weather icon Clear

‘A strike has occurred’: Judge issues injunction to end ‘rolling sickouts’

Updated September 13, 2023 - 7:26 pm

A judge granted a preliminary injunction Wednesday against the teachers union to end rolling sickouts.

“The court finds that a strike has occurred,” District Judge Crystal Eller said.

The finding is mostly based on circumstantial evidence — an overwhelming amount of evidence that can’t be ignored, she said during a hearing at the Regional Justice Center.

Unexpected staffing shortages have led to eight Clark County School District campus closures — each lasting one day — since Sept. 1. It also disrupted operations at a couple others.

The Clark County Education Association, which represents about 18,000 licensed employees, said the situation with school staffing wasn’t part of union actions.

Following the hearing, the school district said in a statement: “Thankfully, the court found that a strike has occurred” and imposed a preliminary injunction to “prevent any ongoing disruptions to the school district’s operations.”

“This action protects the children of the Clark County School District so they can receive the education they are entitled to,” the district wrote.

It’s not immediately known when the injunction will be drafted or signed.

Union officials declined to comment outside the courtroom, but said they would arrange interviews for Thursday.

In a Wednesday email to educators, CCEA wrote that it “respectfully, and strongly, disagrees with the court’s decision” and will appeal the ruling to the Nevada Supreme Court “expeditiously.”

“CCEA has not encouraged, engaged in or coordinated any concerted sick-outs in the past and will not do so in the future,” the union wrote.

The message includes a reminder that strikes by public school teachers aren’t allowed under state law and “should not be undertaken.”

The union also wrote it’s notifying all district educators that the court has indicated that individual educators who “engage in continued and concerted sick-outs” or “other strike activities” may be found in violation of the injunction.

Educators could face penalties, including termination of employment, and “CCEA and its officers may be held in violation, as well,” the message says.

“Today’s court ruling will not deter CCEA members in our fight for the contract we deserve,” the union wrote.

Emergency motion filed Monday

On Monday, the district filed an emergency motion for a temporary restraining order and preliminary injunction to “stop the continuance of a strike” by educators represented by the union.

The motion was made in a case the district filed in late July seeking a court order to prevent a future teacher strike. The union filed a motion to dismiss.

Last month, District Judge Jessica Peterson denied the injunction request because she said there wasn’t enough evidence to show a strike would happen.

But she said she was concerned by some statements made by CCEA Executive Director John Vellardita and that she could reconvene court quickly if the situation changed.

It’s illegal for public employees in Nevada, including teachers, to strike.

State law has a definition of a strike, which includes an “absence from work” by employees under any excuse such as illness “which is not founded in fact” and a “stoppage of work, slowdown or interruption of operations.”

The punishment for a strike is up to $50,000 each day for a union and up to $1,000 each day for union officers.

The decision to issue an injunction comes shortly after the district declared an impasse Tuesday in collective bargaining with the union after 11 negotiation sessions since late March.

The district said in its statement Wednesday that with the impasse, “the arbitration process will proceed according to Nevada law.”

“In the meantime, educators will continue under the current negotiated contract and be compensated accordingly until a new agreement is reached,” the district said.

Judge’s remarks

Eller said in court Wednesday that she watched a recording of the hearing last month on the injunction request and consulted with Peterson.

Eight campuses had to be closed in a period of seven school days, District Judge Eller said. And she pointed to the four closures Tuesday, which were spread out in the four corners of the valley.

The idea that the callouts were actually because of someone being sick is “preposterous,” she said.

It’s more likely an indicator that it’s a concerted effort to do exactly what has been threatened by Vellardita and others in public comments, Eller said.

She said she needs everyone to understand how serious the situation is, also saying she’s “extremely sympathetic” to how difficult it is.

People want to see that students have good teachers and that educators are fully compensated, Eller said.

But more than 50 years ago, the state decided that because of the public service that teachers perform, they can’t be allowed to strike, she said.

“You guys are out on the front lines,” Eller said, adding that too many people are counting on them and families need to go to work in order to be able to feed their children.

“The way you address your concerns is at the bargaining table,” she said.

Arguments in court

CCEA Executive Director John Vellardita and President Marie Neisess were among those attending the hearing.

At the beginning, attorney Bradley Schrager — who represents the union — said he intended to have Vellardita testify.

But later, the attorney asked for a three-minute recess and left the courtroom with Vellardita. When they returned, Schrager said they would decline to have Vellardita testify.

During arguments, attorney Ethan Thomas — who represents the district — said that without an injunction, it would create a status quo that allows the union to hide its activities and for teachers to keep calling in sick.

“This strike will keep going, he said. “It will continue to escalate.”

The union clearly helped members effectuate a strike “and they must be stopped,” Thomas said.

Contrary to the arguments CCEA made in its opposition to the motion, “there is ample evidence to support that a strike has occurred and that an injunction request is necessary in this case,” he said.

Addressing the union’s argument about absences amid the cold and flu season and the spread of COVID-19, Thomas said: “Quite frankly, that creates a mockery of common sense here…”

“There’s no question that these sickouts have been coordinated,” he said.

Schrager argued there’s no evidence of involvement by the teachers union or the defendants in the lawsuit. Without that, he said, an injunction cannot be issued.

There are four defendants in the case — the union, Vellardita, Neisess and Vice President Jim Frazee.

Evidence is lacking to show that defendants are responsible for coordinating teachers calling in sick, Schrager said. “That’s the linkage that has to be shown.”

Schrager told the judge there’s no evidence of specific conduct by the defendants that she could order them to stop doing.

He also said a judge must state the reasons for issuing an injunction and the terms. “That’s really difficult in this circumstance, I think.”

Court filings on Tuesday

On Tuesday, the district filed court documents saying it has evidence that the school closure that day at Southwest Career and Technical Academy was coordinated.

Administrators at Southwest Career and Technical Academy and district Deputy Superintendent Brenda Larsen-Mitchell received separate emails from a whistleblower saying that a specific teacher at the school had “become the leader of SWCTA’s strike efforts,” according to court documents.

The teacher mobilized colleagues to take the day off Tuesday and this upcoming Friday “to disrupt instruction,” the district said.

The teacher, a union member, used private email addresses to help coordinate the sickout and avoid suspicion, according to court documents.

Emails from the whistleblower and teacher were included as exhibits.

Also on Tuesday, the union filed its opposition to the district’s emergency motion.

The union alleged the district has “no evidence whatsoever” that any of the defendants “have had anything whatsoever to do with any teachers in the district calling out sick or otherwise absent.”

The union pointed to the three-day Labor Day weekend, the start of cold and flu season, and the circulation of COVID-19.

The district has identified 165 teacher absences — less than 1 percent of licensed teaching positions, the union said.

About 70 percent of the district’s approximately 18,000 teachers are union members, the union said. Only 58 percent of those absent on days identified were CCEA members.

Contact Julie Wootton-Greener at jgreener@reviewjournal.com or 702-387-2921. Follow @julieswootton on X.

Don't miss the big stories. Like us on Facebook.