The Southeastern Pennsylvania Transportation Authority has, as promised, sought a court order to enjoin the strike that has shut down public transit in Philadelphia.  On Friday, the court declined to issue an immediate order but scheduled a hearing on Monday to decide the question prior to election day.  In my view, a narrow injunction – one focused on election day – is appropriate in these circumstances.  But the broader injunction that SEPTA is seeking should be denied.

As we noted on Thursday, Pennsylvania law protects transit employees’ right to strike. Like federal labor law, state law recognizes that the right to strike is critical to workers’ ability to secure fair terms and conditions of employment.  State law does allow courts to enjoin transit strikes, but only in narrow circumstances: only when “the court finds that the strike creates a clear and present danger or threat to the health, safety or welfare of the public.”  Crucially, that danger or threat must “not be one which is normally incident to a strike.”  Before a court can enjoin a strike, therefore, it must find some additional or special threat to the public welfare that is not incident to any transit strike.

SEPTA wants to shut the strike down immediately and in its entirety.  As reported this weekend:

SEPTA’s injunction motion described the strike as a “clear and present danger” to the public’s health, safety, and welfare. It argued the strike was keeping children from school, making travel around the city difficult for people with disabilities and those in need of medical treatment, and threatening to disenfranchise voters in Tuesday’s presidential election.

These are of course significant concerns, but they are the kinds of things that are incident to any transit strike.  Under Pennsylvania law, then, they are not the kinds of concerns that can justify an injunction.  Put differently, if a court finds that transit disruption is enough to justify an injunction, the court would be holding that transit strikes are effectively prohibited by law.  This would be unfaithful to the statute.

A transit strike on election day is, however, a different matter.  Assuming SEPTA can show that the strike will interfere with residents’ ability to access the polls, the agency will have demonstrated a threat to public welfare that is not incident to all transit strikes.  And it would therefore be entitled to an injunction covering election day (and perhaps enough time prior to election day to ensure that the trains are running when the polls open).

The right to strike is a critical one.  So is the right to vote.  There’s a straightforward way to give effect to both rights: a narrow injunction that deals with election day, but nothing more than that.