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The Clark County teachers union lost its argument Tuesday that the Clark County School District’s lawsuit should be tossed on free speech grounds.
Clark County District Court Judge Jessica Peterson ruled against the Clark County Education Association’s motion to dismiss the case based on claims that the School District’s lawsuit violated Nevada’s anti-SLAPP law — or Strategic Lawsuits Against Public Participation.
The School District it suing to stop the union from engaging in strike or strike-like actions.
Anti-SLAPP motions, the union argued in its motion seeking the dismissal, “protect the exercise of fundamental speech rights against meritless and retaliatory suits like the one in question.”
“I see this as a First Amendment case in which the union has the right to say almost anything it wants, as long as it doesn’t indicate to you that a strike is about to happen,” CCEA attorney Bradley Schrager told Peterson.
But while Peterson initially gave CCEA a favorable ruling last month when she denied CCSD’s request for an injunction that would have prevented the actions that the court later determined constituted a rolling strike — once several teachers started calling in sick this month — she did not agree with the union’s arguments Tuesday.
Peterson teased apart nuances between words and actions, and the act of speaking and the consequences of words.
“While they can go out and say, ‘we’re going to strike,’ if they say ‘we’re going to strike,’ and it is that clear and unequivocal, and they say that, then that would be evidence that the court would have been able to use to find at the first hearing that they will strike unless enjoined,” or blocked, she said. “It’s not so much that the court is attempting to enjoin the actual speech of ‘we are going to strike,’ because that’s a free speech issue. It’s whether or not that speech can be utilized to support the injunctive relief that is being requested. And I think that it can.
“I can’t enjoin somebody from going out and saying, ‘we’re going to strike,’ but I can use that as evidence to support the injunction,” she added. “And therefore, if I’m simply utilizing that as evidence to support the injunction, and I’m not enjoining them from saying those things, it’s not a SLAPP.”
CCSD sued CCEA in district court on July 31 to block a strike, citing comments made by union leaders and members that “work actions” were possible if the union did not have a new contract by Aug. 26. (It did not and still does not have a new contract, as CCSD declared an impasse in negotiations Sept. 5 after 11 bargaining sessions, sending the contract matter to arbitration.)
CCSD interpreted statements about “work actions” made in news and social media as a threat to strike to get the district to acquiesce to the union’s contract demands that include, among other provisions, 18% across-the-board raises.
State law bars strikes, and threats of strikes, by public employees, and the law defines “strike” broadly. That includes sickouts, whereby employees coordinate unwarranted sick time as a protest against working conditions but without formally striking.
The school district launched its lawsuit based on what it considered credible verbal threats of a work stoppage. On Aug. 22, Peterson denied the school district’s motion to enjoin a strike on the reasoning that she didn’t have enough information to do so. She did say at the time that she found comments made by CCEA’s executive director “concerning” and that she would entertain another school district motion for an injunction if further developments justified it. The lawsuit was not dismissed when the Aug. 22 motion was denied.
Another judge issued the injunction at a second hearing, on Sept. 13, when CCSD successfully argued that a rolling strike had started.
With an injunction now in hand concluding that a strike started Sept. 1 and needed to be stopped, CCSD lawyers said it’s now all the more apparent that no speech was chilled and that the strike had happened as telegraphed.
In a statement Tuesday, CCSD reminded that strikes by government employees, like public schoolteachers, are illegal under state law.
“To try and characterize the (d)istrict’s complaint for an injunction as anything other than an attempt to stop the commencement or continuation of a strike is disingenuous,” the statement said. “We believe the court made the correct ruling today against CCEA.”
Peterson relied on her reasoning throughout the hourlong hearing.
“To the extent that they are utilizing as potential evidence the statements that are being made, they’re not necessarily trying to enjoin that speech,” she said of CCSD. “They’re trying to enjoin the action of the strike.”
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