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Law School Outline - Legal Methods Exam 1

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									Legal Methods Terrell, Section A Exam # 636

The issue in State v. Local 195 is whether the 1859 common law rule “no work, no pay” should be rejected as a basis for denying back pay to unionized public sector employees who were denied overtime assignments by the Department of Corrections. Rules mediate the relationship between fact and truth. When once normative-based rules contradict contemporary notions of truth, judicial chaos is not imminent and those tasked with carrying out justice must rule in its SPIRIT absent textual guidance. Over the last century, the bright line rule “no work, no pay” has been eroded by common law exceptions and legislative statutes. To reject the majority’s strict application of the

no work, no pay rule in the State v. Local 195 would not overrule this state’s long history of relevant precedent but would continue the spirit of public employee protection embodied in New Jersey law. This legal positivist approach most fully

approximates New Jersey law to justice. A sound body of law should reflect the actual feelings and demands of the community. CB 36. Frequently in today’s society,

employees are paid for work they did not perform. Each year, employees are allocated vacation days in which they are paid a daily wage without having to report to work. Following the

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Legal Methods Terrell, Section A Exam # 636 majority’s absolute no work, no pay reasoning, the customary practice of paid vacation time is against state law. There are three reasons to reject strict application of the no work, no pay rule in State v. Local 195. First, the case falls within common law exceptions to the rule developed in Hoboken v. Gear (1859) and subsequent New Jersey case law. Second, the New Jersey legislature has narrowed the rule’s applicability so that its application in State v. Local 195 would violate existing statutory policy. Third, a strict textual approach precludes the contemporary application of justice. I. Common law exceptions to a rule are part of the rules overall substance. As exceptions increase, the bright line rule tends to shift to a more flexible standard. Retracing the common law evolution of the no work, no pay rule is necessary to understand how the rule (and its gaps) ought to be applied today. In Hoboken v.

Gear (1859), court ruled that a former police officer had no contract with the city government to demand specific performance of his salary after his job was abolished, such wages were not the plaintiff’s nor the state’s property to contract, and that “the right to compensation grows out of the rendition of services.” However, citing Mincho v. The Mayor, &c, of New York

(1858), the court recognized an early exception to the no work, no pay rule and stated that had the plaintiff shown he was Page 2 of 13

Legal Methods Terrell, Section A Exam # 636 specifically removed for improper cause, he could recover his salary. P. 26-27. The improper removal exception foreshadowed in Hoboken and codified in subsequent New Jersey statutes drove the court’s decision in Strohmeyer v. Borough (1948). See N.J.S. ch. 139 (1918); N.J.S.A 40:46-34 (1948). In Strohmeyer, the court refused the plaintiff’s action for back pay during a wrongful suspension because N.J.S.A 40:46-34 “gave a right to recover salary for dismissal declared illegal, but not for a suspension.” P. 28. The court, acting as a legislative servant, declined the opportunity to expand exemptions to the rule to complainants who were unlawfully suspended. Statutory law bears proactive application to common law. Courts do not reverse prior decisions due to statutory amendments in order to promote predictability and preserve stare decisis. Although, N.J.S.A 40:46-34 was modified later in 1948 to include the wrongful suspension exception to the no work, no pay rule, the court in Strohmeyer v. Borough (1950) refused to apply the statute retroactively. Interpretive gaps in the common law and statutes are often filled with the work of agencies. The power of state appointed agencies to judicially resolve public employment labor disputes was addressed in Galloway v. Association (1978). In Galloway, the Public Employment Relations Commission (PERC) judicially Page 3 of 13

Legal Methods Terrell, Section A Exam # 636 awarded back pay to unionized secretaries for “the amounts [the plaintiff’s] would have received had their hours not been unilaterally reduced.” P. 31. Citing Skidmore v. Swift & Co. (1944), in which U.S. Supreme Court said agencies should receive deference by courts because agencies are assumed to possess a “body of expertise and informed judgment,” the New Jersey Supreme Court, called PERC’s power to make judicial decisions legislative authority. Id.; Galloway v. Association (1978). The main issue in State v. Local 195 is the improper reduction of overtime work hours to union members. Galloway differs from the current case because the plaintiffs in State seek relief for overtime pay and not regular pay. However, the majority’s reasoning is weak because it does not use Galloway (particularly its use of PERC as a source for judicial inquiry)

to the fill the common law gap between Hoboken v. Gear (1859) and Communications Workers v. Board (1984). Critics of Skidmore’s absolute deference rule prefer the two-tier technique embodied in Chevron U.S.A v. NRDC (1984) which, unlike Skidmore, does not assume all judicial questions have answers. According to Chevron, traditional sources such as statutes and case law should be the first step for judicial inquiry. If such sources are unavailing, Chevron step two says agency interpretations may be used as long as the agency does not act unreasonably or arbitrarily. CB 389-92. Page 4 of 13

Legal Methods Terrell, Section A Exam # 636 PERC Memo No. 127 offers two important comments regarding the no work, no pay rule. First, the desire to abandon the common law rule is well founded within the legislative body. Second, PERC adjudicators should presume back pay is an appropriate remedy for unfair labor practice violations unless proven otherwise. The majority opinion hastily assumes the issue in State v. Local 195 involves a mere breach of a collective agreement. It therefore, fails to use PERC comments on unfair labor practices that directly relate to the current judicial inquiry and are legitimized by the state legislature. The majority opinion also relies too heavily on Communications Workers v. Board (1984) which is distinguishable from the current case. In Communications, the arbitrator lacked the authority to make back pay awards because they were not authorized by the collective agreement. In State v. Local 195, both parties acknowledge that “the collective bargaining contract authorizes the arbitrator to award back pay for violations of the agreement’s overtime provisions” P.8. II. The public sector employee’s rights of unionization and retributive compensation are protected by New Jersey statutory law. Whether courts are servants of legislature or partners to the law-making process, the judicial system should not contradict legislative will. CB 245. Application of this Page 5 of 13

Legal Methods Terrell, Section A Exam # 636 principle is complicated because statutory interpretation is not a simple task. A plain-text statutory analysis is preferred as a traditional starting point for statutory interpretation. CB 258. However, if the text itself does not clarify interpretive ambiguities, then two tools for statutory interpretation is legislative purpose, or what the legislature sought to accomplish on a wider macroscopic level, and tracing an issue’s legislative development. See CB 246-57 (for discussion of legislative intent, a microscopic inquiry, versus purpose macroscopic inquiry). A. Understanding legislative purpose promotes legislative and judicial symmetry “Every statute must be conclusively presumed to be a purposive act.” CB 256. The majority opinion erroneously

misinterprets the legislature’s purpose in the New Jersey Employer-Employee Relations Act in two ways. First, it uses a teleological analysis when the legislative purpose is deontological. Second, it misinterprets the Act’s purpose as to increase efficiency when the real purpose is to promote equitable relations in the workplace. An approach to statutory interpretation can be either teleological or deontological. Teleological statutory

interpretation defines legislative purpose as what a particular statute will bring about in society. The majority’s Page 6 of 13

Legal Methods Terrell, Section A Exam # 636 interpretation of New Jersey Employer-Employee Relations Act is flawed because it focuses on preventing dual payment for work and windfall compensation. However, the New Jersey Employer-

Employee Relations Act is not constrained to the confines of teleological interpretation. The drafters of the statute seem

deontologically driven to vindicate the liberties of public employees. The Act provides that the choice to unionize or refrain thereof is a statutorily protected “right.” Secondly, the majority opinion erroneously assumes the purpose of the New Jersey Employer-Employee Relations Act is to increase judicial efficiency. State v. Local 195 draft opinion. However, efficiency is not inherently good and the quest for judicial efficiency should not mark the expense of equitable policy. Even the title of the Act, “Employee organization;

right to form or join; collective negotiations,” denotes that the legislature intended to increase equitable relations between employers and employees. B. Legislative history is necessary to explain the evolution of relevant statutory law. Application of common law is often altered by modifications to the central meaning of relevant judicial concepts such as “officer” or “illegal.” Often these modifications occur through the legislature. Legislative impact on the no work, no pay rule traces back to 1918 when the Page 7 of 13

Legal Methods Terrell, Section A Exam # 636 legislature enacted a statute that limited redress to municipal officers judicially determined as illegally dismissed, placing public employees who were dismissed with just cause beyond the bounds of redress. N.J.S. ch 139 (1918)(emphasis added). Thirty years later, the legislature expanded the meaning of “municipal officers” to firemen and policemen and broadened applicability to employees illegally dismissed and suspended. N.J.S.A. 40:4634 (1948). Legislative history aids statutory interpretation by providing information about both legislative purpose and intent. CB 360. N.J.S.A. 40:46-34 (1948) is supplemented by the rare

availability of Statement to Bill no. 229 (1948) which was prepared by counsel to the legislature. While few states have any recorded legislative history, committee reports and statements are persuasive based on two common justifications. First, the specificity of the language is evidence that the statements are well considered. Second, pre-enactment statements of special committees are given interpretive weight because they are developed by specialized expertise believed to impact a bill’s fate. CB 360 The terms of the Statement to Bill no. 229 describe the issue of employee’s rights in specific terms. The Statement specifically describes “collective bargaining agreements,” names the Act’s protected class as “municipal employees” and describes Page 8 of 13

Legal Methods Terrell, Section A Exam # 636 conditions set by agencies as important to “labor peace.” The statement particularly mentions “back pay” as relief to illegal suspension and termination. Secondly, the Statement is persuasive because it originated from a committee that acted as counsel to the legislature and accompanied the bill for passage. While no names of specific

committeepersons are provided as added weight to its credibility, the statement deserves particular deference because it was drafted before N.J.S.A. 40:46-34 passed. Such pre-

enactment statements are believed to impact the fate of a bill while weaker statements are those made “after a bill has been passed.” CB 361. The majority opinion is flawed because it failed to use the Statement to Accompany Assembly Bill No. 229, which should be used to understand the will of the New Jersey legislature. The majority’s statement that the statute “demonstrate[s] that the proper forum for changing the law of this State in this context is the legislature” directly contradicts the legislative purpose stated in the statement no. 229 that the judiciary’s reluctance to take a more active role in developing the no work, no pay rule is “problematic and inappropriate.” According to the

statement, the purpose of N.J.S.A. 40:46-34 (1948) was to statutorily fill gaps within the common law protection of

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Legal Methods Terrell, Section A Exam # 636 unionized public employees but it does not direct that such matters should be left to the legislature. III. Formalist application of the no work, no pay rule precludes contemporary application of justice. Adoption of a rule should optimally portray New Jersey law. This Dworkinian approach, views the role of courts to portray the law in its best light, sometimes at the expense of textual fitness. The majority opinion is flawed because it does not undertake either the fitness or best light inquiry in two respects: it misunderstands the central issue of the case and wrongly prefers the economic interests of employers to the rights of employees. First, the central issue of this case is about unfair labor practices, not contractual breach. Hoboken v. Gear (1859) states that “if another has improperly intruded into or usurped [an employee’s] office, the remedy is against the intruder by… action for the emolument.” Hoboken explicitly states that “it is clear that an action of debt upon contract against the city is not the appropriate mode of redress” but a mandamus to force payment should be pursued. P. 26-27. The trial court erred when it classified this case solely as a breach of contract dispute. While the surface of the dispute regards a breach of the collective agreement, the fundamental issue is whether the DOC’s actions constitute unfair Page 10 of 13

Legal Methods Terrell, Section A Exam # 636 labor practices such as inappropriate employer actions to discourage unionization. State v. Local 195 draft opinion. Following Hoboken, the Supreme Court must determine whether the DOC attempted to discourage unionization when it denied unionized workers overtime assignments and whether such action, as a matter of law, warrants redress as described in PERC Memo No. 127. Secondly, the majority opinion contradicts the purpose of the New Jersey legislature. From a policy standpoint, the majority opinion vitiates the very statutory protections that the New Jersey Employer-Employee Relations Act seeks to protect. According to the Act, its protections are not extended to “elected officials, members of boards and commissions, managerial executives, or confidential employees.” This

exception reflects the Legislature’s intent to equitably protect the rights of low to mid-level workers whose status within the workplace does not protect them. The Act recognizes that the statute is not intended to protect upper level employees by placing them as exceptions to its protection. Not only are such limitations indicative of legislative intent, these statutory exceptions are very much a part of the overall substance of the Act itself. In the present case, the DOC improperly denied overtime to unionized workers and assigned the overtime to an upper level Page 11 of 13

employee.

Legal Methods Terrell, Section A Exam # 636 By assigning Mr. Guinta, a supervisor and non-union

member, to overtime positions reserved for union members, the DOC arguably attempted to discourage employee unionization. The majority’s opinion has vast policy implications because it allows employers to commit the very injustice the Act sought to prevent-unfair labor practices against unionized workers. If the Supreme Court allows such practices to go unchecked, such a ruling would contradict both legislative purpose and intent embodied in the Act. When competing principles clash, the judiciary must chose that which does the least harm to the law. The majority’s

opinion is consumed by its passionate efforts to be fair to the DOC by preventing dual compensation for union workers and paying for the same service twice. See generally CB 54. In its quest

for fairness the majority abandons its responsibility to promote justice embodied firmly in both the common and statutory law of New Jersey. The strict application of the no work, no pay rule should be abrogated. The DOC should be held responsible for its

admitted wrong and should compensate the union workers by awarding back pay relief.

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Legal Methods Terrell, Section A Exam # 636 I certify this answer runs 2488 words. My computer counted the words.

P.S. Professor Terrell, I was confused with my statutory analysis. I tried to discuss its development by date but on page 15 of the packet we are told to cite the Statute as “N.J.S.A. 40:46-34 (1918).” This is confusing because the text says the I assumed the “cite

statute is “Effective September 13, 1948.”

as” date was a typo and that the statute date was 1948 NOT 1918. I hope my assumption is correct.

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