) v ) ACTION FOR BREACH OF CONTRACT

) TEMPORARY RESTRAINING ORDER'

AMERICAN FEDERATION OF ) PRELIMINARY AND PERMANENTTEACHERS LOCAL 1826 AND ALL ) INJUNCTION AND VIOLATION OFTHOSE 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 Defendantemployees 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 Orderdated 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 ofthe school day, on the morning ofSeptember 20, 2023, DOE’s Insular SuperintendentDr Ericilda Ottley Herman received texts and calls advising her that American Federation ofTeachers (“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
‘

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

f

5 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 strikeby employees in Class 11 units is lawful after

a judge ofthe division of the Superior

Court with jurisdiction over the striking employees, after appropriate hearing,enjoins such strike, and Provided, further, That the exclusive representative shallgive 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 actionintended 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 termof 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)
(1) whether the movant has shown

a reasonable probability ofsuccess 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 thenonmoving 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

T

8 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 theirduties, 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)
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 ofAFT 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 membersengaged 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 deliverywith delivery confirmation to the Union’s official address shall be presumed to bereceived 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 ofthis 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 insuch 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 shallinstruct the employees engaged in such activity to terminate such activity forthwith

Pl Ex

2 Paraprofessionals CBA Article XIV (2)
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 members1] 19 The movant’s probability of success on the merits is the first and most important factor indetermining 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 AF

T members The only division

affected by an employee action that week was in the special education division where three or fourof the five or six bus driver employees, and paraprofessionals who rode the busses to assist the

November 22, 2023

II
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

District of St. Croix

Government of the Virgin Islands Office 

of Collective Bargaining,

 Plaintiff

v.

American Federation of Teachers Local 

1826 (AFT),

 Defendant. 

Case Number: SX-2023-CV-00341

Action: Preliminary Injunction

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