SEPTA Hearing: Balancing the Right to Vote and the Right to Strike

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

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.

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