WEBVTT 2 00:00:04.716 --> 00:00:08.881 association versus East Orange board of Ed may we, please, have appearances 3 00:00:08.881 --> 00:00:45.474 of counsel. (Appearances tendered.) CHIEF JUSTICE RABNER: 4 00:00:45.474 --> 00:00:50.614 Good morning, Counsel. Please, note that Justice Pierre-Louise Lou will be 5 00:00:50.614 --> 00:00:54.433 participating in this case. She's going to be watching the live extreme and 6 00:00:54.433 --> 00:01:01.112 we will go to around 12:30. I don't think we'll complete the argument by then and 7 00:01:01.112 --> 00:01:07.735 if not we'll take a brief recess for lunch. Mr. Ox if he would. SANFORD R. 8 00:01:07.735 --> 00:01:12.225 OXFELD: With well, the good nudes for you, Your Honor, to the if I'm text message 9 00:01:12.225 --> 00:01:17.473 is nobody speaks faster than I do. So we have a good Chang of making the 12:30 10 00:01:17.473 --> 00:01:27.069 break. In preparing for the argument today, the first thing I did obviously 11 00:01:27.069 --> 00:01:31.989 he is read the arbitrator's award and the he Board of Education made the argument 12 00:01:31.989 --> 00:01:36.166 about the impact of the statute as it should have made pat arbitrator and the 13 00:01:36.166 --> 00:01:41.323 arbitrator ruled in my favor. I then went the on the trial court the chancery 14 00:01:41.323 --> 00:01:47.713 division if Essex counsel to confirm the award beside the in opposition the Board 15 00:01:47.713 --> 00:01:52.598 of Education argued the impact of that statute. The chancery judge I might 16 00:01:52.598 --> 00:01:57.421 add in my opinion anyway that nobody -- no judge in the state is more familiar with 17 00:01:57.421 --> 00:02:03.649 standards of arbitration awards than chancery judges who uniformly face 18 00:02:03.649 --> 00:02:10.583 confirmation cases. That chancery judge in Essex county ruled that the arbitrator's 19 00:02:10.583 --> 00:02:17.587 decision was much more than reasonable debatable. Didn't apply the reasonable 20 00:02:17.587 --> 00:02:21.294 debatable standard. It was correct. Again speaking for the chancery judge 21 00:02:21.294 --> 00:02:25.341 here the award is based on nine contract language and is not contrary to any 22 00:02:25.341 --> 00:02:31.485 law, regulation, or residential. And I do not find there are any public policies 23 00:02:31.485 --> 00:02:36.308 grounds which have been articulated upon which it should be vacated. So I 24 00:02:36.308 --> 00:02:40.718 one in the chancery division. My thought was how did are the Appellate Division 25 00:02:40.718 --> 00:02:48.431 go so far astray? And my first place looking for that is obviously the statute 26 00:02:48.431 --> 00:02:58.848 in question. Public school employees covered by a collective negotiations 27 00:02:58.848 --> 00:03:03.832 agreement shall be entitled to compensation benefits and they monthlyments as 28 00:03:03.832 --> 00:03:09.313 provided in the collective negotiations agreement as if the school facility remained 29 00:03:09.313 --> 00:03:14.246 open for any purpose which I'm emphasizing this and any is a very important 30 00:03:14.246 --> 00:03:19.060 word. And I'm going to to get back to that in a minute and for any time lost 31 00:03:19.060 --> 00:03:25.724 as a result of school closures or use of virtual remote instruction. Well, 32 00:03:25.724 --> 00:03:31.560 custodians are not the coveted by the statute. Because of the word and there, and 33 00:03:31.560 --> 00:03:36.917 you can't be a custodian and work remotely. You have to be in school to work 34 00:03:36.917 --> 00:03:41.614 in the school buildings cleaning them up. So this is statute which says shall 35 00:03:41.614 --> 00:03:50.883 remain open for any purpose and for any time lost as a result of school closures 36 00:03:50.883 --> 00:03:56.908 or virtual instruction simply doesn't address custodians whatsoever. So how did 37 00:03:56.908 --> 00:04:02.487 this thing develop into such a case that's now in front of the Supreme Court 38 00:04:02.487 --> 00:04:07.477 which it's Preet easily decided? Remember in East Rutherford on Ford, you 39 00:04:07.477 --> 00:04:20.776 said that the reasonable debatable standard really is is it plausible? Is the Arab 40 00:04:20.776 --> 00:04:24.932 traitor's plausible president the Appellate Division never addressed that but in 41 00:04:24.932 --> 00:04:30.666 essence found that those two decisions weren't even plausible? That's 42 00:04:30.666 --> 00:04:38.976 mind-boggling. So how did we get there? I then looked at the petition, 43 00:04:38.976 --> 00:04:44.219 I mean, this Court's ganged of our petition opinion and the statement and I 44 00:04:44.219 --> 00:04:48.704 don't know how official this is. I don't know who puts this in writing. I'm 45 00:04:48.704 --> 00:04:53.532 not sure anybody is bound bid it but I looked aat it. The issue to be decided 46 00:04:53.532 --> 00:04:58.072 today was the arbitrator's decision that the East Orange Board of Education violated 47 00:04:58.072 --> 00:05:04.234 the he collective bargaining agreement when its custodial combles which it 48 00:05:04.234 --> 00:05:08.280 ceased paying them extra compensation for reporting for work when schools were 49 00:05:08.280 --> 00:05:12.772 closed for COVID reasonable debatable in light of the statute? Now this says 50 00:05:12.772 --> 00:05:18.628 what you said provided that during a state of emergency school pleas shall be exhibit 51 00:05:18.628 --> 00:05:24.539 quote as if the school facilities remained open end quote. There's, no, he 52 00:05:24.539 --> 00:05:29.616 and. So if the very statute that you identify is as being the subject of ate 53 00:05:29.616 --> 00:05:31.571 scrutiny any here and the second clause. JUSTICE WAINER-APTER: Are you 54 00:05:31.571 --> 00:05:37.940 reading from the website or. SANFORD R. OXFELD: I don't know how 55 00:05:37.940 --> 00:05:40.021 official it is. CHIEF JUSTICE RABNER: We don't want to interrupt your five 56 00:05:40.021 --> 00:05:43.539 minutes but I wouldn't spend time on that. SANFORD R. OXFELD: Okay but 57 00:05:43.539 --> 00:05:47.143 I would spend time to the Appellate Division decision though because that does 58 00:05:47.143 --> 00:05:54.636 the exact same issue. On page eighteen of a slip opinion, the Appellate Division 59 00:05:54.636 --> 00:06:01.130 says the statute every time it's a long sought. You all know what statute I'm 60 00:06:01.130 --> 00:06:06.198 researching is Your Honor equivocal and it cites the statute and it ends as if school 61 00:06:06.198 --> 00:06:14.204 facilities remained open for any purpose three dots. No and. No and I had 62 00:06:14.204 --> 00:06:19.569 argued repeatedly that the statute was intended only for professional staff 63 00:06:19.569 --> 00:06:27.368 that could work remotely because that's what the and says. It's worse that 64 00:06:27.368 --> 00:06:34.369 than that. But for ten years I taught added Rutgers law school on employment 65 00:06:34.369 --> 00:06:37.868 discrimination. I would have failed if anybody submitted this to me. Page nineteen 66 00:06:37.868 --> 00:06:45.996 of the slip opinion, starting on page eighteen. Where as here the COVID state 67 00:06:45.996 --> 00:06:51.605 of emergency school facilities are closed for more than three school days school 68 00:06:51.605 --> 00:06:56.413 employees are object tended pursuant to the terms of of the CBA quote as if 69 00:06:56.413 --> 00:07:01.585 the school facilities remained open for my purpose period. Period end quote. There's 70 00:07:01.585 --> 00:07:06.754 no period here. The assault says is and. The Appellate Division put a period 71 00:07:06.754 --> 00:07:13.605 end quote citing the very statute that it if you wanted to rely upon and miscited 72 00:07:13.605 --> 00:07:17.264 the statute. JUSTICE WAINER-APTER: What are you argues at the meaning 73 00:07:17.264 --> 00:07:22.319 of the words and for any time lost? That's the words that you're saying the 74 00:07:22.319 --> 00:07:25.630 Appellate Division ignored corrected. SANFORD R. OXFELD: For any time lost as 75 00:07:25.630 --> 00:07:29.343 a result of school closures. On listen you can't criticize the legislature 76 00:07:29.343 --> 00:07:34.615 here too much. It was an emergency and they did the best they could to cover 77 00:07:34.615 --> 00:07:38.691 as many basis they could in a short period of time. And -- this was the fear 78 00:07:38.691 --> 00:07:44.921 that schools were not going to reach the hundred and eighty day threshold that May 79 00:07:44.921 --> 00:07:48.646 caused remote teaching and not going to school the statute require a hundred 80 00:07:48.646 --> 00:07:53.126 and eighty days. Maybe the teachers are going to teach a hundred and thirty 81 00:07:53.126 --> 00:08:01.251 days. This statute was clearly time lost as a result of school closures. School 82 00:08:01.251 --> 00:08:05.516 closures didn't impact custodians whatsoever. This statute is that has no 83 00:08:05.516 --> 00:08:08.593 impact on its own and he remembers that's why the Appellate Division nowhere 84 00:08:08.593 --> 00:08:14.732 any purpose period is just a mischaracterization of the statute. 85 00:08:14.732 --> 00:08:20.216 JUSTICE PATTERSON: I am missing the argument as to why that language after the and 86 00:08:20.216 --> 00:08:24.144 changes the result. Are you saying the Appellate Division would be right if 87 00:08:24.144 --> 00:08:29.075 the sentence stopped where they putie period? SANFORD R. OXFELD: It might 88 00:08:29.075 --> 00:08:34.133 be. The Appellate Division might have U.T. might have a better argument that 89 00:08:34.133 --> 00:08:37.597 the arbitrator's decision was not plausible. But when the statute says for 90 00:08:37.597 --> 00:08:44.292 any time lost as a result of school closures, or the use of virtual remote remote 91 00:08:44.292 --> 00:08:49.679 instruction within it's not an or. It's an and. JUSTICE WAINER-APTER: 92 00:08:49.679 --> 00:08:52.287 So that's why I'm asking what is the meaning of that phrase. SANFORD R. OXFELD: 93 00:08:52.287 --> 00:08:57.663 The meaning of that phrase is that if any teacher can't teach a hundred eighty 94 00:08:57.663 --> 00:09:02.812 days I forget what it is now. You have to have four hours a day. I forget 95 00:09:02.812 --> 00:09:07.643 what constitutes a day for I acriteria. But because of remote teaching because of 96 00:09:07.643 --> 00:09:11.022 going to have to do a teacher could not teach the requisite number of hours 97 00:09:11.022 --> 00:09:16.433 the teacher don't get paid. JUSTICE WAINER-APTER: So in high school 98 00:09:16.433 --> 00:09:21.694 just if your view if a teacher would not be able to be in school physically present 99 00:09:21.694 --> 00:09:26.739 for one eighty days that means she would still get paid. SANFORD R. 100 00:09:26.739 --> 00:09:29.483 OXFELD: Yes. JUSTICE WAINER-APTER: Except that additional compensation 101 00:09:29.483 --> 00:09:36.725 benefits, andy monthlyments may be negotiated for additional work 102 00:09:36.725 --> 00:09:39.116 performed. SANFORD R. OXFELD: That's a good question. I I have no idea 103 00:09:39.116 --> 00:09:43.644 what that means. And I'll tell you why. That that's an you just referred 104 00:09:43.644 --> 00:09:53.617 to, Your Honor, is is in the future tense. Except at additional P Par reading (Reading 105 00:09:53.617 --> 00:10:00.206 from text.) -- may be negotiated. It's a future tense. That for the teachers 106 00:10:00.206 --> 00:10:05.937 if they're going to be working remotely but they still need somebody to drive 107 00:10:05.937 --> 00:10:09.646 a student to the debate club that is additional compensation and benefits for 108 00:10:09.646 --> 00:10:17.225 additional work performed that a situation that had not applied before COVID. 109 00:10:17.225 --> 00:10:22.080 JUSTICE PATTERSON: Legislature Mr. Ox if he would absolutely knows how to limit 110 00:10:22.080 --> 00:10:28.201 statutes to teachers. There are more statutes in our statute book that apply 111 00:10:28.201 --> 00:10:33.686 only to teachers than I could possibly count am a right about that? They know 112 00:10:33.686 --> 00:10:38.268 they have a definition and they know how to limit the certain provisions be it 113 00:10:38.268 --> 00:10:45.327 tenure, the whole gamut of provisions that apply to teachers. This is not -- does 114 00:10:45.327 --> 00:10:51.027 not have that limitation. Is it your argument that this only applies to 115 00:10:51.027 --> 00:10:53.994 teachers not to any other school employees? SANFORD R. OXFELD: It applies 116 00:10:53.994 --> 00:11:02.103 to any school employee who is capable of working virtually or working remote. 117 00:11:02.103 --> 00:11:07.471 JUSTICE PATTERSON: And where is that limitation found in the statute? 118 00:11:07.471 --> 00:11:12.536 SANFORD R. OXFELD: After the and. And for any time lost as a result of school 119 00:11:12.536 --> 00:11:16.546 closures or use of virtual remote instruction. I will go a step further, Your Honor. 120 00:11:16.546 --> 00:11:22.175 I'm sorry did I cut you off I'll go eye step further. The Appellate Division 121 00:11:22.175 --> 00:11:28.073 not only mischaracterized the statute pull the a periodent quote when there 122 00:11:28.073 --> 00:11:33.489 was no such thing whatsoever. The Court never got involved in the preemanation 123 00:11:33.489 --> 00:11:39.954 and or not that's the state supervisor eye case and a local Bernie Sanders 124 00:11:39.954 --> 00:11:44.769 case that are all in our briefs. CHIEF JUSTICE RABNER: Let's go back to the 125 00:11:44.769 --> 00:11:51.340 stature language that you're focusing on. But begin with a few clauses before it 126 00:11:51.340 --> 00:11:56.932 says the legislation says public school employees covered by a collective 127 00:11:56.932 --> 00:12:01.031 negotiations agreement. It doesn't say teachers. That sent broader concept 128 00:12:01.031 --> 00:12:06.963 than the one you're advancing? SANFORD R. OXFELD: The first clause clearly 129 00:12:06.963 --> 00:12:08.796 and convincingly broader. CHIEF JUSTICE RABNER: And that's all part and 130 00:12:08.796 --> 00:12:12.067 parcel of the language that you read for us. SANFORD R. OXFELD: Yes, but 131 00:12:12.067 --> 00:12:20.066 it's talking about public employees who schools remain opened and who lost 132 00:12:20.066 --> 00:12:26.193 time as a result of school closure. Yes, it's any public employee who lowest 133 00:12:26.193 --> 00:12:30.229 time result in the school closure or a virtual remote instruction that's what it 134 00:12:30.229 --> 00:12:35.696 says. So it's any public employee who falls into that category and custodians 135 00:12:35.696 --> 00:12:38.881 don't you fall into that category. CHIEF JUSTICE RABNER: What does it 136 00:12:38.881 --> 00:12:44.148 mean to lose time? SANFORD R. OXFELD: AI think what the goal was you 137 00:12:44.148 --> 00:12:50.384 don't meet the one eighty days or the length of a school day. I forget I think 138 00:12:50.384 --> 00:12:57.508 it's four hours constitutes a day to qualify for the one eighty day threshold. 139 00:12:57.508 --> 00:13:03.649 And so because of some mishap on the computer and they couldn't do four hours 140 00:13:03.649 --> 00:13:10.132 of remote instruction they only did three hours that they wouldn't but you want 141 00:13:10.132 --> 00:13:12.854 to be they still get paid that under statute. JUSTICE PATTERSON: Where 142 00:13:12.854 --> 00:13:17.226 in the statute does it say this is what this is about. We see in the statutes 143 00:13:17.226 --> 00:13:22.057 a lot of explanation as to what category is being addressed. Where does it say 144 00:13:22.057 --> 00:13:26.477 that this statute is limited to the circumstances that you say it is limit to. 145 00:13:26.477 --> 00:13:30.301 SANFORD R. OXFELD: I'm just repeating myself the word and for any time 146 00:13:30.301 --> 00:13:34.030 lost as a result of school closures. JUSTICE WAINER-APTER: I think the 147 00:13:34.030 --> 00:13:39.086 reason we're having trouble understanding it. SANFORD R. OXFELD: I'm harder 148 00:13:39.086 --> 00:13:42.593 of hearing. JUSTICE WAINER-APTER: I think it seems like you're moving 149 00:13:42.593 --> 00:13:48.507 that language to modify not the as if the school facilities remained open for 150 00:13:48.507 --> 00:13:54.438 any purpose but instead to modify the word public school employees so it seems like 151 00:13:54.438 --> 00:13:59.148 you're kind of reading the statute to say for any public school employees covered 152 00:13:59.148 --> 00:14:06.390 by collective negotiations agreements who lose time as a result of school closures 153 00:14:06.390 --> 00:14:15.825 or the use of virtual or remote instruction. They has a H Schaap entitled 154 00:14:15.825 --> 00:14:19.313 toll compensation as provided in the he agreement to see to the school remains open. 155 00:14:19.313 --> 00:14:23.257 But this doesn't actually say that so where are you understanding that based 156 00:14:23.257 --> 00:14:27.430 on howly words are currently written and the order had in which they currently 157 00:14:27.430 --> 00:14:35.666 appear only employees who lose time because of the virtual four-hour limit 158 00:14:35.666 --> 00:14:40.398 that you were referring to are covered here. SANFORD R. OXFELD: Respectfully 159 00:14:40.398 --> 00:14:45.543 the know question you asked me reads out of are the statute anything after 160 00:14:45.543 --> 00:14:50.351 and. The way, way you're asking the question what does the word and and that 161 00:14:50.351 --> 00:14:55.404 phrase after and mean. It's like the Appellate Division's period end quote. 162 00:14:55.404 --> 00:14:59.946 JUSTICE PATTERSON: Please, answer the question even if you disagree with it 163 00:14:59.946 --> 00:15:03.294 Sarandon interpretation of the statute giving meaning to every phrase in the 164 00:15:03.294 --> 00:15:09.086 statute is the one I'm urging on you. That for any time lost any public school 165 00:15:09.086 --> 00:15:13.273 employee gets benefits as if the schools remained open for any time lost as a 166 00:15:13.273 --> 00:15:18.735 result of school closures the use of virtual remote instruction. There's no other 167 00:15:18.735 --> 00:15:22.998 interpretation of this statute that gives meaning to every clause and phrase 168 00:15:22.998 --> 00:15:27.517 in that statute and I maintain the Appellate Division recognized that by falsely 169 00:15:27.517 --> 00:15:32.680 putting down a period ended quote when it claimed to cite the statute. And 170 00:15:32.680 --> 00:15:40.634 the other issue getting back to the preempting doctrine for a statute to 171 00:15:40.634 --> 00:15:51.590 preempt a collective bargaining agreement in Bethlehem, in local 1.95 PTE, it Court 172 00:15:51.590 --> 00:15:56.292 when he would legislature intend to override rights established through negotiations 173 00:15:56.292 --> 00:16:01.428 agreement it must do so expressively, specifically and comprehensively. I 174 00:16:01.428 --> 00:16:06.160 would argue therefore the vagaries and the clearly they exist in the statute 175 00:16:06.160 --> 00:16:13.836 have to be interpreted in favor of the unions because the burden. JUSTICE 176 00:16:13.836 --> 00:16:20.743 PATTERSON: But if you're talking about local one nine five, preencompassion had 177 00:16:20.743 --> 00:16:27.232 a very different meaning and that is whether a subject was nonnegotiable. 178 00:16:27.232 --> 00:16:31.448 SANFORD R. OXFELD: Ant at all, Your Honor. Respectfully. In Richfield park this 179 00:16:31.448 --> 00:16:39.324 Court said that if something is nonnegotiable. You can't put tath 180 00:16:39.324 --> 00:16:43.319 collectival. It sure at itth statute at a preempts there are to say different 181 00:16:43.319 --> 00:16:49.303 grounds for something not being negotiable. One ace term examine condition of 182 00:16:49.303 --> 00:16:54.349 employment versus management prerogative. That is Ridgefield Park to the contrary 183 00:16:54.349 --> 00:16:59.386 local one nine five case and the both help me case both stand for the proposition 184 00:16:59.386 --> 00:17:07.465 1973 for a statute to preempt negotiations that statute must speak must do 185 00:17:07.465 --> 00:17:12.844 so expressivelily, specifically, and comprehensively. The statute must. 186 00:17:12.844 --> 00:17:15.903 JUSTICE PATTERSON: Is it your contention that the issue in this case is whether 187 00:17:15.903 --> 00:17:24.235 these subject matters are nonin the beginning orbable or given the public 9804 188 00:17:24.235 --> 00:17:28.257 crisis that occurred or a myriad of statutes that covered Witt all aspect of 189 00:17:28.257 --> 00:17:35.800 employment and life in New Jersey during the COVID period that the legislature 190 00:17:35.800 --> 00:17:42.774 clearly wanted to provide for a payment or a level of payment that it considered 191 00:17:42.774 --> 00:17:47.718 to be appropriate for that -- for the situation that was cornered by schools 192 00:17:47.718 --> 00:17:53.747 and school employees including those whom you represent. SANFORD R. OXFELD: 193 00:17:53.747 --> 00:18:01.196 Yes, I think so. JUSTICE PATTERSON: So is preemption the right term here. 194 00:18:01.196 --> 00:18:05.050 SANFORD R. OXFELD: We argued it was the attorney general brief doesn't 195 00:18:05.050 --> 00:18:12.375 use the word preemption, it uses the word if I could nineteen. JUSTICE 196 00:18:12.375 --> 00:18:17.001 PATTERSON: The attorney general is talked about clarity in the legislative 197 00:18:17.001 --> 00:18:25.268 statement. But but preemption has is a term of art would you agree with me on that. 198 00:18:25.268 --> 00:18:27.637 SANFORD R. OXFELD: And I would there's no evidence that the statute was 199 00:18:27.637 --> 00:18:33.961 no, I don't preempt any term and condition of the collective bargaining agreement 200 00:18:33.961 --> 00:18:40.197 affecting the custodians the blue-collar bookers East Orange presidents the 201 00:18:40.197 --> 00:18:48.102 (Reading from text.) because the statute unambassadorly supersedes. There for 202 00:18:48.102 --> 00:18:52.621 his difference in my mind between supersedes and preempts. JUSTICE WAINER-APTER: 203 00:18:52.621 --> 00:18:56.211 If there was collective bargaining agreement that provided that different school 204 00:18:56.211 --> 00:18:59.650 employees were to earn different amounts of money and it was set Fort You know, 205 00:18:59.650 --> 00:19:03.855 in great detail and then all of a sudden the legislature passed a statute that 206 00:19:03.855 --> 00:19:08.775 said all teachers who have already taught for ten years shall earn one hundred thousand 207 00:19:08.775 --> 00:19:13.605 dollars a year would that preempt whatever amount the teachers were as long 208 00:19:13.605 --> 00:19:18.572 as the legislature said and this applies immediately are you that agrees preempt 209 00:19:18.572 --> 00:19:23.156 whatever the collecting bargaining agreement had said about how much those 210 00:19:23.156 --> 00:19:29.959 teachers should be paid. SANFORD R. OXFELD: I'm not that agrees. I'm 211 00:19:29.959 --> 00:19:32.791 damaging if the statute was specific and and resonance said precisely what you said, 212 00:19:32.791 --> 00:19:37.954 Your Honor that would meet the standards set for it in local one nine five 213 00:19:37.954 --> 00:19:41.880 in Bethlehem. JUSTICE WAINER-APTER: So then what is not specific about 214 00:19:41.880 --> 00:19:46.682 this statute in that it says public school employees Schaap paid as if schools 215 00:19:46.682 --> 00:19:50.418 were open? SANFORD R. OXFELD: For any time lost as a result of a school 216 00:19:50.418 --> 00:19:55.579 closure. I don't know what else I can say it. There's a second clause here 217 00:19:55.579 --> 00:20:00.829 and I heard the argument in previous case. Here's an and Your Honor you're talking 218 00:20:00.829 --> 00:20:05.580 about the or ask in the interpretation. JUSTICE WAINER-APTER: I think 219 00:20:05.580 --> 00:20:09.292 we don't understand what your argument is as to what happens after the and that 220 00:20:09.292 --> 00:20:12.885 meters. That's why we keep asking. SANFORD R. OXFELD: I think you 221 00:20:12.885 --> 00:20:16.829 understand. You may disagree with me respectfully but this statute only applies 222 00:20:16.829 --> 00:20:23.197 to public employees who have lost time as a result of school closures. Because 223 00:20:23.197 --> 00:20:28.231 there's an and there. JUSTICE PATTERSON: You're saying that's only 224 00:20:28.231 --> 00:20:31.728 teachers. SANFORD R. OXFELD: There may be some administrators but certainly 225 00:20:31.728 --> 00:20:36.874 not blue-collar is workers who. There's a real world here. These custodians 226 00:20:36.874 --> 00:20:40.605 went to work every day during COVID. JUSTICE WAINER-APTER: The statute was 227 00:20:40.605 --> 00:20:45.976 amendmented amended on April 14th 2020 light. SANFORD R. OXFELD: Not amended. 228 00:20:45.976 --> 00:20:49.945 It was enacted but, yes. JUSTICE WAINER-APTER: And so based on the way 229 00:20:49.945 --> 00:20:53.681 ire phrasing it, it seems like this only applies to people who had already lost 230 00:20:53.681 --> 00:20:59.781 time. If you would lose time after April 14th, 2020 then it doesn't apply to 231 00:20:59.781 --> 00:21:03.738 you? SANFORD R. OXFELD: No if you think that's my argument, that's not 232 00:21:03.738 --> 00:21:10.725 my argument. I think the final sentence is talks about the future. May be 233 00:21:10.725 --> 00:21:16.325 negotiated I think the rephrase may be talks in the future tense. But listen if 234 00:21:16.325 --> 00:21:24.448 it were not for the word and I think that there's a good argument that perhaps 235 00:21:24.448 --> 00:21:30.393 the arbitrator's award was not appropriately confirmed that it was not feasible 236 00:21:30.393 --> 00:21:39.059 whatever word that you've said used. But with that and there and again, I mean, 237 00:21:39.059 --> 00:21:43.786 that with all respect the Supreme Court argument thought about what that statute 238 00:21:43.786 --> 00:21:48.302 means is not really important. JUSTICE PATTERSON: I am sorry. SANFORD R. 239 00:21:48.302 --> 00:21:52.137 OXFELD: What the Supreme Court thinks that statute means is not really important. 240 00:21:52.137 --> 00:21:59.779 It's is it at least arguable arguable that the arbitrator's decision and the 241 00:21:59.779 --> 00:22:03.481 designates trial court is appropriate. We negotiated for an arbitrator's decision. 242 00:22:03.481 --> 00:22:10.490 JUSTICE PATTERSON: If the Court conclusion that this -- that the arbitration 243 00:22:10.490 --> 00:22:14.403 award contravened the statute you're saying it doesn't matter what we think 244 00:22:14.403 --> 00:22:19.302 of it. SANFORD R. OXFELD: The issue is and I know the chief justice told 245 00:22:19.302 --> 00:22:23.121 me don't pay too much attention but the issue you identified is what was the 246 00:22:23.121 --> 00:22:26.513 was the arbitrator's award reasonable debatable. CHIEF JUSTICE RABNER: 247 00:22:26.513 --> 00:22:30.551 No. The order granting certification says certification is grand. You're working 248 00:22:30.551 --> 00:22:36.107 off the website as though that's binding on the Court. That's not avenue I 249 00:22:36.107 --> 00:22:39.379 suggest you pursue. SANFORD R. OXFELD: Okay but I do think the appropriate 250 00:22:39.379 --> 00:22:46.725 inquiry here is in light of east Rutherford and in light of a whole bunch of 251 00:22:46.725 --> 00:22:51.076 cases that hav come before and after that that in which this Court has repeatedly 252 00:22:51.076 --> 00:22:54.750 said the Court is not to substitute its judgment for that of the arbitrator. 253 00:22:54.750 --> 00:22:59.028 So the only issue as far as I'm concerned before this Court is whether the 254 00:22:59.028 --> 00:23:11.344 arbitrator's decision feasible. Is it reasonably debatable. I was in the 255 00:23:11.344 --> 00:23:15.618 Appellate Division twosomes ago and unreported decision of our robinsvilles. And 256 00:23:15.618 --> 00:23:21.197 the trial court and the appellate Court both said if this had. DOMINIC 257 00:23:21.197 --> 00:23:25.125 DEPAMPHILIS: Before me on first impression you might be right but we cannot say 258 00:23:25.125 --> 00:23:32.265 that the arbitrator's decision was not reasonably debatable. The issue is not 259 00:23:32.265 --> 00:23:36.189 remove what you think the statute is. The issue is the there was a reasonable 260 00:23:36.189 --> 00:23:40.247 debatable interpretation adopt dot arbitrator and by the trial court in 261 00:23:40.247 --> 00:23:44.529 this and I may want respectfully, Your Honor, that although you may not agree 262 00:23:44.529 --> 00:23:50.216 with my and applying to public school employees as a generic class and therefore 263 00:23:50.216 --> 00:23:55.597 only those who are working remotely get the benefit of the statute you mean 264 00:23:55.597 --> 00:23:58.974 not L you may not agree with that. JUSTICE PATTERSON: Was the aargument 265 00:23:58.974 --> 00:24:03.545 that the Arab traitor made. SANFORD R. OXFELD: (Overlapping speakers.) 266 00:24:03.545 --> 00:24:08.367 JUSTICE PATTERSON: The arbitrator said something different than that. 267 00:24:08.367 --> 00:24:12.123 SANFORD R. OXFELD: The arbitrator said it created a baseman so the issue is whether 268 00:24:12.123 --> 00:24:16.181 that -- the arbitrator was correct in the arbitrator's determination; correct? 269 00:24:16.181 --> 00:24:21.761 Not someone else's interpretation of whether the arbitrator's conclusion was 270 00:24:21.761 --> 00:24:28.106 reasonably debatable and respectfully didn't see in the arbitrator's award 271 00:24:28.106 --> 00:24:31.656 the argument that you're now making. SANFORD R. OXFELD: No, I just anxieties 272 00:24:31.656 --> 00:24:35.357 E I made it to the appellate aCourt. I did not make administrate on the arbitrator. 273 00:24:35.357 --> 00:24:41.734 The argument I made to the arbitrator is precisely the argument I'm trying 274 00:24:41.734 --> 00:24:49.059 to articulate the now as a second ground which is the preemption doctrine. 275 00:24:49.059 --> 00:24:52.351 Teachers must get pay a hundred thousand dollars would that preempt the answer, 276 00:24:52.351 --> 00:24:58.382 yes, but then there's I know we're getting far astray but there's there's something 277 00:24:58.382 --> 00:25:03.287 called partial preemanation. The 82 example is I can sick-leave. Teachers 278 00:25:03.287 --> 00:25:12.831 are guaranteed ten sick days year. The preemption sets eye bottom does not 279 00:25:12.831 --> 00:25:16.025 establish the top. And the hypothetical you gave about hundred thousand dollars 280 00:25:16.025 --> 00:25:22.144 I'd are have to look at it legislation the hypothetical legislation but with 281 00:25:22.144 --> 00:25:29.061 that said the boat and the top u. Would have to look at that under the 282 00:25:29.061 --> 00:25:33.539 preemption doctrine set the forth for it Supreme Court in the local one nine five 283 00:25:33.539 --> 00:25:37.071 case. JUSTICE WAINER-APTER: That's all about what the statute says. So 284 00:25:37.071 --> 00:25:42.527 even for sick-leave, for example, if the legislature was were to pass a law 285 00:25:42.527 --> 00:25:45.557 that says teachers only entitled to ten days of sick-leave and everyone shall 286 00:25:45.557 --> 00:25:50.655 receive ten days of sick lever then that's setting both ate for a and I ceiling; 287 00:25:50.655 --> 00:25:53.285 correct? SANFORD R. OXFELD: Exactly correct. But the argument I made to 288 00:25:53.285 --> 00:25:58.260 the arbitrator was the preemption argument which is that this statute does 289 00:25:58.260 --> 00:26:01.735 not preempt the contract language, this does not speak specifically and everything 290 00:26:01.735 --> 00:26:06.672 I've said earlier and therefore and the arbitrator bought that argument. 291 00:26:06.672 --> 00:26:10.270 JUSTICE WAINER-APTER: So the arbitrator and specifically to the statute said even 292 00:26:10.270 --> 00:26:15.740 less leer clear is the legislature's authority to invalidated my jurisdiction 293 00:26:15.740 --> 00:26:21.217 which after pointed party's agreement toll interpret and render an award based 294 00:26:21.217 --> 00:26:24.280 solely on that grate agreement; correct? SANFORD R. OXFELD: That was a 295 00:26:24.280 --> 00:26:29.218 separate sentence that had nothing to do with the when he found the statute 296 00:26:29.218 --> 00:26:36.328 set a base but not a top. JUSTICE WAINER-APTER: Follows that sent you 297 00:26:36.328 --> 00:26:40.490 agree athat that's incorrect right. SANFORD R. OXFELD: No, I never said it's 298 00:26:40.490 --> 00:26:42.895 incorrect. JUSTICE WAINER-APTER: So you're saying the legislature 299 00:26:42.895 --> 00:26:48.374 does not have authority to preempt a collective bargaining agreement ever. 300 00:26:48.374 --> 00:26:53.844 SANFORD R. OXFELD: If it speaks comprehensively and. JUSTICE 301 00:26:53.844 --> 00:26:58.547 WAINER-APTER: But here the arbitrator seems to say the legislature nuclease 302 00:26:58.547 --> 00:27:02.733 leer clear is the legislature's authority to invalidate my jurisdiction. You 303 00:27:02.733 --> 00:27:07.109 disagreed the legislature obviously does have authority to invalidate the nine arbitrator's 304 00:27:07.109 --> 00:27:10.736 jurisdiction whether or not they exercised that authority is aided separate 305 00:27:10.736 --> 00:27:15.192 question right. SANFORD R. OXFELD: In a perfect world and you don't mean 306 00:27:15.192 --> 00:27:20.357 criticize the board attorney in this case be because be he's represented his client 307 00:27:20.357 --> 00:27:24.590 wonderfully throughout. But in a perfect world, the arbitrator's thought is 308 00:27:24.590 --> 00:27:29.551 exactly correct about his obligation to interpret the collective bargaining agreement 309 00:27:29.551 --> 00:27:36.302 and the reason I say that in a perfect world the Board of Education Board of 310 00:27:36.302 --> 00:27:40.430 Education would have filed in light of the 69 one nine five feet case and all 311 00:27:40.430 --> 00:27:47.745 it is 99 Ridgefield Park case what's called a scope of negotiations perk the body 312 00:27:47.745 --> 00:27:56.553 with expertise to determine what's negotiable and what's not. Upon a so you 313 00:27:56.553 --> 00:28:01.763 auto view this entire question as whether it's one within the scope of 314 00:28:01.763 --> 00:28:03.308 negotiations. SANFORD R. OXFELD: Absolutely correct and there's nothing 315 00:28:03.308 --> 00:28:07.028 in this statute that the way it's drafted that preempts it is negotiations and 316 00:28:07.028 --> 00:28:10.628 the arbitrator's interpretation is as well as the trial court's interpretationless 317 00:28:10.628 --> 00:28:17.552 ultimately correct. But at worst, it's reasonably debatable. JUSTICE 318 00:28:17.552 --> 00:28:22.116 HOFFMAN: But don't you think the introduction of the text does that by 319 00:28:22.116 --> 00:28:26.563 excluding subsection E when it he specifically says nothing shall preempt 320 00:28:26.563 --> 00:28:31.936 these other sections but doesn't apply that to subhe can see E. SANFORD R. 321 00:28:31.936 --> 00:28:37.079 OXFELD: Yes, I understand what you're saying that nothing in subsections BC or 322 00:28:37.079 --> 00:28:41.575 D.Ing those were entirely different issues. JUSTICE HOFFMAN: But it's being 323 00:28:41.575 --> 00:28:47.607 very specific about where preempt accident something or does not apply. It 324 00:28:47.607 --> 00:28:56.479 says it does apply to these other sections but it specifically leaves out 325 00:28:56.479 --> 00:29:01.052 subsection E. SANFORD R. OXFELD: Yes. There's nothing in subsection E 326 00:29:01.052 --> 00:29:05.334 that I read. JUSTICE WAINER-APTER: No but it's the opposite. So the actual 327 00:29:05.334 --> 00:29:12.689 sentence says nothing in subsoaks BCOD shall be construed to preomit but because 328 00:29:12.689 --> 00:29:17.729 E is not included that means that the legislature that believes E is construed to 329 00:29:17.729 --> 00:29:21.928 preempt. SANFORD R. OXFELD: And it preempts as I stated rights for 330 00:29:21.928 --> 00:29:26.539 teachers. It grants them more rights. Couple it does not preempt anything 331 00:29:26.539 --> 00:29:33.992 for those to have to report for work during COVID in person on a daily basis 332 00:29:33.992 --> 00:29:38.411 jeopardizing their health and safety. And that's why we negotiated a emergency pay 333 00:29:38.411 --> 00:29:44.991 provision and that's why the Word is and makes the arbitrator's decision and 334 00:29:44.991 --> 00:29:49.314 the trial court's decision at worth reasonably debatable. JUSTICE 335 00:29:49.314 --> 00:29:54.768 PATTERSON: So if you were here representing the NJEA and it's members who are 336 00:29:54.768 --> 00:29:57.735 teachers you wouldn't even making that argument. SANFORD R. OXFELD: Mr. 337 00:29:57.735 --> 00:30:04.017 Friedman will I won't speaks for him. I learned over years not to do that. 338 00:30:04.017 --> 00:30:06.658 JUSTICE PATTERSON: But you would be saying that this that teachers are 339 00:30:06.658 --> 00:30:12.453 the subject matter of the statute and you I understand your careful language 340 00:30:12.453 --> 00:30:16.722 but you're saying that's aid strong argument on behalf of the board so, as far as 341 00:30:16.722 --> 00:30:23.933 you're concerned for your clients, this entire issue turns on whether he view 342 00:30:23.933 --> 00:30:28.754 subsection E to be limited to teachers or not am I right about that? SANFORD R. 343 00:30:28.754 --> 00:30:32.174 OXFELD: Whether you view an interpretation contrary to that as being reasonably 344 00:30:32.174 --> 00:30:38.650 debatable. Again, with all due respect, your goal your charge from the decisions 345 00:30:38.650 --> 00:30:46.736 you have made in east Rutherford Carney PBA you didn't negotiate for the Court's 346 00:30:46.736 --> 00:30:50.151 interpretation a statute. We negotiated for an arbitrator's interpretation 347 00:30:50.151 --> 00:30:55.421 of a statute and in Ridgefield in East Rutherford Ford you specifically said 348 00:30:55.421 --> 00:30:59.692 as long as the arbitrator's interpretation of a statute is reasonably debatable 349 00:30:59.692 --> 00:31:10.200 it will be affirmed. JUSTICE PATTERSON: So an award is reasonably debatable 350 00:31:10.200 --> 00:31:14.790 if what? Give me the definition of reasonably debatable. If the Court 351 00:31:14.790 --> 00:31:21.909 conclusion that ninth the statute is being misconstrued why is that not tantamount 352 00:31:21.909 --> 00:31:26.726 to a conclusion that the law does not support the aware award and therefore 353 00:31:26.726 --> 00:31:30.346 the award should not be sustained. SANFORD R. OXFELD: If you find and 354 00:31:30.346 --> 00:31:33.427 I don't think there's any basis in the statute or in the trial court decision 355 00:31:33.427 --> 00:31:39.124 but if you find that the trial court's decision and the arbitrator's award 356 00:31:39.124 --> 00:31:44.074 is not quote plausible and that's the wort word that this insecurity used 357 00:31:44.074 --> 00:31:47.752 repeatedly equating that to reasonably debatable if you find that it's not plausible 358 00:31:47.752 --> 00:31:53.552 then I guess you have to vacate the award. CHIEF JUSTICE RABNER: Mr. Ox 359 00:31:53.552 --> 00:31:56.734 followed if the statute the open to two reasonable he interpretations and the 360 00:31:56.734 --> 00:32:01.977 arbitrator chooses one, that sent within the realm of reasonably debatable. 361 00:32:01.977 --> 00:32:04.956 SANFORD R. OXFELD: Thank you, Your Honor. I that's my ground. I agree 362 00:32:04.956 --> 00:32:08.902 with that entirely. I couldn't have said it better myself. JUSTICE 363 00:32:08.902 --> 00:32:14.814 WAINER-APTER: In this case the public health emergency. Sorry so the public 364 00:32:14.814 --> 00:32:20.964 health emergency was terminated on March 4th, 2022; correct? SANFORD R. OXFELD: 365 00:32:20.964 --> 00:32:24.579 I think it was July 4th. March 4th? JUSTICE WAINER-APTER: I have the public 366 00:32:24.579 --> 00:32:30.416 health emergency being terminated March 4th 2022. My question was just when 367 00:32:30.416 --> 00:32:35.779 were these benefits, the two and a half times when was it required to be paid 368 00:32:35.779 --> 00:32:39.940 until. SANFORD R. OXFELD: From the date the govern declared a state of 369 00:32:39.940 --> 00:32:43.442 emergency so the date the govern declared that there was no longer a state 370 00:32:43.442 --> 00:32:45.962 of emergency. Whatever that time period is. JUSTICE WAINER-APTER: Auto 371 00:32:45.962 --> 00:32:50.952 even though he is after July 4th, 2021 all of the schools were reopen and teachers 372 00:32:50.952 --> 00:32:55.211 were present in person as well. SANFORD R. OXFELD: The statute the still 373 00:32:55.211 --> 00:33:02.222 applied because the contract says that these people get the blue-collar workers 374 00:33:02.222 --> 00:33:06.822 get paid eye premium pay for working in dangerous circumstances working. 375 00:33:06.822 --> 00:33:10.207 JUSTICE WAINER-APTER: The teachers didn't get that premium pay you're saying. 376 00:33:10.207 --> 00:33:13.150 SANFORD R. OXFELD: He as long as there's a state of emergency declared bit govern 377 00:33:13.150 --> 00:33:19.339 governor that the teachers may have gone back into school may have obviated 378 00:33:19.339 --> 00:33:23.130 my because because they're no longer working he remotely but as long as there's 379 00:33:23.130 --> 00:33:28.781 a state of emergency still declared by the governor, the contract language 380 00:33:28.781 --> 00:33:31.965 governs which says that as long as there's a State of the emergency declared by 381 00:33:31.965 --> 00:33:34.738 the governor they get premium pay. JUSTICE WAINER-APTER: And is that the 382 00:33:34.738 --> 00:33:38.983 amount that was actually paid? I know there's some -- SANFORD R. OXFELD: 383 00:33:38.983 --> 00:33:42.934 I think we're halfway weaver been arguing about that forever. We've had a second 384 00:33:42.934 --> 00:33:48.567 arbitrator apply what the damages are. I think that it's about half paid. I 385 00:33:48.567 --> 00:33:54.693 think half of it remains unpaid and half was paid. That's just my guess. I don't 386 00:33:54.693 --> 00:34:00.746 I'll defer to whatever Mr. River assays about that. JUSTICE PATTERSON: 387 00:34:00.746 --> 00:34:05.907 So let me ask you you answered the chief's question by saying that if the thought 388 00:34:05.907 --> 00:34:09.937 is open to two reasonable interpretations and the arbitrator chooses one is 389 00:34:09.937 --> 00:34:17.618 that reasonably debatable, yes. That was your answer. The arbitrator did not adopt 390 00:34:17.618 --> 00:34:23.227 the interpretation that you are telling us that we should adopt. What we should 391 00:34:23.227 --> 00:34:29.711 look to what the arbitrator did; correct? to see whether there was a reasonable 392 00:34:29.711 --> 00:34:33.162 interpretation of the statute. SANFORD R. OXFELD: Respectfully I don't 393 00:34:33.162 --> 00:34:36.956 think that's the standard. What I think re: you look at what the Appellate Division 394 00:34:36.956 --> 00:34:40.359 did. JUSTICE PATTERSON: Of course we're reviewing the Appellate Division's 395 00:34:40.359 --> 00:34:43.953 but he won't be when you look at the reasonably debatable standard you're 396 00:34:43.953 --> 00:34:49.870 looking at was the arbitrator's interpretings statute reasonably debatable. 397 00:34:49.870 --> 00:34:54.375 Now there is an interpretings statute and the arbitration award but it's not the 398 00:34:54.375 --> 00:34:58.193 one that's based upon that examine and language that you're citing to us here. 399 00:34:58.193 --> 00:35:04.874 It is -- that says the schools were closed foreign policy purposesful CBA 400 00:35:04.874 --> 00:35:09.381 because they are closed for the purpose it's supposed to serve and that the 401 00:35:09.381 --> 00:35:13.879 subsection nine did not render the schools open because it was intended to protect 402 00:35:13.879 --> 00:35:19.900 bargain unit employees from losses not additional pay sustained during closures 403 00:35:19.900 --> 00:35:25.098 longer than three days and then the arbitrator went on to make the dementia 404 00:35:25.098 --> 00:35:36.606 justice warranty Wehner aptter -- invalidate my jurisdiction which springs frat 405 00:35:36.606 --> 00:35:40.885 party's agreements. That's what we need to determine whether it was reasonable; 406 00:35:40.885 --> 00:35:43.953 correct? SANFORD R. OXFELD: Yes, and I also remember I made the argument 407 00:35:43.953 --> 00:35:49.542 about preemption and that's what the arbitrator accepted. That there is no 408 00:35:49.542 --> 00:35:53.262 preemption. JUSTICE PATTERSON: I understand that but in terms of the 409 00:35:53.262 --> 00:35:57.093 interpretation of the statute that we should look at, it's not the trial courts. 410 00:35:57.093 --> 00:36:02.221 It's not the Appellate Division's. It's not any of the counsel's is that we won't 411 00:36:02.221 --> 00:36:05.987 we should look at. That's not what reasonably debatable is about. It's 412 00:36:05.987 --> 00:36:09.500 about the arbitrator's reasoning; correct? SANFORD R. OXFELD: If the arbitrator's 413 00:36:09.500 --> 00:36:15.959 award says reasonably debatable. Not his reasoning. JUSTICE PATTERSON: 414 00:36:15.959 --> 00:36:18.386 Well, his interpretation of the statute. SANFORD R. OXFELD: Very interesting 415 00:36:18.386 --> 00:36:23.945 argument or discussion. The there's one wonderful language I hope I can find 416 00:36:23.945 --> 00:36:30.415 it -- in the famous paint ball case. Are you familiar with the when the paint 417 00:36:30.415 --> 00:36:37.960 ball cases justice zazzaly was the chief justice. It's one of the the fun 418 00:36:37.960 --> 00:36:48.650 cases to discuss. An attendant on the turnpike got mad added somebody who went into 419 00:36:48.650 --> 00:36:53.625 the booth got into his truck and followed that person and got a paint ball 420 00:36:53.625 --> 00:36:57.465 gun and starting shooting at home approximate pelts the and police stopped him 421 00:36:57.465 --> 00:37:02.397 and he was convict of some sort of the criticism shooting some sort of crime. 422 00:37:02.397 --> 00:37:06.882 I don't know what it was and the turnpike authority fired him. And the case went 423 00:37:06.882 --> 00:37:11.813 to arbitration. And the arbitrator said that he's been out of work or ten months 424 00:37:11.813 --> 00:37:15.416 and I think that's sufficient penalty I'm putting him back and the trial court 425 00:37:15.416 --> 00:37:19.163 said, no, this is violative of a statute and therefore it's contrary to public 426 00:37:19.163 --> 00:37:22.756 policy. He was convict of whatever that was. The Appellate Division said, 427 00:37:22.756 --> 00:37:29.433 no, he violated a statute. He should be terminated. It's against public policy. 428 00:37:29.433 --> 00:37:37.662 The chief justice said, New Jersey turnpike authority versus local one nine 429 00:37:37.662 --> 00:37:46.599 six. One nine zero N.J. two eighty three as pages 300 to pages 300 one. We 430 00:37:46.599 --> 00:37:54.622 hold that the public policy exception and Weiss -- the Weiss case heightened 431 00:37:54.622 --> 00:38:00.601 judicial restaurant of a warrants are triggered a lay arbitration is award the 432 00:38:00.601 --> 00:38:06.247 award violates say clear mandate of public policy. The award so the chief justice 433 00:38:06.247 --> 00:38:10.728 I think unanimous Court in that case, said there's nothing in violation of 434 00:38:10.728 --> 00:38:14.101 public policy putting an employee back to work. That's what the arbitrator 435 00:38:14.101 --> 00:38:18.798 found. Putting him back to work accident not a violation of public policy. Applying 436 00:38:18.798 --> 00:38:22.906 that to the case there's no violation of public policy telling custodians who it 437 00:38:22.906 --> 00:38:28.816 had work during COVID when their collective bargaining agreement says you get 438 00:38:28.816 --> 00:38:32.489 paid emergency payment during the COVID that they're annihilate we're talking 439 00:38:32.489 --> 00:38:36.654 about the reasonably debatable standard what it does apply to it has fog nothing 440 00:38:36.654 --> 00:38:41.126 to dod reasoning of the arbitrator. SANFORD R. OXFELD: Not in New Jersey 441 00:38:41.126 --> 00:38:44.958 turnpike case. It's the award of the arbitrator. JUSTICE PATTERSON: That 442 00:38:44.958 --> 00:38:48.576 was the statutory public policy exception was it not. SANFORD R. OXFELD: 443 00:38:48.576 --> 00:38:53.834 The claim in that case was because the shooter of the paint balls was is 444 00:38:53.834 --> 00:38:58.834 convicted of a crime. The statute the criminal stature was public policy. And that 445 00:38:58.834 --> 00:39:03.884 because he was convicted the public policy was violated by thear arbitrator 446 00:39:03.884 --> 00:39:08.715 the putting him back to work and that what was soundly rejected I think it 447 00:39:08.715 --> 00:39:15.048 was by unanimous Court by chief justice ZAZZALI. CHIEF JUSTICE RABNER: 448 00:39:15.048 --> 00:39:19.740 Other questions anyone? Counsel is there anything else you'd like to add. 449 00:39:19.740 --> 00:39:24.811 SANFORD R. OXFELD: No, thank you. Thank you very much. CHIEF JUSTICE RABNER: 450 00:39:24.811 --> 00:39:27.872 Mr. Freed why don't we start your argument we'll probably bake break at 12:30 451 00:39:27.872 --> 00:39:38.724 but let's begin. RICHARD A. FRIEDMAN: Thank you a appreciate that. So 452 00:39:38.724 --> 00:39:42.249 may it please the Court the issue seems to be settling down to whether the 453 00:39:42.249 --> 00:39:46.834 award was reasonably debatable which was always the issue and that's how you interpret 454 00:39:46.834 --> 00:39:52.959 the statute whether the statute included the remedy to the arbitrator afforded. 455 00:39:52.959 --> 00:39:59.007 And I'm pearl comfortable with justice Paterson's statement of what did the 456 00:39:59.007 --> 00:40:05.047 arbitrator say. What the arbitrator said purpose would appear to be to protect 457 00:40:05.047 --> 00:40:12.059 bargain unit employees from losses not additional pay. That being said, there is 458 00:40:12.059 --> 00:40:15.899 nothing in here in the statute in the language or the purpose which nothing 459 00:40:15.899 --> 00:40:20.312 significant that says that they couldn't get paid more and actually the law 460 00:40:20.312 --> 00:40:24.049 is youion says actually the opposite as I'll tell you in a moment president the 461 00:40:24.049 --> 00:40:29.413 standard is a reasonable debatable under the east Rutherford decision questions 462 00:40:29.413 --> 00:40:33.805 of law, in other words, what does the statute mean and questions of public policy 463 00:40:33.805 --> 00:40:39.422 are the for the arbitrator and the term reasonable debatable was defined in the 464 00:40:39.422 --> 00:40:46.898 East Rutherford for case ZAZZALI meaning is it in direct conflict with the 465 00:40:46.898 --> 00:40:49.065 statute. JUSTICE WAINER-APTER: You said that there's nothing in the statute 466 00:40:49.065 --> 00:40:55.177 to suggest that they couldn't be paid more (Reading from text.) is that auto 467 00:40:55.177 --> 00:41:04.897 negotiated for additional work performed? Doesn't that go ahead. RICHARD A. 468 00:41:04.897 --> 00:41:07.597 FRIEDMAN: That's a little both some but it's not aided prohibition. What you 469 00:41:07.597 --> 00:41:13.942 need says a you need specific language. You need a prohibition. And I'm going to 470 00:41:13.942 --> 00:41:18.418 go back to the state versus state supervisory case which is almost fifty 471 00:41:18.418 --> 00:41:23.882 years old and it's been the law to the last fifty years. And it makes it very 472 00:41:23.882 --> 00:41:29.584 clear not only does preemption apply whether you can talk about this but it applies 473 00:41:29.584 --> 00:41:33.413 whether whether there is a statute whether that statute prohibits additional 474 00:41:33.413 --> 00:41:39.356 compensation or additional. And I'm going to read from the case. (Reading from 475 00:41:39.356 --> 00:41:43.882 text.) JUSTICE WAINER-APTER: With you give us the cite. RICHARD A. 476 00:41:43.882 --> 00:41:47.888 FRIEDMAN: Sure it's seventy eight N.J. at page fifty four but page eighty one 477 00:41:47.888 --> 00:41:54.227 and eighty two what I'm reading from. (Reading from text.) mandates a minimum level 478 00:41:54.227 --> 00:41:59.931 of rights or benefits for public employees, but does not bar the public employer 479 00:41:59.931 --> 00:42:03.995 from choosing to afford home greater protection proposals by the employees 480 00:42:03.995 --> 00:42:09.764 to obtain thatiator protection in a negotiated agreement or mandatory negotiable. 481 00:42:09.764 --> 00:42:13.804 A contractual provisions including the employees Ott recital or benefits in 482 00:42:13.804 --> 00:42:18.445 excess of that required by statute or regulation is valid and enforceable. 483 00:42:18.445 --> 00:42:23.491 And what we have here is a statute which required a certain minimum level of 484 00:42:23.491 --> 00:42:28.548 benefits but did not in any place prohibit additional benefits. JUSTICE 485 00:42:28.548 --> 00:42:30.944 WAINER-APTER: Germ cell that true notice in terms of the last phrase doesn't the 486 00:42:30.944 --> 00:42:39.038 last phrase imply that additional compensation can be paid for additional 487 00:42:39.038 --> 00:42:44.873 work performed but not for. RICHARD A. FRIEDMAN: Yes, but it doesn't 488 00:42:44.873 --> 00:42:47.929 prohibit additional compensation acquit parties agree without forcing the board or 489 00:42:47.929 --> 00:42:51.636 anybody else to agree to additional compensation in the circumstances 490 00:42:51.636 --> 00:42:57.820 exactly especially working in hazards conditions which is sort of tenant how 491 00:42:57.820 --> 00:42:58.810 the Newtown additional work. JUSTICE WAINER-APTER: Why would they then use 492 00:42:58.810 --> 00:43:02.968 the word accept. RICHARD A. FRIEDMAN: I to look at that language if you 493 00:43:02.968 --> 00:43:10.293 bear with me. It's not the most artful phrase but what I would submit is they 494 00:43:10.293 --> 00:43:14.150 were aware they would have to make very clear that you can't do this and this 495 00:43:14.150 --> 00:43:17.893 language is not clear enough and in fact the right to negotiate would have exist 496 00:43:17.893 --> 00:43:20.742 in the perk act regardless of this. JUSTICE PATTERSON: What is the meaning 497 00:43:20.742 --> 00:43:27.711 of the phrase and I'm skipping over the particle part that talks about the 498 00:43:27.711 --> 00:43:32.503 public health emergency and I think there's no dispute that that language employees. 499 00:43:32.503 --> 00:43:35.922 Public school employees coveted a a recollective negotiations agreement 500 00:43:35.922 --> 00:43:41.321 shall be entitled to compensation, benefits andy monthly uments as provided in the 501 00:43:41.321 --> 00:43:46.180 collective negotiations agreement as if the school fatalities remain open-for-any 502 00:43:46.180 --> 00:43:51.655 purpose. I know there's more bullpen but what does that mean. RICHARD A. 503 00:43:51.655 --> 00:43:54.243 FRIEDMAN: That means they're entitled to this but it doesn't mean they can't 504 00:43:54.243 --> 00:44:00.157 negotiate for that. And in fact the agreement provided for emergency pay. Provided 505 00:44:00.157 --> 00:44:05.197 for pay in circumstances of emergencies before this ever you occurred. 506 00:44:05.197 --> 00:44:07.394 JUSTICE WAINER-APTER: Of course the agreement didn't say anything about COVID 507 00:44:07.394 --> 00:44:12.164 because it was signed long before COVID right. RICHARD A. FRIEDMAN: Correct 508 00:44:12.164 --> 00:44:15.424 so you could say that the agreement provided follow this and you're he enforcing 509 00:44:15.424 --> 00:44:20.899 the agreement when they're paid for going in in the emergency. So actually 510 00:44:20.899 --> 00:44:25.297 that takes you back to the agreement and the agreement on provided for this. Nobody 511 00:44:25.297 --> 00:44:28.821 negotiated anything extra what this occurred. They had already negotiated 512 00:44:28.821 --> 00:44:30.778 it this. It was in the agreement. CHIEF JUSTICE RABNER: Does the language 513 00:44:30.778 --> 00:44:36.853 that we just went over cover accelerations visual teaching being done and a 514 00:44:36.853 --> 00:44:42.112 school is physically closed. RICHARD A. FRIEDMAN: If it only covers 515 00:44:42.112 --> 00:44:45.393 virtual agreements, I mean, virtual teaching that that was one of my thoughts that 516 00:44:45.393 --> 00:44:50.601 it doesn't even apply to people coming to school in the agreement doesn't fry 517 00:44:50.601 --> 00:44:54.962 empty at all. Doesn't even I'm sorry the statute doesn't preempt. The assault 518 00:44:54.962 --> 00:44:59.441 doesn't even apply and there's no basis to Celtic aside the arbitrator's decision 519 00:44:59.441 --> 00:45:06.238 on that basis. But if you go back to what justice Paterson said if you just 520 00:45:06.238 --> 00:45:11.818 strictly look at why did the arbitrator say or do this, well, they said this 521 00:45:11.818 --> 00:45:16.562 is a minimum but you can negotiate for more. And that certainly was reasonably debatable 522 00:45:16.562 --> 00:45:21.643 and doesn't directly conflict with the statute. JUSTICE PATTERSON: What 523 00:45:21.643 --> 00:45:24.169 language I'm sorry what language are you specifically referring to in the 524 00:45:24.169 --> 00:45:32.058 arbitrator's -- I did not see the word minimum. Or. RICHARD A. FRIEDMAN: 525 00:45:32.058 --> 00:45:41.810 The arbitrator said was its purpose would appear to be to protect bargain unit 526 00:45:41.810 --> 00:45:47.874 employees from if losses sustained Ed closure he more than three days which annals 527 00:45:47.874 --> 00:45:51.695 means they can negotiate for more pay.(Overlapping speakers.) CHIEF 528 00:45:51.695 --> 00:45:55.621 JUSTICE RABNER: You're reading the language at page five the arbitrator's opinion. 529 00:45:55.621 --> 00:45:58.922 RICHARD A. FRIEDMAN: Yes, and I wanted to say before I forgot that I don't 530 00:45:58.922 --> 00:46:03.213 think it matters whether this statute applies to teachers administrators only 531 00:46:03.213 --> 00:46:08.799 or custodians. That I think based on the language the statute did not prevent 532 00:46:08.799 --> 00:46:12.169 negotiations of this benefit to the Court doesn't really have to go to get into 533 00:46:12.169 --> 00:46:16.442 which specific he employees or chord or not covered by the statute. JUSTICE 534 00:46:16.442 --> 00:46:20.604 PATTERSON: How do you interpret the phrase that the begins and. The one that has 535 00:46:20.604 --> 00:46:26.069 been discussed today? What's the meaning of that? RICHARD A. FRIEDMAN: 536 00:46:26.069 --> 00:46:38.186 I have to take another look at that. I think the purpose of that was to make 537 00:46:38.186 --> 00:46:43.681 clear that if people were teaching remotely or not teaching at all they would 538 00:46:43.681 --> 00:46:49.089 be protected by this statute. That's what I think and does approximate it makes 539 00:46:49.089 --> 00:46:53.214 they're that those people are protected and I think that suggests that the 540 00:46:53.214 --> 00:46:56.839 statute doesn't even address the status of people who couldn't teach remotely 541 00:46:56.839 --> 00:47:01.652 and people were actually coming into school. I don't think the statute even 542 00:47:01.652 --> 00:47:04.629 addresses that. JUSTICE PATTERSON: You're referring to he just the 543 00:47:04.629 --> 00:47:10.972 subsection when you. RICHARD A. FRIEDMAN: Just the subsection. JUSTICE 544 00:47:10.972 --> 00:47:15.940 PATTERSON: What it does subsection G do? RICHARD A. FRIEDMAN: That's where 545 00:47:15.940 --> 00:47:19.504 you just read talked from the and. JUSTICE PATTERSON: No referring to 546 00:47:19.504 --> 00:47:26.074 to the entire subsection. RICHARD A. FRIEDMAN: I think the intent was 547 00:47:26.074 --> 00:47:32.244 to make clear that teachers who were anybody really who were not coming into school 548 00:47:32.244 --> 00:47:38.602 because school was closed in large teaching remotely would be paid the same 549 00:47:38.602 --> 00:47:43.332 pay that they ordinarily would get. JUSTICE HOFFMAN: So given that limited 550 00:47:43.332 --> 00:47:48.604 reading, what does the phrase for any purpose mean or does that have any use 551 00:47:48.604 --> 00:47:53.853 or utility or relevance in the statute? RICHARD A. FRIEDMAN: Was that 552 00:47:53.853 --> 00:47:59.065 the first ORs second sentence of that part? The for any purpose. JUSTICE 553 00:47:59.065 --> 00:48:03.138 HOFFMAN: That's where justice Paterson left. School facilities remain open 554 00:48:03.138 --> 00:48:07.948 for any purpose and for my time lost. Now you're reading the for any time lost to 555 00:48:07.948 --> 00:48:11.919 mean that this only applies to teachers. RICHARD A. FRIEDMAN: Why kiss 556 00:48:11.919 --> 00:48:15.739 ait only applies to teachers. I think it applies to anybody in that situation. 557 00:48:15.739 --> 00:48:20.668 But I guess there's two parts to that. One open for any purpose they'll be 558 00:48:20.668 --> 00:48:26.098 paid as the school was open period without wondering why or why not or what 559 00:48:26.098 --> 00:48:29.916 activities may I been going on or not going on. To say we will treat you as if school 560 00:48:29.916 --> 00:48:32.883 was open period. JUSTICE PATTERSON: What does that mean because it 561 00:48:32.883 --> 00:48:39.715 seems that what we're hearing is that it doesn't mean anything other than we're 562 00:48:39.715 --> 00:48:44.767 declaring the school open but it says public school employees broad language 563 00:48:44.767 --> 00:48:48.259 covered by a collective negotiations agreement shall be entitled to 564 00:48:48.259 --> 00:48:53.356 compensation benefits andy monthly uments as provided in the collective negotiations 565 00:48:53.356 --> 00:48:57.522 agreement as if the school facilities remained open nor if I purpose and, yes, 566 00:48:57.522 --> 00:49:05.635 there's more language I'm not in any way neglecting. JUSTICE WAINER-APTER: 567 00:49:05.635 --> 00:49:09.009 And doesn't that contradict the two point five times because the two point five 568 00:49:09.009 --> 00:49:14.359 atimes that the custodians get is only if the auto schools are not open so if 569 00:49:14.359 --> 00:49:17.297 you're Greg that here the purpose.(Overlapping speakers.) A. RICHARD A. 570 00:49:17.297 --> 00:49:20.188 FRIEDMAN: I think had the it's clear from what the legislature was doing it's 571 00:49:20.188 --> 00:49:25.148 clear that the they considered the schools to be closed. JUSTICE PATTERSON: 572 00:49:25.148 --> 00:49:27.105 But they say they shall be considered open. RICHARD A. FRIEDMAN: As if 573 00:49:27.105 --> 00:49:33.239 school is open meaning you were to be paid as if schools were not closed but 574 00:49:33.239 --> 00:49:37.073 schools were closed but that doesn't prevent negotiating for additional and 575 00:49:37.073 --> 00:49:43.309 he mentioned and there's no language here when you take into account the preemption 576 00:49:43.309 --> 00:49:48.013 test and all of the aces you discussed cases that were discussed doctor you 577 00:49:48.013 --> 00:49:52.641 agree during the Mr. Ox if he would's argument that in order to guess that 578 00:49:52.641 --> 00:49:58.685 you can't negotiate for additional benefits or additional pay there has to be a pro 579 00:49:58.685 --> 00:50:05.810 prohibition. And I cawing your attention to what the Court said inly robinsville 580 00:50:05.810 --> 00:50:12.699 case which is had two two seven N.J. one nine two-page one nine nine and the 581 00:50:12.699 --> 00:50:21.195 Court talks about examples a mandatorily negotiable terms it calls pay I presume 582 00:50:21.195 --> 00:50:25.227 examples approximate talks about the preempt unanimous of pay, quintessential term 583 00:50:25.227 --> 00:50:29.829 and condition of employment. Is so if there's anything in terms of of a public 584 00:50:29.829 --> 00:50:37.299 policy that that would be negotiable this is it. Again there's. JUSTICE 585 00:50:37.299 --> 00:50:39.622 PATTERSON: Let me see if I understand what you're saying and that is that you 586 00:50:39.622 --> 00:50:42.631 have a. CHIEF JUSTICE RABNER: Wrap it up after this question. JUSTICE 587 00:50:42.631 --> 00:50:48.959 PATTERSON: There is a two and a half times provision for when the schools are 588 00:50:48.959 --> 00:50:52.683 closed in the CBA; correct? RICHARD A. FRIEDMAN: Yes. JUSTICE PATTERSON: 589 00:50:52.683 --> 00:50:59.960 And when the schools are open, it's the regular pay. It obviously varies. 590 00:50:59.960 --> 00:51:01.652 RICHARD A. FRIEDMAN: ; correct?; correct. JUSTICE PATTERSON: Okay so they 591 00:51:01.652 --> 00:51:05.591 schools are open the pay the regular. The schools are closes two and a half 592 00:51:05.591 --> 00:51:13.802 times. The statute that says and again I want tong very precise about this 593 00:51:13.802 --> 00:51:21.120 public school employees covered by CNA shall be entitled to exception et cetera 594 00:51:21.120 --> 00:51:25.713 as provided in the CNA as if the school facilities remained open for any purpose 595 00:51:25.713 --> 00:51:30.526 right so now the legislature is saying you're paid as if the schools open. 596 00:51:30.526 --> 00:51:37.473 We go back to the CNA which is not negated by this and we look to the pay while 597 00:51:37.473 --> 00:51:42.819 the schools are open. And that's simply. RICHARD A. FRIEDMAN: The CNA said 598 00:51:42.819 --> 00:51:47.529 if the schools are closed because of an emergency and that was one of the issues 599 00:51:47.529 --> 00:51:51.373 that wasar arbitrated and the arbitrator found that schools were closed and 600 00:51:51.373 --> 00:51:57.893 that was certainly reasonably debatable and it wasn't questioned by any Court 601 00:51:57.893 --> 00:52:01.360 which has wasn't questioned by trial court, trial court agreed. JUSTICE 602 00:52:01.360 --> 00:52:07.923 PATTERSON: I get all that but my point is that what you're saying is additional 603 00:52:07.923 --> 00:52:13.501 negotiations is deeming the schools closed despite the fact that at legislature 604 00:52:13.501 --> 00:52:19.662 said that people that the employees should be paid as if they are open do you 605 00:52:19.662 --> 00:52:22.880 see what I'm saying. RICHARD A. FRIEDMAN: The legislature didn't say 606 00:52:22.880 --> 00:52:28.365 that schools were open they said pay them as if they were open and suggests they 607 00:52:28.365 --> 00:52:30.876 were closed or you wouldn't have to say that. JUSTICE PATTERSON: So, as far as 608 00:52:30.876 --> 00:52:35.788 you're concerned the all the the legislature was saying pay them as if they 609 00:52:35.788 --> 00:52:40.181 were open but you can go right back to saying we'll play them as if they were 610 00:52:40.181 --> 00:52:42.917 closed. RICHARD A. FRIEDMAN: All the legislature was saying is everybody 611 00:52:42.917 --> 00:52:47.231 would get what they normally would get during normal times. If somebody wanted 612 00:52:47.231 --> 00:52:52.758 to negotiate more they didn't proton it. And if they didn't prohibit it under 613 00:52:52.758 --> 00:52:56.926 state versus state supervisors it was negotiable and a minimum level of protection 614 00:52:56.926 --> 00:53:02.105 which you could negotiate more for which made a lot of sense in this situation 615 00:53:02.105 --> 00:53:07.311 because these custodians were working in hazards out conditions. CHIEF 616 00:53:07.311 --> 00:53:15.977 JUSTICE RABNER: I'm sorry to chop your argument but thirty maintain recess. 617 00:53:15.977 --> 00:53:18.977 (recess for thirty minutes .) The next speaker will be Mr. Friedman.