SCH. DIST. NO. 351 ONEIDA CTY v. Oneida Ed. Ass'n , 98 Idaho 486 ( 1977 )

BISTLINE, Justice,

concurring.

I concur in the majority’s conclusion that before an injunction may issue, the district court must hold a hearing at which both the teachers’ union and the school board may present their cases.

The majority addresses the question of whether public employees such as teachers have a constitutionally protected right to strike which may never be abridged under any circumstances. I concur in the majority’s conclusion that that question must be answered in the negative — though not for the reasons cited by the majority. If, as a matter of law, the teachers had an absolute right to strike, then an injunction could never issue and the hearing procedures mandated by today’s opinion would never come into play.

The question actually raised by the teachers on this appeal, however, is whether such public employees, under any conceivable circumstances, ever have a right to strike. A negative answer to this question of law, as Judge Rasmussen clearly perceived below, would likewise render unnecessary the hearing procedures mandated by today’s opinion. Such a per se rule would also be an unwise policy for this Court to adopt in the absence of an express statutory requirement that we do so:

“I think it is a very unwise policy to allow a trial court to enjoin a peaceful strike, in the absence of any way to insure that the underlying dispute will be discussed and settled amicably. To prohibit a strike in a context where this amounts to ending any pressure on the employer to bargain in good faith with representatives of the employees is to invite arbitrary action by the employer, illegal strikes, violence, and bitter feelings which may do longlasting damage to the community.” Anderson Federation of Teachers v. Anderson, 252 Ind. 558, 251 N.E.2d 15, 22 (1969), (Chief Justice DeBruler, dissenting).

It seems clear, therefore, that the question is not to be answered in the negative. The authorities relied upon by the majority make it clear that the equitable remedy of an injunction should issue only after all parties have been heard and the district court has considered whether recognized methods of settlement have failed, whether negotiations were conducted in good faith, and whether the public health, safety and welfare would be substantially harmed if the strike were allowed to continue. An injunction will then issue if the district court determines that the disruption of a strike would, under the circumstances, be so great as to warrant overriding the legitimate interest of the striking public employees in having an effective means to insure good-faith bargaining by their employer. See also, School Dist. v. Holland Education Asso., 380 Mich. 314, 157 N.W.2d 206 (1968); Timberlane Regional School Dist. v. Timberlane Regional Education Asso., 114 N.H. 245, 317 A.2d 555 (1974); Armstrong Education Asso. v. Armstrong School Dist., 5 Pa. Cmwlth. 378, 291 A.2d 120 (1972). It is upon this understanding of today’s opinion that I base my concurrence.