral rights with respect to skipping stages in disciplinary actions. As a result of this fact, the arbitrator replaced his judgment for that of Horton. So, as per the law, the arbitrator overreached his powers as described in 9 U.S.C. 10 (a)(4) whenever he inquired into the matters other than the reasonableness of the safety rule as well as the fact that de la Garza had violated it.
The Court finally granted Horton’s motion for summary judgment as well as prohibited the Union’s due to the presence of the plain and unambiguous import with regards to the limitations contained in Article 13 of the CBA.
2. Establishment Clause
5-6 Judge James DeWeese hung a poster in his courtroom showing the Ten Commandments. The American civil liberties union filed a suit, alleging that the poster violated the establishment clause. DeWeese responded that his purpose was not to promote religion but to express his views about ‘warring’ legal philosophies – moral relativism and moral absolutism. “Our legal system is based on moral absolutes from divine law handed down by the God through the Ten Commandments”.
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Does the hanging of poster violate the establishment clause with regards to the divine law, which is presumed to be handed down by God through the Ten Commandments?
The second poster created by the defendant in the courtroom with regards to the Ten Commandments was entitled “Philosophies of Law in Conflict”. There are three prevalent comments with regards to this law:
1. There is a conflict between moral relativism and moral absolutism and the society is moving towards moral relativism
2. As the laws are legislated morally because morality is based on faith. So, there is no such thing as religious neutrality in law or morality
3. The two prevalent views in this case are: either God or man is the final authority for their unchanging standards and standards of behavior change respectively.
The Establishment Clause of the First Amendment which was being applied to the states on account of the incorporation into the Fourteenth Amendment, states that: “The Congress shall make no law respecting an establishment of religion”. So, it is required on the part of the courts that there should be interpretive help to determine the bounds of the Establishment Clause. As the constitutional definition makes clear, not everything that may be termed “religious” meets the definition of “religion.” Therefore, a clear distinction must be made in terms of the existence of the religion and as an institution and belief in the sovereignty of God. Further, an “establishment” of religion, as understood at the time of the adoption of the First Amendment, involved “the setting up or recognition of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others.” Judge DeWeese’s current display falls far short of the original definition of “establishment” in that it involves no coercion. Moreover, for a government law or policy to be constitutional, it must not have a primary effect of promoting or inhibiting religion.
The Courts observed that such a clash of constitutional principle that exists in this case between the shifting sands of Establishment Clause jurisprudence in the religious display cases and the fixed, original words of the Establishment Clause. Therefore, the feasible solution is to fall back to the foundation, the “Constitution’s original meaning”.
9-8 DVG (a minor) was injured in a one-car auto accident in Hoover, Alabama. The vehicle was covered by an insurance policy issued by Nationwide Mutual Insurance Co . Stan Brobston, DVG’s attorney, accepted Nationwide’s offer of $50,000 on DVG’s behalf. Before the settlement could be submitted to an Alabama state court for approval, DVG died from injuries received in a second, unrelated auto accident. Nationwide argued that it was not bound to the settlement because a minor lacks the capacity to contract and so cannot enter into a binding settlement without court approval.
Should Nationwide be bound to the settlement on account of the argument made by Nationwide that it was not bound to the settlement because of the fact that a minor lacks the capacity to contract?
As the vehicle occupied by DVG and driven by KCT was insured under Nationwide policy provided for personal injury liability coverage. On or about September 15, 2011, D.V.G. passed away as the result of injuries sustained in an unrelated motor vehicle accident that occurred on that date. Under the Alabama law, an insurance company is bound to settlement agreement negotiated on behalf of an injured minor. If in case the minor dies before the scheduling of a pro-am hearing that was intended by both sides in order to obtain the approval of the settlement.
According to case law, under the Alabama survival statute, 6-5-462, Ala. Code 1975, an unfiled claim sounding in tort would not survive the death of the person with the claim. A claim on a contract, on the other hand, survives in favor of a decedent's personal representative, regardless of whether the decedent had filed an action before his death. When it was known that DVG’s death was not related to the alleged injuries sustained in the subject accident on March 16, 2011, it was also observed that there had been no complaint filed by or on behalf of DVG, asserting claims for personal injury of UM/UIM benefits.
According to the stipulated facts, a definite contract did exist at the time of DVG’s death. As against the argument put forward by the Nationwide, the court considered the argument incomplete. Therefore, in accordance with the parties’ understanding, such a hearing is still required and the minor’s death does not render that hearing impossible.
4. Contract Performance
10-1 The Caplan's contract with Faithful Construction, Inc. to build a house for them for $360,000. The specifications state “all plumbing bowls and fixtures… to be Crane brand.” The Caplans leave on a vacation, and during their absence, Faithful is unable to buy and install crane plumbing fixtures. Instead, Faithful installs Kohler brand fixtures, an equivalent in the industry. On completion of the building contract, the Caplan's inspect the work, discover the substitution, and refuse to accept the house, claiming faithful has breached the conditions set forth in the specifications. Discuss fully the Caplan's’ claim.
To analyze the claims on the part of Caplan as to whether the conditions set forth in the specifications with regards to Faithful Construction Inc. are proper or not.
This case underlines the importance of conditions of Contract of Performance. In the majority of the contracts, promises of performance, however, are not expressly conditioned or qualified. They are termed as absolute promises. This means that they must be performed, or the parties promising the act would be considered to be in breach of contract.
It is observed that the great majority of contracts are discharged on the basis of performance. It is common practice that whenever the parties fulfill their respective duties, the contract gets terminated. In view of this, there are two concepts: complete performance and substantial performance. As per the complete performance, when a party performs exactly as agreed, there is no question as to whether the contract has been performed. In other words, when a party’s performance is perfect, it is said to be complete. So, any deviation breaches the contract and discharges the other party’s obligations to perform. Most construction contracts, therefore, require the builder to meet certain specifications. If these specifications are conditions, then a complete performance is needed to avoid a material breach. Secondly, according to substantial performance, something short of full, complete or strict performance of duties set out in a contract, excluding work which is affected by significant deficiencies, but performance as to essential terms. Therefore, in the present case, the Caplan's, as per the contract, had categorically intimated the Faithful Construction Inc. that all plumbing work and fixtures should be Crane branded in the house. Keeping in mind the amount of money that the Caplan's were spending, it was necessary for Faithful Construction Inc. to fulfill the Complete Performance Clause. Therefore, Caplan’s claims should be met in the court of law regarding the breach of the conditions.
12-1 Richard is an employee of the Dun Construction Corp. While delivering materials to a construction site, he carelessly backs Dun’s truck into a passenger vehicle driven by Green. This is Richard’s second accident in six months. When the company owner, Dun, learns of this latest accident, a heated discussion ensues, and Dun fires Richard. Dun is so angry that he immediately writes a letter to the union of which Richard is a member and to all other construction companies in the community, stating that Richard is the worst driver in the city and that anyone who hires him is asking for legal liability. Richard files a suit against Dun, alleging libel on the basis of the statements made in the letters. Discuss the results.
To discuss the results which would arise by the acts on the part of Dun as he not only fired Richard but also wrote a letter to the union and other construction companies as to how worst the driver Richard was as well as anyone who hires him is inviting legal liability.
The present issue involves three different laws: Defamation of character, Tort of Libel and Tort of Slander.
As per the law, the defamation of character involves wrongfully hurting a person’s good reputation and the law has the authority to impose a general duty on all the persons to refrain from making false as well as defamatory statements of facts about others. While libel and slander are the two forms of defamation. However, the main difference between the two is the form in which the deformation occurs. Libel consists of any defamation that can be seen, most typically in writing. Slander consists of oral defamatory communication. The elements of libel and slander are nearly identical to one another. Therefore, in the present case, it was unnecessary for Mr. Dun to write a letter to the union, which was clearly intentional on the part of the defendant (Dun) to harm the plaintiff’s (Richard’s) reputation. Also, because the letter was sent to the union, means it was at least more than one person or persons other than the plaintiff who got to know about him. So, as per the given facts, the tort of libel is applicable in this case, where the defendant has taken a step out of anger and caused the defamation to Richard’s reputation. Because of that he might not be able to get another job anywhere after getting fired. Therefore, his appeal should be heard in the Court of Law under Law of Defamation.
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