SCHOOL COMMITTEE OF THE TOWN OF WESTERLY vs. WESTERLY TEACHERS ASSOCIATION.
Rhode Island Supreme Court
JANUARY 31, 1973.
299 A.2d 441
PRESENT: Roberts, C.J., Paolino, Powers, Joslin and Kelleher, JJ.
The town of Westerly was one such community. On September 1, 1971, the school committee and the Westerly Teachers Association had entered into a collective bargaining agreement concerning the “hours, salary, working conditions and other terms and conditions of professional employment of the teachers.” The contract was for a two-year period and contained a wage reopening clause for the 1972-73 school year. Subsequent wage negotiations proved fruitless. Arbitrators were appointed pursuant to the rele-
September 5, 1972 was teachers’ orientation day. A substantial number of the teachers failed to attend the scheduled meetings. The next day was the first day of school. The students appeared but, once again, the teachers were conspicuous by their absence from the classrooms. At 10 a.m., the committee closed the schools and shortly thereafter a complaint was submitted to a justice of the Superior Court. He then issued an ex parte temporary restraining order which enjoined the strike and ordered the teachers to return to work. On September 7, 1972, the association sought from us certiorari and a stay of the Superior Court‘s order. We issued the writ but denied the request for a stay. Thereafter, the strike ended and school began in Westerly.
Our issuance of the writ has been motivated by the fact that within recent times, each and every time the public schools of our state have resumed operations after summer vacation, teachers in many of the public school systems have refused to return to their classrooms claiming that they have a right to strike. We have agreed to review the issuance of the Superior Court‘s restraining order because it is intertwined with an issue of substantial public interest which is capable of repetition yet evading review. Moore v. Ogilvie, 394 U. S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Chernov Enterprises, Inc. v. Scuncio, 107 R. I. 439, 268 A.2d 424 (1970). In doing so, we are reassessing a position first taken in City of Pawtucket v. Pawtucket Teachers’ Alliance, 87 R. I. 364, 141 A.2d 624 (1958), and reaffirmed just about six years ago in Pawtucket School Committee v. Pawtucket Teachers’ Alliance, 101 R. I. 243, 221 A.2d 806 (1966). The holding first expressed in 1958 states that striking by public schoolteachers is illegal and subject to being enjoined. We see no reason why this principle should be modified.
There is no constitutionally protected fundamental right to strike. In 1926, Mr. Justice Brandeis wrote that neither the common law nor the
The diffusion of knowledge through the use of the public school system so that the advantages and opportunities afforded by education will be made available to the people is the constitutional responsibility of the state.1 Article
The state has a compelling interest that one of its most precious assets—its youth—have the opportunity to drink at the font of knowledge so that they may be nurtured and develop into the responsible citizens of tomorrow. No one has the right to turn off the fountain‘s spigot and keep it in a closed position. Likewise, the equal protection afforded by the fourteenth amendment does not guarantee perfect equality. There is a difference between a private employee and a public employee, such as a teacher who plays such an important part in enabling the state to discharge its constitutional responsibility. The need of preventing governmental paralysis justifies the “no strike” distinction we have drawn between the public employee and his counterpart who works for the private sector within our labor force.
A thorough compilation of cases covering all facets of a public employee‘s right to strike can be found in Annot., 37 A.L.R.3d 1147 (1971). A study of this annotation makes it perfectly clear that a judicial or legislative interdiction
The teachers argue, however, that in the time that has elapsed since the first Pawtucket schoolteachers’ case, the United States Supreme Court has treated public employees in such a way as to afford them rights previously denied them. They point to the holdings in Keyishian v. Board of Regents, 385 U. S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), and Garrity v. New Jersey, 385 U. S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).
In Keyishian, the Supreme Court described the classroom as the “marketplace of ideas” and invalidated the New York teachers’ oath and loyalty law on the basis that their vagueness and ambiguity posed an unconstitutional threat to the teachers’ right of free speech. The Garrity case dealt with a criminal conviction based upon evidence given by some defendants after they had been told that if they exercised their right against self-incrimination during an investigation of their conduct as policemen, they might be discharged. These cases are of no assistance to the teachers because here there is no effort being made to inhibit the give-and-take that goes on in the classroom between teacher and pupil nor are we concerned with any violation of the fifth amendment right.2
Having failed in their efforts to persuade us that the right to strike has been elevated to constitutional status, the teachers point to various actions taken by the General Assembly and take the position that they have an implied
The School Teachers’ Arbitration Act became law during the January, 1966 session of the General Assembly. We need only set forth the following excerpt:
“28-9.3-1. Declaration of policy—Purpose. — * * *
“It is hereby declared to be the public policy of this state to accord to certified public school teachers the right to organize, to be represented, to negotiate professionally and to bargain on a collective basis with school committees covering hours, salary, working conditions and other terms and conditions of professional employment, provided, however, that nothing contained in this chapter shall be construed to accord to certified public school teachers the right to strike.”
While this section fails to contain an express prohibition against a strike, it certainly does not give the public schoolteachers the right to strike. On such a vital issue, we will not attribute to the General Assembly an intent to depart from the common law unless such an intent is expressly and unmistakably declared. Johnston Businessmen‘s Ass‘n v. aaRussillo, 108 R. I. 257, 274 A.2d 433 (1971). If the Legislature wishes to give the public school pedagogues the right to strike, it must say so in clear and unmistakable language. Accordingly, we find no legislation implicitly granting such a right to the teachers of this state.
The sentiments we have just expressed relative to the implicit right to strike apply equally as well to the teachers’ contention that their dispute with the school committee was subject to the anti-injunction provisions of
The teachers’ inability to enjoy the benefits of the legislation which severely limits the Superior Court‘s jurisdiction to enjoin a labor dispute does not mean that every time there is a concerted work stoppage by public employees, it shall be subject to an automatic restraining order. Rule 65(b) of Super. R. Civ. P. specifically states that no temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts by affidavit or verified complaint that irreparable harm will result before notice can be served and a hearing held.
We must concede that the mere failure of a public school system to begin its school year on the appointed day cannot be classified as a catastrophic event. We are also aware that there has been no public furor when schools are closed because of inclement weather, or on the day a presidential candidate comes to town, or when the basketball team wins the championship. The law requires that the schools be in session for 180 days a year. General Laws 1956 (1969 Reenactment) §16-2-2. There is a flexibility in the calendaring of the school year that not only permits the makeup of days which might have been missed for one reason or another but may also negate the necessity of the immediate
It is true that the issuance of an interlocutory injunction lies within the sound discretion of the trial justice. The temporary restraining order was entered in the case at bar upon the verified complaint of the chairman of the school committee in which it is averred that schools had not opened as scheduled and that irreparable harm would be sustained by the students, parents and citizens of Westerly. We think that in the light of what we have just said such a declaration will no longer justify ex parte relief. In making such a statement, we wish to make it clear that we are not faulting the trial justice. We are well cognizant that the temporary restraining order now before us was entered subsequent to the entry of another temporary restraining order by another justice of the Superior Court in a case involving a strike by the teachers in the Chariho School District. We stayed that order whereupon the District‘s school committee withdrew its complaint.4 Counsel for petitioners and respondents concede that the trial justice in the pending cause made it clear that he had signed the restraining order solely in the interest of having a uniformity of practice in the issuance of restraining orders, both of which were requested within hours of each other.
Ex parte relief in instances such as teachers-school committee disputes can make the judiciary an unwitting third party at the bargaining table and a potential coercive force in the collective bargaining processes. We embrace the position taken in School District v. Holland Education Ass‘n, 380 Mich. 314, 157 N.W.2d 206 (1968), where it was held that the trial court, before giving affirmative relief, should normally conduct a hearing where it would review what has gone on between the disputants and then deter-
In conclusion, we would emphasize that the solution to the complex problem involving public schools, teachers and collective bargaining rests within the capable hands of the members of our Legislature. They will not want for proposed answers. During its January, 1969 session, the General Assembly created a “Commission to Study the Ways and Means of Avoiding and Resolving Impasses Which Arise During Contract Negotiations Between School Teachers’ Organizations and School Committees.” The commission‘s report was published on March 2, 1970. A majority of the commission recommended compulsory and binding arbitration on all matters. Another commissioner asked for a qualified right to strike while two others declared that “teachers have an ethical, moral and professional right to withhold their services.” One commission member took a neutral position by endorsing neither the Majority Report nor any of the Minority Reports. The diverse opinions expressed within the commission are ample proof that the policy to be followed is the one which must be laid out by the members of the Senate and House of Representatives.
The petition for certiorari is granted; the temporary restraining order is quashed pro forma and the papers in the case are returned to the Superior Court.
Mr. Chief Justice Roberts, dissenting. The majority has asserted that “[t]here is no constitutionally protected fundamental right to strike.” Moreover, the majority states that since there is no constitutional right to strike, the teachers must obtain this right in a clear and
The right to strike was never explicitly granted to any employees, public or private. The labor union and the strike arose out of economic struggle and not by the action of any legislature. Chief Justice Taft recognized the right of employees to strike long before the National Labor Relations Act (NLRA),
“Is interference of a labor organization by persuasion and appeal to induce a strike against low wages under such circumstances without lawful excuse and malicious? We think not. Labor unions are recognized by the Clayton Act as legal when instituted for mutual help and lawfully carrying out their legitimate objects. They have long been thus recognized by the courts. They were organized out of the necessities of the situation. A single employee was helpless in dealing with an employer. He was dependent ordinarily on his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and to resist arbitrary and unfair treatment. Union was essential to give laborers opportunity to deal on equality with their employer. They united to exert influence upon him and to leave him in a body in order by this inconvenience to induce him to make better terms with them. They were withholding their labor of economic value to make him pay what they thought it was worth. The right to combine for such a lawful purpose has in many years not been denied by any court. The strike became a law-
ful instrument in a lawful economic struggle or competition between employer and employees as to the share or division between them of the joint product of labor and capital.” American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184, 208-09, 42 S.Ct. 72, 78, 66 L.Ed. 189, 199-200 (1921).
Nowhere in the NLRA or other labor legislation does Congress expressly grant to employees the right to strike. Rather, in my opinion, this legislation was enacted for the protection of a right already possessed. Such protection was necessary to curb the repressive attitude of many state courts toward labor organizations and their activities. I reiterate that the legislation did not create any new rights for employees, for such rights would still exist if §7 of the NLRA were repealed. Allen Bradley Local No. 1111 v. Wisconsin Employment Relations Board, 237 Wis. 164, 177, 295 N.W. 791, 797 (1941), aff‘d 315 U. S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942). The fact is that §7 of that act makes no mention of the right to strike. In §13 thereof reference is made to the right to strike as follows: “Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.” Obviously, §13 is a rule of construction. Local 232, UAW v. Wisconsin Employment Relations Bd., 336 U. S. 245, 259, 69 S.Ct. 516, 524, 93 L.Ed. 651, 665-66 (1949). It is my opinion that the NLRA recognized the rights which labor already had and was intended to afford those rights extensive legislative protection.
Having concluded that the right to strike accrues to labor, not by legislative grant, but by the irresistible thrust of socio-economic forces, I turn to the question of whether the right to strike is within the protection of the constitutional guarantees. The Supreme Court has long recognized that the right of labor to organize and to bargain collectively is a fundamental right with constitutional protec-
I am persuaded that if the right to organize and to bargain collectively is constitutionally protected, then the right to strike, that is, for persons similarly situated to act in concert to promote and protect their economic welfare, must be an integral part of the collective bargaining process. That being so, it follows that it must be within the protection of the constitutional guarantees of the First Amendment. The collective bargaining process, if it does not include a constitutionally protected right to strike, would be little more than an exercise in sterile ritualism.2
Being of the opinion that the right to strike is constitutionally protected, I turn to the question whether public employees, by reason of such employment, have forfeited that right. I think not. No waiver of constitutional rights is contemplated by public employment. Keyishian v. Board of Regents, 385 U. S. 589, 605-06, 87 S.Ct. 675, 685, 17 L.Ed.2d 629, 642 (1967); Garrity v. New Jersey, 385 U. S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562, 567 (1967).
In the first place, I cannot agree that every strike by public employees necessarily threatens the public welfare and governmental paralysis. Merely because a group of em-
Underlying the argument of those who say public employees have no right to strike is the notion that one cannot strike against the sovereign. This idea finds its basis in the same philosophy which dictates that one cannot sue the sovereign. The doctrine emanates from the concept of English law that the King could do no wrong and that the sovereign was above the courts. In recent years, sovereign immunity in tort law has been extensively criticized as an anachronism, and many states, including Rhode Island, have through their highest courts abandoned the doctrine in whole or in part. Becker v. Beaudoin, 106 R. I. 562, 261 A.2d 896 (1970). Perpetuation of the doctrine of sovereign immunity in tort law led to a great many inequities, its application effecting many incongruous results. Simi-
In asserting my conviction that public employees have a constitutionally protected right to strike, I am not overlooking the police power of the state. I am fully aware that the Legislature has the inherent power to exercise the police power to protect the health, safety, and welfare of society. The police power may be invoked not only to prohibit strikes on the part of public employees but, where the effect of a strike would be to threaten the public interest, to forbid strikes by employees in the private sector. But surely the police power may be exercised where a strike on the part of public employees would curtail an essential public service.
In Local 232, UAW v. Wisconsin Employment Relations Bd., supra, at 259, 69 S.Ct. at 524, 93 L.Ed. at 666, the Court said: “The right to strike, because of its more serious impact upon the public interest, is more vulnerable to regulation than the right to organize and select representatives for lawful purposes of collective bargaining which this Court has characterized as a ‘fundamental right’ and which, as the Court has pointed out, was recognized as such in its decisions long before it was given protection by the National Labor Relations Act. Labor Board v. Jones & Laughlin, 301 U. S. 1, 33.” Obviously, the Court in that case was recognizing the susceptibility of the right to strike to regulation by the state or, in other words, that where the public interest would be adversely affected by employees exercising the right to strike, the state may, by a valid exercise of the police power, prohibit such a group from striking.
In so doing, however, the Legislature must be cognizant
I subscribe, then, to the proposition that the right to strike is fundamental and is an integral part of the collective bargaining process. I further hold that the right to strike as an inherent component of the collective bargaining process is constitutionally protected for the benefit of those employed in the public sector as well as those employed in the private sector. I recognize, however, that the state may, by a valid exercise of the police power, proscribe an exercise of the right to strike with respect to those employed in areas of the public service where to permit its exercise would be to make probable an adverse effect on the public health, safety, or welfare.
Vincent J. Piccirilli, Robert A. Liguori, Town Solicitor, for plaintiff-respondent.
Julius C. Michaelson, Richard A. Skolnik, (on behalf of Amicus Curiae-American Federation of Teachers, AFL-CIO, and Rhode Island Federation of Teachers, AFL-CIO).