Jersey Shore Area School District v. Jersey Shore Education Ass'n

LARSEN, Justice,

dissenting.

When the legislature granted school teachers and other public employees the right to strike in 1970, it was fully cognizant of the provisions in the Public School Code mandating that school districts provide 180 days of pupil instruction and fully aware that such strikes could infringe upon the 180 day mandate. Nevertheless, the legislature *409 granted that right to strike in Act 195 of July 23, 1970, as amended, 43 Pa.Stat.Ann. §§ 1101.101-2301 (the Public Employees Relations Act, or PERA), and restricted the possibility of intervention by the courts in providing that a strike occuring after the collective bargaining procedures of Act 195 have been utilized and exhausted “shall not be prohibited unless or until such a strike creates a clear and present danger or threat to the health, safety or welfare of the public.” 43 Pa.Stat. Ann. § 1101.1003. This legislative restriction on a court’s authority to intervene by injunction against a strike is strong and explicit — a strike “shall not be prohibited” in the absence of a “clear and present danger or threat” to the public’s health, safety or welfare. Surely, clear and present danger or threat to the health, safety or welfare of the community requires much more than the myriad inevitable and expected inconveniences and disruptions that are the normal consequences of any school strike, even one which impinges on the mandatory 180 days of pupil instruction of which the legislature was well aware.

In support, I adopt the opinion and analysis of the Honorable Emil E. Narick, then sitting on the Court of Common Pleas of Allegheny County, in Bethel Park School District v. Bethel Park Federation of Teachers, 135 Pgh.L.J. 127 (C.P.Alleg.Co.1986). In this case, Judge Narick refused to issue an injunction against a strike by school teachers despite the school board’s recitation of the standard litany of ills caused by the strike, namely that state subsidies were threatened, that seniors were at a competitive disadvantage with college placement and testing, that students generally were competitively disadvantaged, that special programs were threatened, etc. Recognizing that these concerns, although serious and important, were not what was contemplated when the legislature gave courts the authority to issue an injunction only when there was a “clear and present danger or threat to the health, safety or welfare of the public,” Judge Narick stated as follows:

*410 [I]t seems to us that the danger or threat concerned must not be one which is normally incident to a strike by public employees. By enacting Act 195 which authorizes such strikes, the legislature may be understood to have indicated its willingness to accept certain inconveniences, for such are inevitable, but it obviously intended to draw the line at those which pose a danger to the public health, safety or welfare of the public.

The disruption of routine administrative procedures, the cancellation of extracurricular activities and sports and other such difficulties are most certainly inconvenient for the public, and especially for students and their parents. But these problems are inherent in the very nature of any strike by school teachers, or any other group of public employees. If we were to say that such inconveniences, which necessarily accompany any strike by school teachers from its very inception, are proper grounds for enjoining such a strike, we would in fact be nullifying the right to strike granted to the school teachers by the legislature in Act 195, as is granted to all other public employees.

The fact that students and teachers might have to remain in school later in June than originally planned may be unfortunate, of course, but again is merely an inconvenience inherent in the right of school teachers to strike, a right now guaranteed them by law.

* * * * # *

We are aware that the School District has presented evidence that it would suffer loss of substantial sums of money for the payment of nonstriking employees, maintenance costs, high school students being disadvantaged seeking admission to colleges, alleged testing program problems and other matters referred to in the Jersey Shore [.Jersey Shore Education Assoc. v. Jersey Shore Area School Dist., 99 Pa.Cmwlth. 163 , 512 A.2d 805 (1986)] case by the trial court. However, as the Commonwealth Court decisions tell us, those types of harms do not necessarily constitute a clear and present danger *411 or threat to the public health or welfare requiring that a teachers’ strike be enjoined because each of these harms is an inconvenience which the legislature could reasonably have expected would ordinarily occur as a result of a strike by school teachers.

Further, notwithstanding the Public School Code requiring 180 days instructions, our courts have held that strike activities can justify providing less than 180 instruction days when it renders scheduling impossible____

******

In summary, I do not believe that where a teachers’ strike prevents a school district from having 180 days of instruction in the school year with a consequence of possible loss of state subsidy, there is thereby a clear and present danger or threat to the health, safety or welfare of the public.

If the contrary is true, then it would follow that any strike which infringes upon the 180-day requirement is infected with almost presumptive invalidity, and, two, the school board is assured that its position in negotiations at the bargaining table, whether fair or unfair, will prevail if only it can hold out long enough to encroach on the 180-day requirement. Nor does adding thereto the inherent inconveniences, disruptions and problems caused students, their parents and the public which inevitably flow from any strike by school teachers justify the enjoining of such a strike.

We rejected any suggestion that would nullify the right to strike granted the school teacheis as public employees by the legislature, as it does to all other public employees. In my view, the evil, which is not the strike itself, which is permitted, nor the natural disruptions flowing therefrom, but it must be extremely serious and the degree of imminent danger extremely high before the court can utilize the extraordinary remedy of injunctive relief to terminate a strike specifically authorized by statute.

135 Pgh.L.J. at 132-34 (emphasis added).

In the instant case, as in the Bethel Park decision, there is no evidence on the record of any clear and present *412 danger or threat to the health, safety or welfare of the public other than evidence of the normal disruptions and inconveniences associated with any strike of public school teachers. These types of harms usually associated with a public school teachers’ strike were not unknown or unimaginable when the legislature prohibited courts from interfering with such strikes unless or until a clear and present danger or threat to the public health, safety or welfare were presented, and the legislature could not have equated the former harm with the latter clear and present danger or thréat. The record, therefore, falls far short of justifying the “extraordinary remedy” of injunctive relief prohibiting the continuation of the strike, and the Chancellor should be reversed.

Unfortunately, the majority opinion seriously undermines the right to strike granted school teachers and other public employees. In fact, the majority transforms the ordinary into the extraordinary and renders the right to strike almost illusory for, as Judge Narick observes, school boards will be able to negotiate with recalcitrance secure in the knowledge that, as soon as the magic 180 day period is actually or nearly threatened, the board will be able to trot out the standard laundry list of inconveniences and disruptions normally associated with any strike by school teachers to obtain an injunction. The long overdue and well justified advances in some public school teachers’ careers conditions and salaries, which have come about only recently through Act 195 and the right to strike, may prove fleeting in light of today’s majority opinion. I urge the legislature to take prompt action to preserve the hard fought gains of this Commonwealth’s front line soldiers in the war against ignorance and anarchy.

PAPADAKOS, J., joins in this dissenting opinion.