Plaintiff board is an educational public entity organized under Title 18A of the New Jersey Statutes. It conducts a secondary level public vocational school (hereinafter the School) for students residing in Sussex County. The Board and defendants are in the middle of teacher contract negotiations. The negotiations are not going well. Most of the teachers employed by the Board are presently on strike. A number of these teachers have been picketing the School on a daily basis since September 20, 1979.
The teachers employed by the Board are public employees. N.J.Const. (1947), Art. I, par. 19, gives public employees the right to organize and to negotiate on a group basis through representatives of their choosing. However, public employees in New Jersey never had and do not now have the right to strike. Union Beach Bd. of Ed. v. N.J. Education Ass'n , 53 N.J. 29
(1968). A verified complaint filed with me by the Board on September 19 established that an unlawful teachers' strike was in progress. In accordance with obligations imposed upon me by law, on September 20 I signed an order to show cause, returnable on October 3, which contained temporary restraints forbidding defendants to engage in a strike against the Board or to establish picket lines at the School. See, generally, Teaneck Tp. v. Local 42 , 158 N.J. Super. 131 (App.Div.1978). Thereafter, reports on the radio and in the press indicated that the strike continued despite the order signed by me and that picketing was also going on at the School. On my own initiative I decided on September 24 that I would hold a hearing on September 26 to ascertain whether any of the defendants were in fact violating my order of September 20 prohibiting striking and picketing.
It is important that the parties in this case, and the public, understand why I decided on my own initiative to hold a hearing on September 26. The order I signed on September 20 was not a private document conferring a private benefit upon the Board, to be enforced or not enforced at the whim of the Board. It did confer some rights upon the Board, but much more importantly, it declared an obligation under public law so far as defendants and the teachers employed by the Board are concerned. Violation of such an order is an affront, not to the individual judge who happens to have had the duty to sign the order in question, but to the constitutional, legal and moral rules under which we live. Ultimately, violation of such an order is a frontal assault upon basic concepts of ordered democratic liberty. It challenges the right of the people of this State and this nation to govern themselves in accordance with rules of public conduct established on a democratic and constitutional basis. Quite simply, and quite literally, violation of such an order is intolerable, regardless whether the Board complained about it or not. (In this case the Board did not make any complaint about violation of the September 20 order prior to my decision to hold the hearing.)
Let me stress at this point that my decision in this case does not turn upon the ultimate soundness of the legal rule that public school teachers may not strike. The legal rule against strikes by public school teachers obviously is not, in itself, of the same order of human importance as the legal rules against murder, rape, arson or robbery. No civilized society (much less a highly developed constitutional democracy such as our own) could conceivably permit murder, rape, arson, robbery, or the like. Although there are strong public policy reasons against permitting any public employees, including public school teachers, to strike, and although these reasons have up until now been persuasive so far as the Supreme Court and the Legislature of this State are concerned, there are sensible arguments which can be made for permitting public school teachers to strike.
There are sensible reasons for arguing that we should distinguish between different kinds of public employees when we create rules about the right to strike. I think it is axiomatic that, in the long run, the quality of life in our society depends very much upon the quality and integrity of our public educational institutions. On the other hand, I think that, in the short run at least, there is an obvious difference between the kind of immediate danger to life, safety and health posed by something like a police strike, or a firefighters' strike, or a strike in a sewage disposal plant, and the kind of problems posed by a strike of public school teachers. After all, while we never intentionally close our police, firefighting or sewer operations for even an hour, we routinely close our public school systems every summer for two months. The fact that there is a difference between the public impact of not having the services in question might well mean that we should treat the strikes and the employees involved differently.
I, for one, can readily conceive of an ordered constitutional democracy in which public school teachers, did have the legal right to strike. Of course, even if they had the legal right to strike, it might well be that for reasons of professional integrity
most teachers would elect not to exercise that legal right. I myself would not be particularly surprised if the Legislature did some day grant public school teachers at least a limited right to strike.
But the fact is that, as of right now, the Supreme Court and the Legislature of this State, acting under powers constitutionally granted to them by the people, have established the legal rule that public school teachers may not strike. The Legislature has the right to change that rule whenever it concludes that the public interest so requires. Defendants and others of similar views have the right to work within the legal and constitutional systems of our State and nation to change the rule against strikes by public school teachers. There are many entirely appropriate, meaningful and commendable ways in which they may work to advance their cause. However, defendants do not have the right to break the presently established legal rule because ...