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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


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                                               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


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                                               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.


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                                                   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


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                                               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


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                                                    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


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                                                    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. 40:46-

34 (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


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                                                    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


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                                                    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


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                                                    Legal Methods
                                               Terrell, Section A
                                                       Exam # 636
employee.   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

statute is “Effective September 13, 1948.”   I assumed the “cite

as” date was a typo and that the statute date was 1948 NOT 1918.

I hope my assumption is correct.




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