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Judge will have to balance Local 234's right to strike vs. citizens' right to vote

SEPTA has routinely gone to court to prevent striking workers from disrupting the agency's non-striking services, like it did Tuesday when picketers disrupted Regional Rail.

SEPTA has routinely gone to court to prevent striking workers from disrupting the agency's non-striking services, like it did Tuesday when picketers disrupted Regional Rail.

The agency, however, had never gone to court to end a strike - until Friday.

In 2009, Mayor Michael Nutter raised the possibility of seeking a court order to force strikers back to work. He did not.

The hurdle for anyone trying to a halt a public-sector strike in Pennsylvania is in the state Public Employee Relations Act.

Under the act, public employees have the right to strike unless the strike "creates a clear and present danger or threat to the health, safety or welfare of the public."

SEPTA on Friday argued in Philadelphia Common Pleas Court that the four-day-old strike by Transport Workers Union Local 234 was doing just that. The argument worked for the city of Pittsburgh in 1992, ending a strike by transit workers.

Judge Linda Carpenter denied SEPTA's request for an immediate halt but said she would reconsider on Monday - if there still is no labor deal before Election Day.

Benjamin I. Sachs, the Kestnbaum Professor of Labor and Industry at Harvard Law School, said the judge needed to balance workers' right to strike with citizens' right to vote.

"Does disruption of an election constitute a clear and present danger to the welfare of the public? Intuitively, the answer would seem to be 'yes,' assuming there's evidence that the strike will actually have a disruptive effect on the election," Sachs wrote on his labor and politics blog this week.

Anthony L. Marchetti Jr., a lawyer in Cherry Hill specializing in labor law, said the judge has a hard call to make.

"It's such a big deal that you're going to take away a public employee's right to strike," Marchetti said.

The "clear and present danger" argument was used to end a 1990 strike by professors at Temple University.

Sachs wrote that "the court found the following factors were sufficient to support an injunction: the fact that the strike could lead to a reduction in student financial aid, to lost course time and canceled classes, to delayed graduations, and to an adverse impact on Temple University's national stature."

If solid evidence shows that the SEPTA strike would interfere with voting, Sachs wrote, the Temple case "suggests a pretty good probability that a court would enjoin the transit workers strike - at least on election day."

Whatever the judge decides likely will be appealed, but there was a time in Philadelphia when striking workers decided they wouldn't obey a judge.

On July 16, 1986, as 40,000 tons of trash piled up on curbs, and in alleys, garages and temporary sites in Philadelphia, the city's blue-collar workers, by then on strike for 16 days, defied a Common Pleas judge's order to return to work.

Common Pleas Judge Edward J. Blake ordered lawyers for District Council 33, which represented the striking sanitation workers, to go to the picket lines and tell workers to go back to the job, but no one moved off the picket line.

Mayor W. Wilson Goode threatened to fire the 2,100 sanitation workers if they were held in contempt of court and didn't return to work.

Two days after the judge issued his order, the workers, represented by their shop stewards, voted to return to work over the objections of their union leader, Earl Stout. They reported for work the next day and began clearing the accumulated mountains of malodorous trash.

bmoran@phillynews.com

215-854-5983@RobertMoran215

Staff writer Jane M. Von Bergen contributed to this article.