Anderson Federation of Teachers Local 519 v. SCHOOL CITY OF ANDERSON , 252 Ind. 558 ( 1969 )

Givan, J.

On May 6, the Superior Court of Madison County found the appellant, Anderson Federation of Teachers, Local 519, in contempt of court for the violation of a restraining order which had been issued without notice on the 2nd day of May, 1968, directing the appellant, teachers' union, and its members to refrain from picketing and striking against the appellee school corporation. It is from this judgment of contempt that this appeal is taken.

The appellant is an organization of public school teachers employed by the appellee.

The appellee is a municipal corporation organized under the statutes of this state for the purpose of operating the public schools within the boundaries of the School City of Anderson, Indiana.

In the spring of 1968, the appellant and the appellees entered into negotiations concerning salary schedules for the following year. These negotiations apparently were not satisfactory to the appellant for on May 1,1968, the appellant instituted a strike against the school corporation and established picket lines at the various schools operated by appellee. Evidence discloses that school children were unloaded in the public streets because of the presence of the picket lines. It was this action of picketing by the appellant which precipitated the temporary restraining order issued on May 2, 1968, and it was the continuation of this activity without regard for the restraining order upon which the trial court based its judgment after a hearing on May 6, 1968, that the appellant was in contempt of court for violating the restraining order.

The trial court was in all things correct in its finding and judgment of contempt of court.

It is the contention of the appellant that Indiana’s “Little Norris-LaGuardian Act,” also known as the anti-injunction statute, the same being Burns’ Ind. Stat. Ann. § 40-501, et seq., is applicable in this case. This act prohibits the issuance of restraining orders and injunctions in matters involving labor disputes between unions and private employers. We do not agree with the appellant that this act is applicable to disputes concerning public employees. The overwhelming weight of authority in the United States is that government employees may not engage in a strike for any purpose.

The Supreme Court of the United States clearly enunciated the proposition that public employees did not have a right to strike and that the injunctive processes might properly be used to prevent or halt such strikes in the case of United States v. United Mine Workers (1947), 330 U. S. 258, 91 L. Ed. 884, 67 S. Ct. 677. This case has never been overruled or modified. The decision was later followed by Justice Goldsborough of the United States District Court for the District of Columbia in the case of United States v. Brotherhood of Locomotive Engineers (1948), 79 F. Supp. 485, certiorari denied 335 U. S. 867, 93 L. Ed. 412, 69 S. Ct. 137.

In the United Mine Workers case it was contended that the specifications in Section 13 of the statute are in general terms and make no express exception of the United States, thus it was argued the restraining order and injunction were forbidden by the act and wrongfully issued. In dealing with this argument the Supreme Court of the United States, beginning at page 272 of the official opinion, stated:

“. . . There is an old and well-known rule that statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign without express words to that effect. It has been stated, in cases in which there were extraneous and affirmative reasons for believing that the sovereign should also be deemed subject to a restrictive statute, that this rule was a rule of construction only. Though that may be true, the rule has been invoked successfully in cases so closely similar to the present one, and the statement of the rule in those cases has been so explicit, that we are inclined to give it much weight here. Congress was not ignorant of the rule which those cases reiterated; and, with knowledge of that rule, Congress would not, writing the Norris-LaGuardian Act, omit to use ‘clear and specific [language] to that effect’ if it actually-intended to reach the Government in all cases.”

The Court, however, did not rely entirely upon the above proposition, but, in addition, went on to observe as follows:

“But we need not place entire reliance in this exclusionary rule. Section 2, 29 USCA § 102, 9 FCA title 29, § 102, which declared the public policy of the United States as a guide to the Act’s interpretation, carries indications as to the scope of the Act. It predicates the purpose of the Act on the contrast between the position of the ‘individual unorganized worker’ and that of the ‘owners of property’ who have been permitted to ‘organize in the corporate and other forms of ownership association,’ and on the consequent helplessness of the worker ‘to exercise actual liberty of contract . . . and thereby to obtain acceptable terms and conditions of employment.’ The purpose of the Act is said to be to contribute to the worker’s ‘full freedom of asociation, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives . . . for the purpose of collective bargaining. . . .’ These considerations, on their face, obviously do not apply to the Government as an employer or to relations between the Government and its employees.”

We are in total accord with the above language and hold that it is equally applicable to the Indiana statute.

This same proposition has been followed generally in most of the other state jurisdictions where it has been repeatedly held that strikes by public employees are or should be prohibited and that injunctions should be granted to halt or prevent them. For reference see the following cases: School City of Pawtucket v. Pawtucket Teachers Alliance (1966), 101 R. I. 243, 221 A. 2d 806; Minneapolis Federation of Teachers v. Obermeyer et al. (1966), 275 Minn. 347, 147 N. W. 2d 358; City of Minot v. General Drivers and Helpers Union (1966), N. D., 142 N. W. 2d 612; Board of Education of Community Unit School District No. 2 v. Redding (1965), 32 Ill. 2d 567, 207 N. E. 2d 427; New Jersey Turnpike Authority v. American Federation et al. (1964), 83 N. J. Super. 389, 200 A. 2d 134; Donevero v. Jersey City Incinerator Authority (1962), 75 N. J. Supr. 217, 182 A. 2d 596; South Atlantic & Gulf Coast District of International Longshoremen’s Association v. Harris County (1962), Tex., 358 S. W. 2d 658; Hansen v. Commonwealth (1962), 344 Mass. 214, 181 N. E. 2d 843; Port of Seattle v. Int’l Longshoremen’s Union (1958), 52 Wash. 2d 317, 324 P. 2d 1099; City of Pawtucket v. Pawtucket Teachers Alliance (1958), 87 R. I. 364, 141 A. 2d 624; City of Manchester v. Manchester Teachers Guild (1957), 100 N. H. 507, 131 A. 2d 59; City of Alcoa v. Int’l. Brotherhood of Electrical Workers (1957), 203 Tenn. 12, 308 S. W. 2d 476; International Brotherhood of Electrical Workers v. Grand River Dam Authority (1956), Okla., 292 P. 2d 1018; City of Detroit v. Division 26 et al. (1952), 332 Mich. 237, 51 N. W. 2d 228; Norwalk Teachers Association v. Board of Education (1951), 138 Conn. 269, 83 A. 2d 482, 31 A. L. R. 2d 1133; City of Los Angeles v. Los Angeles Building and Trades Council (1949), 94 Cal. App. 2d 36, 210 Pac. 2d 305; Miami Waterworks Local 654 v. City of Miami (1946), 157 Fla. 445, 26 So. 2d 194.

We find only one case where an injunction to prevent a pending strike of public employees was denied. That case was Board of Education v. Public School Employees Union (1951), 233 Minn. 141, 45 N. W. 2d 797. That case, however, was overruled in 1966 by the Supreme Court of Minnesota in Minneapolis Federation of Teachers v. Obermeyer, supra.

The Indiana Continuing Legal Education Forum in 1968 circulated a publication entitled MUNICIPAL EMPLOYEE NEGOTIATIONS AND STRIKES in which they point out that almost without exception the state and federal, courts hold that strikes by public employees are illegal.

The publication also quotes from a letter written by President Franklin D. Roosevelt to the President of the National Federation of Federal Employees on August 16,1937, in which he said:

“Particularly, I want to emphasize my conviction that militant tactics have, no place in the functions of. any organization of Government employees ... A strike of public employees manifests nothing less than intent on their part to prevent or obstruct the operations of Government until their demands are • satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable.”

In a New York Supreme Court case Justice Emilio Nunez in granting an injunction against striking teachers made the following observation:

“Upon the signing of the Condon-Wadlin Act, Governor Dewey stated, in part, that ‘Every liberty enjoyed in this nation exists because it is protected by a government which functions uninterruptedly. The paralysis of any portion of government could quickly lead to the paralysis of all society. Paralysis of government is anarchy and in anarchy liberties become useless/ ” Board of Education of the City of New York v. Albert Shanker and United Federation of Teachers, Local 2, Supreme Court (1967), 283 N.Y.S.2d 548, 552.

We thus see that both the federal and state jurisdictions and men both liberal and conservative in their political philosophies have uniformly recognized that to allow a strike by public employees is not merely a matter of choice of political philosophies, but is a thing which cannot and must not be permitted if the orderly function of our society is to be preserved. This is not a matter for debate in the political arena for it appears fundamental, as stated by Governor Dewey, public strikes would lead to anarchy, and, as stated by. President Roosevelt, the public strike “is unthinkable and intolerable.”

The Madison Superior Court is, therefore, in all things affirmed.

Arterbum, J., concurs; Hunter, J., concurs with statement; DeBruler, C. J., dissents with opinion in which Jackson, J., concurs.

Hunter, J.

Heretofore I announced my determination not to participate in this case by reason of the fact that the issues presented involved litigation in the City of Anderson, Indiana, my place of residence. However, my sense of judicial responsibility and duty now impels me to do so, because of the gravity of the legal issues of public policy in the area of public education.

Therefore, I wholeheartedly concur in the opinion of Judge Givan in this case.