Bristol Township Education Ass'n v. School District

Opinion by

Judge Blatt,

The Bristol Township Education Association (appellant) has appealed from the issuance of an injunction pursuant to Section 1003 of the Public Employe Relations Act, Act of July 23, 1970, P. L. 563, 43 P.S. §1101. 1003 (PERA) enjoining the appellant from any further strike or work stoppage against the School District of Bristol Township (appellee).

Without reciting the entire procedural history of this case, we will merely note that its major procedural complexities have been previously argued before this Court and that orders have already been issued denying a motion to quash and declaring that this appeal did in itself not operate as a supersedeas without an approved security.

The case is before us now on its merits, and our scope of review is limited to determining whether or not apparently reasonable grounds existed for the equitable relief ordered by the lower court and, unless it is plain that no such grounds existed or that the rules of law relied on were palpably wrong or clearly inapplicable, we must affirm. Armstrong School District v. Armstrong Education Association, 5 Pa. Commonwealth Ct. 378, 291 A. 2d 120 (1972) (Armstrong I).

We find that the injunction was properly issued.

The language of Section 1003 of the PERA, 43 P.S. §1101.1003, provides: “If a strike by public employes occurs after the collective bargaining processes set forth in sections 801 and 802 of Article VIII of this act have been completely utilized and exhausted, it 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. In such cases the public employer shall initiate, in the court of common pleas of the jurisdiction where such strike occurs, an action for equitable relief including but not limited to appropriate injunctions and shall be entitled to such relief if the court finds that the strike creates a clear and present danger or threat to the health, safety or welfare of the public.” (Emphasis added.)

The body of law which has been developed in this area requires adherence to several basic principles: (1) teachers shall not be prohibited from striking if an impasse occurs after the statutory negotiation and mediation procedures have been completed; (2) equitable relief may be employed to halt a lawful strike only if the strike creates a clear and present danger or threat to the health, safety or welfare of the public; (3) this clear and present danger test does not contemplate a consideration of those effects which are normally incident to a strike unless such matters accumulate to such an extent, be continued so long or be aggravated by some unexpected development so that the public health, safety and welfare would in fact then be endangered. Armstrong I, supra; and (4) the possibility of dangerous effects of the strike may be considered in assessing its impact. Bellefonte Area School Board v. The Bellefonte Education Association, 9 Pa. Commonwealth Ct. 210, 304 A. 2d 922 (1973).

Although the above criteria should be strictly applied, we may not apply such criteria directly to the testimony as a whole, but only to the findings of the Chancellor, if such findings are supported by sufficient evidence. Even if, in our view, a preponderance of testimony should exist against a finding or a reasonable inference by the Chancellor, we must not overturn his findings or inferences if there is any testimony which, if believed, will warrant them. Ross v. Philadelphia Federation of Teachers, 8 Pa. Commonwealth Ct. 204, 301 A. 2d 405 (1973).

The Chancellor found that the following facts justified the issuance of the injunction: (1) many of the students, who comprise approximately 20% of the Township population, are being denied complete educational programs; (2) working mothers, who may have school-age children, are injuriously affected by the strike; (3) 26 student days have been lost because of the strike and only 23 possible make-up instructional student days remain before the end of the fiscal year on June 30, 1974; (4) “[a] partial loss of state reimbursement — a substantial sum ... is suffered by a district for failure to comply with state requirements”;¹ (5) cafeteria workers and bus drivers have lost wages; (6) special education and training programs for most of the mentally retarded, brain injured and socially and emotionally disturbed students are not being conducted; (7) there is a likelihood that the nonattendance of college-bound high school seniors will work to their disadvantage in College admission; (8) county services are unavailable for students with hearing, vision or speech disabilities; and (9) extra-curricular activities are not in operation.

In addition, the Chancellor found further justification for his injunction in that the following community programs have been inoperative because of the strike; (10) driver education; (11) a community swim program which involves life-saving courses and rescue squad practice; (12) adult education for basic subjects and citizenship training, high school instruction and enrichment education; (13) a cooperative work experience program; (14) the only driver improvement program in the lower Bucks County (for retention of operating privileges upon accumulation of points); (15) federally funded “Itinerant teachers” programs; (16) social worker programs; and (17) free lunch programs.

The testimony presented by the appellee, although it was disputed and at times contradicted by the appellant, substantially supports these findings and was apparently believed by the Chancellor. We are, therefore, bound by these facts. We must further consider, however, if such facts would support the issuance of an injunction.

As to the potential loss of state subsidies because of the failure of the schools to operate for the required time, this is, of course, an important factor to be considered in the overall assessment of the effects of such a strike. In Root v. Northern Cambria School District, 10 Pa. Commonwealth Ct. 174, 181, 309 A. 2d 175, 178 (1974), we said, “[t]he loss of any money needed to support the schools, especially those closed by labor troubles, is clearly a threat to the general welfare and, as Armstrong suggests, could compel injunctive relief.” (Emphasis added.) This does not mean, of course, that the Legislature intended to put a limit on the number of days that a strike might last. Nor does it mean that the mere loss or threatened loss of subsidies is alone sufficient to warrant the enjoining of the strike. It is also necessary to establish that the loss of such subsidies would present a danger or threat to the health, safety or welfare of the public. Here the Chancellor specifically found, on the basis of sufficient evidence, that the appellee would be unable to make up all the days lost by the strike and that a continuation of the strike would further aggravate the situation. The subsidy could be lost for the days not made up and there was evidence offered as to the effect of such a possibility. The Chancellor weighed this evidence, as was his responsibility, and determined that the threatened loss of the subsidies would constitute a danger which required that the strike be enjoined. We cannot hold that he erred in so finding.

As to the other findings made by the Chancellor, we cannot hold that any of them taken alone or considered together would necessarily constitute a basis for the injunction issued herein. All are inconveniences which the Legislature could reasonably have expected would ordinarily occur as the result of a strike by school teachers. This is not to say, however, as we noted in Armstrong I, “that such inconveniences . . . incidental to a strike might not conceivably accumulate to such an extent, be continued so long or be aggravated by some unexpected development, so that the public health, safety and welfare would in fact then be endangered.” 5 Pa. Commonwealth Ct. at 386-387, 291 A. 2d at 125. Here the strike has lasted for 26 days and it would not necessarily have been unreasonable for the Chancellor to find that some of the above noted inconveniences had accumulated or been aggravated to such an extent as to warrant the issuance of an injunction. Even as to the community-wide programs, those not involved only with the schools or the educational process, the cumulative and extended loss of such programs (i.e., programs for social workers and “Itinerant teachers,” the work experience program, the driver improvement program, etc.) could have a detrimental effect on the welfare of the community as a whole. Bee Boss, supra. Under the circumstances here, therefore, the court below had sufficient grounds for issuing an injunction.

Even recognizing the propriety of the issuance of the injunction under the facts as found by the Chancellor, however, its scope must still be reviewed. The appellant contends that the Chancellor exceeded his jurisdiction by imposing a “judicially created contract” on the parties and further erred in failing to mandate “adherence to the legislative minimums.” Common pleas courts have limited equity jurisdiction in these matters, and may act only to end a strike, not to impose any judicial settlement thereon. Armstrong School District v. Armstrong Education Association, 5 Pa. Commonwealth Ct. 387, 291 A. 2d 125 (1972). (Armstrong II). Here the Chancellor ordered that the “employes shall return to duty under terms and conditions of employment contained in the last bilaterally, voluntarily assented-to contract between the parties.” Most importantly, however, the Chancellor added that the mutually agreed upon changes to that contract should be heeded by the parties. The parties were directed to proceed with negotiations and, of course, any resolution by them would not be interfered with by the court. We cannot hold that this was an attempt by the Chancellor to impose a forced permanent settlement. It was, we believe, merely the provision for “the orderly resumption of the employer-employe relationship upon the return of the teachers and professional employes to their respective duties.” Such an order is realistic and necessary for the ending of a strike, and it provides a basis upon which the teachers could return to work. We note, however, that it may be mere surplusage. Even without such an order, the teachers would still have returned to work under conditions existing immediately prior to the inception of the strike.

The Chancellor’s order also provides “that the Plaintiff shall have the absolute right to implement its proposed revised scheduling of classes and teacher assignments for the 1973-74 school year until such time as the same is changed by mutual agreement.” Here we believe that the Chancellor did seek to impose a condition on the parties which had not been previously in effect or subsequently mutually agreed to, and we believe that this is beyond the Chancellor’s powers. It might well be that the appellee would have the authority to take this action on its own, because as we said in Boot, supra, “[t]he Legislature’s direction that schools shall be kept open 180 days of course means that school boards shall schedule and attempt to provide for school sessions of this duration.” (Emphasis added.) 10 Pa. Commonwealth Ct. at 179, 309 A. 2d at 177. The discretion in this difficult scheduling matter, however, is not within the jurisdiction of the Chancellor in this particular proceeding.

For the above stated reasons, we affirm the order of the Chancellor, but we do so only to the extent that it enjoins the continuation of the strike and provides for a return to work under previously existing conditions or as modified by mutually agreed upon changes thereto.

1 In bis discussion, the Chancellor said directly that “[t]here is now no possibility of the District’s fulfilling the mandate of the School Code that there shall be at least 180 days of school by June 30, 1974, the end of the fiscal year. School subsidies will most probably be lost as a direct result of this situation.”