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