Timberlane Regional School Dist. v. Timberlane Regional Ed. Ass'n

• Decision Date: 03 April 1974
• Docket Number: No. 6879,6879
• Citation: 114 N.H. 245,317 A.2d 555
• Parties: , 87 L.R.R.M. (BNA) 2015, 74 Lab.Cas. P 53,349 TIMBERLANE REGIONAL SCHOOL DISTRICT v. TIMBERLANE REGIONAL EDUCATION ASSOCIATION et al.
• Court: New Hampshire Supreme Court

Page 555

317 A.2d 555

114 N.H. 245, 87 L.R.R.M. (BNA) 2015, 74 Lab.Cas. P 53,349

TIMBERLANE REGIONAL SCHOOL DISTRICT v. TIMBERLANE REGIONAL EDUCATION ASSOCIATION et al.

No. 6879.

Supreme Court of New Hampshire.

April 3, 1974.

Soule & Leslie, Salem (Lewis F. Soule, Salem, orally) for plaintiff.

McLane, Graf, Greene & Brown and Jack B. Middleton, Manchester, for defendant.

Nighswander, Lord, Martin & KillKelley and Bradley F. Kidder, Laconia, by brief, for N.H. School Bds. Ass'n as amicus curiae.

Paul F. Cavanaugh, City Solicitor, by brief, for the city of Concord as amicus curiae.

KENISON, Chief Justice.

The major issue in this case is whether the presiding justice properly denied the plaintiff's petition to enjoin the defendants from engaging in or aiding and abetting a strike. The plaintiff filed the petition for injunction on February 28, 1974, and requested an immediate hearing. The Presiding Justice, Morris, J., assigned the case to Master Leonard C. Hardwick, Esquire, who, after several hearings and meetings on the petition, filed a report on March 11, 1974 recommending the petition be presently denied but remain on file to be brought forward on the motion of the court or of the parties. The presiding justice approved the master's report forthwith and issued a decree in accordance with the recommendation. On March 19, 1974, the plaintiff filed a motion to set aside the decree as against the law and the facts. This motion was denied by the court, subject to the plaintiff's exception, and was reserved and and transferred. The following facts appear from the pleadings, reserved case, briefs and oral arguments.

The Timberlane Regional Education Association (hereinafter TREA) is the collective bargaining agent for some, if not all, of the teachers in the Timberlane Regional School District and is affiliated with the New Hampshire Education Association, whose membership consists of school teachers employed throughout the State. The TREA and the Timberlane Regional School Board (hereinafter board) agreed to meet during the spring and summer of 1973 for the purpose of negotiating a contract for the 1974-75 school year.

The board proceeded to hire a professional negotiator and delayed meeting with the TREA until July 31, 1973. The parties met throughout the fall and early winter and, by January 14, 1974, had reached a tentative agreement on approximately one-quarter of the items submitted for negotiation by the TREA. The majority of the remaining items, which included salary schedules, sick and emergency leave, teacher rights and responsibilities, teacher evaluation, academic freedom and grievance procedures, had been declared non-negotiable by the board. It became apparent that an impasse was developing in regard to these items, and the members of the TREA voted to submit their differences with the board to a mediator for resolution. The TREA contacted the Federal Mediation Service which agreed to undertake mediation if both parties so requested. The board, however, declined to accept this offer, and several other attempts to find a mutually agreeable mediator came to naught.

The parties resumed negotiations on February 15, 1974, and met again on February 18, 20 and 23. These meetings resulted in a tentative agreement on several of the remaining items, but their differences with respect to great majority of these items were unresolved. During the course of negotiations on February 23, 1974, the TREA discovered for the first time that on February 16, 1974, the board had submitted salary proposals to the budget committee, despite the fact that an agreement had not been worked out between the parties on this matter. The board then stated at the end of this session that it would go no further and declined to negotiate on the evening of February 23, or at any time on February 24, and 25, 1974.

The members of the TREA met on February 25, 1974, and voted to call for mediation because of an impasse in negotiations and to refuse to teach until mediation began. Last minute efforts to achieve compromise between the positions of the parties came to no avail, and the strike commenced on February 26, 1974. Approximately two-thirds of the teaching staff in the district did not report to work, and pickets were set up in the vicinity of the schools. The board was initially able to keep all of the schools in the district open by hiring substitute teachers, and student attendance did not drop appreciably. The board, however, was ultimately forced to shut down the Timberlane Regional High and Junior High Schools.

'(P)ublic employer collective bargaining is now an established fact at the federal level and in the majority of state and local governments. The transition from uniform disapproval to majority acceptance of public employer collective bargaining began in 1955, when New Hampshire adopted legislation (Laws 1955, 255:1 effective July 14, 1955, now RSA 31:3) authorizing town governments to engage in collective bargaining with public employee unions.' Blais, State Legislative Control over the Conditions of Public Employment: Defining the Scope of Collective Bargaining for State and Municipal Employees, 26 Vand.L.Rev. 1, 2 (1973). Nevertheless, in most jurisdictions, a strike by public employees is prohibited either by statute or by judicial decision. Annot., 37 A.L.R.3d 1147 §§ 2, 3 (1971, Supp.1973). New Hampshire is no exception to this rule, for this court held in Manchester v. Manchester Teachers Guild, 100 N.H. 507, 510, 131 A.2d 59, 63 (1957), that such strikes are illegal under the common law of this State and characterized this prohibition as a matter of public policy solely within the province of the legislature. See N. Edwards, The Courts and the Public Schools 682 (1971).

We are aware of the general dissatisfaction with the effect of this prohibition on labor negotiations between government and public employees. See, e.g., Anderson, The Impact of Public Sector Bargaining 1973 Wis.L.Rev. 986, 1023-25 (1973); Burton & Krider, The Role and Consequences of Strikes by Public Employees, 79 Yale L.J. 418, 437-40 (1970); Edwards, The Emerging Duty to Bargain in the Public Sector, 71 Mich.L.Rev. 885, 891-93 (1973); Foegen, A Qualified Right to Strike-in the Public Interest, 18 Lab.L.J. 90, 98-99 (1967); Kheel, Strikes and Public Employment, 67 Mich.L.Rev. 931 (1969); Wellington & Winter, Structuring Collective Bargaining in Public Employment, 79 Yale L.J. 805, 822-25 (1970). In the private sector, the right to strike is viewed as an integral part of the collective bargaining process. Anderson, Strikes and Impasse Resolution in Public Employment, 67 Mich.L.Rev. 943, 957 (1969). In the public sector, however, the denial of the right to strike has the effect of heavily weighing the collective bargaining process in favor of the government. Without legislation providing alternative methods for resolving impasses in negotiation, there is no ultimate sanction available to the public employees for compelling the good faith of the government, and as a consequence, the only recourse available to them, if they are being treated unfairly, is to terminate their employment or to engage in an illegal strike. Bernstein, Alternatives to the Strike in Public Labor Relations, 85 Harv.L.Rev. 459, 464-66 (1971); Lev, Strikes by Government Employees: Problems and Solutions, 57 A.B.A.J. 771 (1971); Note: Striking a Balance in Bargaining with Public School Teachers, 56 Ia.L.Rev. 598, 599-601 (1971); Note: Teachers' Strikes-A New Militancy, 43 Notre Dame Lawyer 367 (1968).

It is not a proper...