The Clark County teachers union has to overcome 54 years of legal precedent to succeed in its recently launched legal effort to repeal a state law that prohibits strikes by public-sector employees, said Bradley Marianno, a UNLV professor of education policy.
“CCEA is facing an uphill battle here,” he said.
The Clark County Education Association filed suit Monday against the state of Nevada and the Clark County School District, claiming that the state’s no-strike law for public employees throttles their rights to free speech and due process. The lawsuit comes after a judge determined last month in a lawsuit brought by the school district that CCEA was responsible for the first public-sector strike sincethe state outlawed them more than 50 years ago. The judge overseeing that case issued an injunction against the union banning continued work stoppages. CCEA and the School District remain embroiled in a contentious fight over a labor contract that is awaiting arbitration.
“I understand their motivation, both from a point of putting pressure on bargaining negotiations as well as trying to avoid any penalties that they might face under the injunctive relief that the court ruled on earlier,” Marianno said. “But like I said, it’s an uphill battle. And they’re not only facing the legal precedent in Nevada, but also the national precedent for prohibiting these types of strikes.”
Ruben Garcia, a professor in UNLV’s Boyd School of Law, co-director of its Workplace Law Program and a specialist in labor law, said CCEA’s arguments were analogous to the ones considered in Janus v. AFSCME, a 2018 landmark decision by the U.S. Supreme Court. In that case, the high court ruled that a public employee union in Illinois violated nonmembers’ free speech rights when it collected union fees from them.
While the CCEA case centers on striking, the ruling against compulsory union fees in Janus was successfully argued on free speech and association grounds.
“Way back in the past the (U.S.) Supreme Court has looked at these kinds of issues, and basically didn’t find a constitutional problem with them. But that was a long time ago, and also, some things have changed since then” like Janus v. AFSCME, Garcia said. “Since then, you might have the question of: is a state’s interest in protecting labor peace strong enough, compelling enough to justify a potential constitutional violation? I think that’s exactly what this case is kind of going after.”
Labor peace is essentially the absence of labor actions, such as picketing, strikes and walkouts, Garcia said.
However, CCEA argues in its lawsuit, Nevada’s anti-strike law “impermissibly impinges upon the fundamental rights of speech and association of CCEA and its members, is overbroad, void for vagueness, and is not narrowly tailored to achieve a compelling state interest.”
“Strike activity, like all work actions generally, is a form of core political speech protected by fundamental rights to free expression and association,” the suit says.
Only 13 states allow teacher strikes, Marianno said.
“It’s a 54-year-old legal precedent” in Nevada, he said. “It’s very common nationally. I don’t see CCEA prevailing in the courts on this one.”
Neither Marianno nor Garcia could recall recent court challenges of no-strike laws.
Marianno said a legislative, not judicially driven, change could be more likely. Although a court is likely to return an initial decision more quickly, he predicted a lengthy appeals process. Other school districts would join CCSD because a change in state law would negatively affect their same vested interest in prohibiting teacher strikes.
CCEA denied involvement in the rolling strike that a District Court judge declared was underway in September, when eight schools closed for a day each because of a large number of teachers calling out sick.
The union appealed the judge’s resulting injunction to the Nevada Supreme Court, which has yet to hear the case. A panel of judges did, however, deny a motion by the union to stay, or delay, the injunction.
The law that CCEA seeks to void defines “strike” broadly to include work stoppages, slowdowns, sickouts and interference with operations. Additionally, CCEA’s last contract with CCSD — which remains in effect until a new one is signed — contains a clause that the union agrees “there will be no strikes, stoppages of work or slowdown of the operations of the School District during the term of this agreement.”
Another of the five provisions of state law that CCEA wants overturned allows unions defying a no-strike order to be fined up to $50,000 per day, and officers up to $1,000 each per day, plus face decertification — “draconian” punishments, the union argues.
Decertification means losing status as an official employee bargaining representative. CCSD has filed such a complaint with Nevada’s Government Employee-Management Relations Board. That case is also pending.
That the September sickouts were, according to the Government Employee-Management Relations Board, the first recorded public-sector strike since 1969 speaks to the magnitude of the penalties in Nevada law, Marianno said.
Decertification, for example, could be “devastating” for CCEA, which is independent, unaffiliated with a national parent union.
CCEA has connected striking to free speech rights previously. Another District Court judge rejected an attempt, however, to throw out CCSD’s lawsuit that led to the injunction on free speech grounds last month.
Garcia said this latest lawsuit is separate from CCEA’s track record over the last few weeks, though.
“It’s important to remember that this is another track from all of those things,” he said.
Garcia said in place of strikes, Nevada public workers have the right to arbitration. Marianno said that in addition to arbitration, teachers, as voters, can decide whom to elect to school boards, which ratify contracts.
When employees in the private sector strike, the employer is hurt because they can no longer produce and sell goods and services, Marianno said. In the public sector, governments still can collect taxes even when their workers are on strike.
“But there’s a third party that exists there, and that’s students and parents that are harmed. So for a long time, public sector laws have said teaching is an essential service, we can’t allow these types of disruptions to parents and students,” he said. “They have a vested interest in keeping schools open… this is an essential service and we need to maintain it no matter what.”