Jan. 17, 2009 — Teachers at John H. Woodson lost a legal round Friday as Superior Court Judge Francis J. D'Eramo declined to lift the four-day-old temporary restraining order directing them to obey an Education Department directive to extend the school day 45 minutes.
The order was issued Tuesday, a day after teachers at Woodson refused to work an extended day to make up for time lost due to physical problems at the school and the effects of Hurricane Omar.
The Department of Education had announced the previous week that it would extend school hours and the school year to make up for time lost due to excessive heat in the classrooms and some days lost due to Hurricane Omar in October. The school was on a half-day schedule from October to January because of excessive heat, with temperatures in classrooms soaring over 90 degrees on some days.
Under the make-up plan, instruction would begin at 7:30 a.m. instead of 7:45, and would continue until 3:30 p.m., instead of 3 p.m. The department also decided that to make up lost time, the school year at Woodson would be extended from June 15 to June 26.
On Friday afternoon, representatives of the Department of Education and the teachers' union met in court to decide whether the temporary order should become a permanent injunction. Attorney Emile Henderson III, representing the American Federation of Teachers, filed a motion to dismiss the order, arguing that the court lacked jurisdiction because the issue should have been resolved through negotiations. Changing the hours of instruction constituted a change in the terms of the collective bargaining agreement, he said.
"The unilateral modification of the contract was substantial," Henderson said. "The government of the Virgin Islands, through the Department of Education, was trying to get what they couldn't get in negotiations. This completely and totally changes the agreement."
Arguing for the V.I. Department of Education, Assistant Attorney General Robert Molloy said the department has the right to determine the school calendar without approval by the union, and that the teachers' union had failed to provide timely notice of an intended job action, as required by law.
Molloy said the collective bargaining agreement is immaterial. The issue, he said, is whether the union and its members engaged in a work stoppage under the law. A strike or work action is only legal under specific conditions, and the teachers' union had failed to meet them, Molloy said.
Henderson argued that the teacher's actions earlier in the week had not constituted a work stoppage. The collective bargaining agreement between the union and the Department of Education specifies that teachers will provide six-and-a-half hours of instructional time each day. The teachers were on campus at the required time, he said, and provided the contractually required hours of instruction beginning at the previous regular time, 7:45 a.m., and concluding at the previous regular dismissal time of 3 p.m. The "work action" took place at a time when the teachers refused to work the additional time not called for by their contract. Since it was not a time they had previously been required to teach, the action could not constitute a stoppage, Henderson said.
Judge D'Eramo sided with Molloy and the Department of Education on the issue, rejecting the union's motion to dismiss.
The issue then turned to whether the order should be made permanent. Molloy called Jessica Gallivan, the chief negotiator for the government of the Virgin Islands, to testify on the nature of the contract, aiming to show that the department was within its rights when it changed the working hours and calendar.
Gallivan testified that the contract in place from Sept. 1, 2004, to Aug. 31, 2007, formed the basis of the new contract, which has been agreed to but not finally approved. Molloy presented a copy of the old contract as an exhibit, from which he walked Gallivan through the negotiating process and the events that led up to Monday's actions at Woodson. But Henderson protested that the document had not been included in the department's filing, as is a normal part of legal procedure. Since he had had never been given a copy, he said, he couldn't properly follow her testimony or cross examine.
At approximately 4:30 p.m. D'Eramo called a halt to the proceedings for the day to give Henderson time to review the old agreement. The hearing will resume at 1 p.m. Friday, Jan. 23, and will continue until a decision is reached, the judge said. He also extended the temporary restraining order until 11 p.m. on the day of the hearing.
After the hearing ended, Henderson said he will appeal the decision not to dismiss the order.
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