Government of the Virgin Islands Department of Education v. American Federation of Teachers, Local 1826, and All those Unnamed Members of the Bargaining Unit Who are Participating in Unlawful Job Actions

• Court: Superior Court of The Virgin Islands
• Decided: November 22, 2023
• Docket: SX-2023-CV-341
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

GOVERNMENT OF THE VIRGIN ) ISLANDS DEPARTMENT OF ) EDUCATION ) ) CIVIL CASE NO SX 2023 CV 00341 Plaintiff ) ) v ) ACTION FOR BREACH OF CONTRACT ) TEMPORARY RESTRAINING ORDER' AMERICAN FEDERATION OF ) PRELIMINARY AND PERMANENT TEACHERS LOCAL 1826 AND ALL ) INJUNCTION AND VIOLATION OF THOSE UNNAMED MEMBERS OF THE ) TITLE 24 CHAPTER 24 BARGAINING UNIT WHO ARE ) PARTICIPATING IN UNLAWFUL JOB ) 2023 VI SUPER 73U ACTIONS ) ) Defendants )

MEMORANDUM OPINION AND ORDER

1| 1 Pursuant to Plaintiff‘s (“DOE”) Motion for Temporary/Permanent Restraining Order and Memorandum of Law in Support of Temporary Restraining Order (“Injunction Motion”), filed September 25, 2023, a Temporary Restraining Order (“TRO”) was entered September 26, 2023, enjoining Defendants from striking or engaging in any type of work stoppage, requiring Defendant employees of DOE to return to work immediately The TRO set a hearing on the Injunction Motion for September 29, 2023, for the parties to show cause why the Court should not enter a permanent injunction against Defendants On September 28, 2023, Defendants filed their Motion to Dismiss 1] 2 Both Motions were heard at the September 29, 2023 hearing The parties presented evidence and argument, following which the Court ruled from the Bench, memorialized by Order dated September 29, 2023, entered October 2, 2023, denying DOE’s Injunction Motion, and denying Defendants’ Motion to Dismiss with regard to vacating the TRO, but otherwise granting the Motion to Dismiss and dismissing Plaintiff’s Complaint without prejudice The reasons for the rulings on the Motions set out in the Court 5 Order are explained below

BACKGROUND 1| 3 The evidence presented at the September 29, 2023 hearing established that before the beginning of the school day, on the morning of September 20, 2023, DOE’s Insular Superintendent Dr Ericilda Ottley Herman received texts and calls advising her that American Federation of Teachers (“AFT”) members were calling in sick or stating that they would be late for work Later that morning, Insular Superintendent Ottley Herman sent a letter to AFT President Rosa Soto Thomas demanding that she address the job action and instruct AFT members to cease and desist and return to work On September 20, 2023, as a result of the AFT members’ action, DOE approved school closures in St Croix for Pre K6, Pre K8 and John H Woodson Jr High, while GVIv AFT‘ SX 2023 CV 0034] 2023 V1 SUPER 73U Memorandum Opinion Page 2 of 7

also approving early dismissal for the two affected St Croix public high schools Insular Superintendent Ottley Herman and DOE leadership met with AFT President Soto Thomas in the afternoon of September 20, 2023 to discuss the job action asking whether AFT members would be returning to work AFT President Soto Thomas replied “no guarantees ’ The job action continued on September 21 2023 and September 22 2023 ‘4 The three separate Collective Bargaining Agreements between DOE and AFT relating to Education Professionals, Support Staff and Paraprofessionals all had an effective date of September 1, 2020 and an expiration date of August 31, 2023 By agreement, the parties extended the term of the Collective Bargaining Agreements through October 31, 2023 All three of the Collective Bargaining Agreements affecting AFT members prohibit members from striking ' LEGAL STANDARD f5 Title 24 Section 375 of the Virgin Islands Code provides the following regarding strikes (b) Employees in Class II bargaining units may strike in the same manner, with the same options and subject to the same limitations as is provided in subsection (a) of this section for employees in Class I units, Provided, however, That no strike by employees in Class 11 units is lawful after a judge of the division of the Superior Court with jurisdiction over the striking employees, after appropriate hearing, enjoins such strike, and Provided, further, That the exclusive representative shall give not less than 72 hours notice of an intent to strike to the public employer and the PERB before commencing any strike The Superior Court shall enjoin a strike under this subsection upon the request of the public employer if the Court determines any of the following (1) that lawful notice of the intent to strike was not given, or (2) that the strike has, or if pennitted to commence or continue will, seriously harm the health or safety of the public, or (3) the exclusive representative has not made a good faith attempt to reach an agreement, or (4) the strike is in violation of any provision of this chapter If a strike is enjoined, the issues in dispute shall be decided by the impasse procedure provided by section 376 of this chapter 24 V I C §375(b)

' “During the term of this Agreement, there shall be no lockout strike work stoppage or other action intended to disrupt the work of the Department Participation by employees in an act violating this Section will be cause for immediate disciplinary action ” Plaintiff’s Hearing Exhibit (“Pl Ex ") 2, Education Professionals CBA, Article I (C)(l), “During the term of this Agreement there shall be no strike or other work slowdown, stoppage or lockout Participation by Support Staff in an act violating this Section will be cause for immediate disciplinary action ” Pl Ex 2, Support Staff CBA, Article XV (1); “During the term of this Agreement, there shall be no lockout, strike, work stoppage or other action intended to disrupt the work of the Department Participation by employees in an act violating this Section will be cause for immediate disciplinary action ” Pl Ex 2, Paraprofessionals CBA, Article XIV(1) GVIv AFT' 8X 2023 CV 0034] 2023 VI SUPER 73U Memorandum Opinion Page 3 of 7

{6 Class II bargaining units are defined as “[u]nits consisting of employees who perform services in which work stoppage may be sustained for a limited period of time but not an extended period of time without serious effects on the health and safety of the public ” 24 V I C § 371(a) 2

f7 The Supreme Court of the Virgin Islands has established four factors the Superior Court must consider when deciding whether to issue a preliminary inj unction (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparany injured by denial of the relief, (3) whether granting preliminary relief will result in even greater harm to the nonmoving party, and (4) whether granting the preliminary relief will be in the public interest 3RC & Co v Boynes Trucking Sys 63 V I 544 550 (V I 2015) 3

T8 The burden is on the moving party to make some showing on all four factors “[T]he Superior Court must evaluate the moving patty’s showing on all four factors under a sliding scale standard ” Id at 557 “In conducting this sliding scale analysis, the Superior Court must make findings on each of the four factors and detennine whether when the factors are considered together and weighed against one another the moving party has made ‘a clear showing that [it] is entitled to [injunctive] relief Id (quoting Yusuj v Hamed 59 VI 841 847 (VI 2013)) In weighing the four factors, the first factor, the likelihood of success on the merits, is the most important factor See Tip Top Constr Corp v Gov to] the VI 2014 V I Supreme LEXIS 15 *2 (V I Feb 14, 2014) (“Nevertheless, ‘[t]he first of these factors is ordinarily the most important ’) (citations omitted) DISCUSSION 1i 9 DOE seeks to permanently enjoin Defendants “from continuing their illegal strike and/or work stoppage ’ Injunction Motion, at 1 At the outset, it is necessary to determine whether the actions of which DOE complains are properly characterized as a strike by AFT members A strike is defined in the context of public employee labor relations in Title 24, Chapter 14 of the Virgin Islands Code as the deliberate and concerted action of public employees to neglect to perform their duties, their willful absenting of themselves collectively from their work stations, their collective stoppage of work, or their collective abstinence in whole or in part from the full, faithful and proper performance of their duties for the purpose of inducing or influencing a change in the condition, compensation, rights, privileges, or obligations of their employment 24 V I C § 362(0)

2 Both parties agree that the individuals represented by AFT are a class II bargaining unit 3 “The factors to be considered when evaluating a temporary restraining order request are the same factors courts consider when evaluating whether to issue a preliminary injunction ” Redfield v Canegata, 2016 VI LEXIS 39 *8 n 1] (VI Super Apr 20 2016) (citations omitted) GVIv AFT sx 2023 cv 00341 2023 v1 SUPER 73v Memorandum Opinion Page 4 of 7

1| 10 At the September 29, 2023 hearing, AFT presented exhibits and members testimony concerning conditions of the schools that preceded the job action, including complaints of excessive heat, no air conditioning, and windows that could not be opened AFT members took temperature readings of over 90 degrees inside multiple classrooms over many days, such that people throughout the schools were profiJsely sweating and students rested their heads on their desks as if they have been beaten up During the work stoppage, AFT members carried placards in front of certain schools expressing their dissatisfaction with working conditions and encouraged students to protest 1[ 11 The evidence presented at the September 29, 2023 hearing, including the fact that AFT members were dissatisfied with working conditions prior to September 20, 2023, the number of AFT members not reporting to work on September 20 22, 2023 while visibly and audiny expressing their dissatisfaction, leads to the inescapable reasonable inference that AFT members engaged in a coordinated effort to neglect the performance of their employment duties for the purpose of influencing a change in the conditions of their employment As such, the Court finds that AFT members engaged in a strike as defined by 24 V I C § 362(0) during the period September 20 22 2023 1| 12 All three Collective Bargaining Agreements prohibit AFT members from striking The CBA between DOE and Education Professionals provides how DOE is to address a strike In the event of a work stoppage or other action in violation of Section 1 of this Article, the Department shall notify the Union of any such act by the most expeditious and practicable means Any such notification of violation of Paragraph 1, of this Section, properly documented, including but not limited to sending by certified or registered mail facsimile with telephone confirmation, or hand delivery with delivery confirmation to the Union’s official address shall be presumed to be received in accordance with local law Upon receipt of notification, the Union shall instruct the employees engaged in such activity to terminate such activity forthwith Pl Ex 2, Education Professionals CBA, Article I (C)(2) 1] 13 The Support Staff CBA provides In the event of a strike or other violation of Section I of this Article, the Department shall notify the Lnion of any such act by the most expeditious and practicable means Upon receipt thereof, the Lnion shall instruct the Support Staff engaged in such activity to terminate such strike or other disruption forthwith Pl Ex 2 Support Staff CBA Article XV (2) 1] 14 The Paraprofessionals CBA provides In the event of a work stoppage or other action in violation of Section 1 of this Article, the Department shall notify the Union of any such act by the most expeditious and practicable means Upon receipt of notification, the Union shall instruct the employees engaged in such activity to terminate such activity forthwith Pl Ex 2 Paraprofessionals CBA Article XIV (2) GVI v AFT SX 2023 CV 0034] 2023 VI SUPER 73U Memorandum Opinion Page 5 of 7

1] 15 As required by the CBAs DOE gave prompt notice of the strike to AFT by Insular Superintendent Ottley Herman’s September 20, 2023 letter to AFT President Soto Thomas Pl Ex 3 Notwithstanding that notice, the hearing evidence established that the job action continued on September 21, 2023 and September 22, 2023, without any effective instruction from AFT to its members to terminate the job action That initial and continued job action constituted a violation of the CBAs that was enjoined by the TRO entered September 26 2023 1] 16 The Complaint herein was filed September 25, 2023, accompanied by the Injunction Motion, dated September 22, 2023, on which date the strike appeared to be ongoing

1] 17 The Virgin Islands Code provides that the Superior Court must enjoin a strike upon the request of the public employer if it determines (1) that lawful notice of the intent to strike was not given, or (2) that the strike has, or if permitted to commence or continue will, seriously harm the health or safety of the public, or (3) the exclusive representative has not made a good faith attempt to reach an agreement, or (4) the strike is in violation of any provision of this chapter If a strike is enjoined, the issues in dispute shall be decided by the impasse procedure provided by section 376 of this chapter 24 V I C §37S(b)

1] 18 The Court issued the TRO based upon DOE’s Complaint and Injunction Motion, it appearing that no notice of an intent to strike had been given by AFT to DOE, and that if the strike were permitted to continue, there would be serious harm to the health and safety of public school students and the community, setting hearing on September 29, 2023 to determine whether a permanent injunction should enter against AFT and its members

1] 19 The movant’s probability of success on the merits is the first and most important factor in determining whether to grant a preliminary or permanent injunction See Tip Top Constr Corp , 2014 V I Supreme LEXIS 15, at *2 To show a reasonable probability of success on the merits, the movant “must introduce evidence supporting each element of his cause of action,” but does “not need to show that he will actually prevail on the merits at trial, or that his success is ‘more likely than not,’ only that he has ‘a reasonable chance, or probability, of winning ”’ Yusuf, 59 V I at 849 (citations omitted)

1] 20 Insular Superintendent Ottley Herman testified that during the week beginning Monday, September 25, 2023, no schools were closed by anyjob action of AFT members The only division affected by an employee action that week was in the special education division where three or four of the five or six bus driver employees, and paraprofessionals who rode the busses to assist the II November 22, 2023 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix

Government of the Virgin Islands Office Case Number: SX-2023-CV-00341 of Collective Bargaining, Action: Preliminary Injunction Plaintiff v.

American Federation of Teachers Local 1826 (AFT), Defendant.

NOTICE of ENTRY of Order To Zuleyma Marie Chapman, Esq. Ryan Christopher Stutzman, Esq. :

Please take notice that on November 22, 2023 a(n) Memorandum Opinion and Order dated November 22, 2023 was/were entered by the Clerk in the above-titled matter.

Dated November 22, 2023 Tamara Charles : Clerk of the Court By:

Brianna Primus Court Clerk II