School Committee of Town of Westerly v. Westerly Teachers Ass'n

• Decision Date: 31 January 1973
• Docket Number: No. 1874-M,1874-M
• Citation: 111 R.I. 96,299 A.2d 441
• Parties: , 82 L.R.R.M. (BNA) 2567, 70 Lab.Cas. P 52,981 SCHOOL COMMITTEE OF the TOWN OF WESTERLY v. WESTERLY TEACHERS ASSOCIATION. P.
• Court: Rhode Island Supreme Court

Page 441

299 A.2d 441

111 R.I. 96, 82 L.R.R.M. (BNA) 2567, 70 Lab.Cas. P 52,981

SCHOOL COMMITTEE OF the TOWN OF WESTERLY v. WESTERLY TEACHERS ASSOCIATION.

No. 1874-M.P.

Supreme Court of Rhode Island.

Jan. 31, 1973.

Vincent J. Piccirilli, Providence, Robert A. Liguori, Town Sol., Westerly, for plaintiff-respondent

[111 R.I. 113] Natale L. Urso, Westerly, Robert H. Chanin, National Education Assn., Washington, D.C., for defendant-petitioner.

Julius C. Michaelson, Richard A. Skolnik, Providence, for amicus curiae American Federation of Teachers, AFL-CIO and Rhode Island Federation of Teachers, AFL-CIO.

OPINION

KELLEHER, Justice.

Last September when the public school bells rang to announce the beginning of a new school year, there was one group whose response was something less than unanimous. It was the schoolteachers. In several communities they appeared at the schoolhouse doors not to teach but to picket. A phrase was heard which until recently was usually uttered by those engaged in the private sector of employment. It was 'no contract, no work.'

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 relevant provisions of G.L.1956 (1968 Reenactment) ch. 9.3 of title 28, the School Teachers' Arbitration Act. However, since the arbitrators' unanimous decision related to 'matters involving the expenditure of money,' it was not binding and was rejected by the school committee. Matters reached an impasse in late August, 1972.

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 Fourteenth Amendment conferred the absolute right to strike. Dorchy v. Kansas, 272 U.S. 306, 47 S.Ct. 86, 71 L.Ed. 248 (1926). It was pointed out in United Federation of Postal Clerks v. Blount, 325 F.Supp. 879 (D.D.C.1971), aff'd, 404 U.S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971), that at common law no employee whether private or public had a constitutional right to strike in concert with fellow workers because such an association was often regarded as an illegal conspiracy which was punishable under the criminal law. The conspiracy weapon was removed and the private employees' right to strike became fully protected with the passage of sec. 7 of the National Labor Relations Act, 49 Stat. 449 (1935). See International Union, U.A.W.A., A.F.L., Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651 (1949). In the years that have ensued since the first Pawtucket schoolteachers' case, there has not been any instance where any court has held that public employees have a constitutional right to strike.

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 XII, sec. 1 of the Rhode Island constitution. This responsibility is carried on at the local level by the school committee as an agent of the state.

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 against strikes by public employees does not constitute involuntary servitude or an unwarranted impingement on one's constitutional rights be they of free speech, assembly, due process or equal protection.

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 right to strike. They embark on this effort by first pointing out that the General Assembly in its several enactments according collective bargaining rights to various groups of public employees has specifically stated that they shall not have the right to strike and then stress the absence of any such language as it concerns the teaching profession. The teachers look upon the legislative silence as implicit permission to go on strike. We disagree.

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 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...