A Clark County Education Association march and rally on Oct. 8, 2023 in downtown Las Vegas. (Photo courtesy of Jess Jones)

Earlier this month a coalition of labor unions organized more than 75,000 workers across five states to carry out the largest strike to ever hit the health care sector. More than 30,000 United Auto Workers members across 22 states, including Nevada, are currently on strike, fighting for better contracts and against “the billionaire class and corporate greed.” Culinary Union members last month authorized strikes at MGM, Caesars and Wynn properties. No strike deadline has been set, and negotiations are ongoing, but this week, the union is ramping up pressure with pickets outside eight Strip properties.

Meanwhile, the union representing the lion’s share of educators in Clark County has a question: Why shouldn’t they be able to strike too?

It is a question Clark County Education Association has flirted with in earnest this year as negotiations with Clark County School District over a new two-year contract soured. But now the union representing some 18,000 licensed teachers and personnel within the fifth largest school district in the nation is explicitly asking the Eighth Judicial District Court to find five sections of Nevada’s existing anti-strike statute unconstitutional.

It’s a bold lawsuit with the potential to monumentally shift the power dynamics between public workers and employers in Nevada, say labor attorneys who are watching the case with interest.

In their complaint, filed Monday, CCEA argues Nevada’s decades-old law prohibiting public employees from striking “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.”

The anti-strike law also “lacks specific enforcement standards, and encourages, authorizes, and fails to prevent arbitrary and discriminatory enforcement,” the filing argues.

The new legal effort comes roughly a month after District Judge Crystal Eller ruled that a series of coordinated teacher sickouts within CCSD in early September amounted to an illegal strike. Eller granted an injunction requested by the school district.

CCEA has appealed that injunction to the Nevada Supreme Court. That case is still pending.

CCEA President Marie Neisess announced the union would challenge the anti-strike statute at the conclusion of a rally Saturday in downtown Las Vegas. She told the crowd that if a court rules in their favor, the union would immediately ask members if they wanted to authorize a strike.

CCEA Executive Director John Vellardita on Thursday said any potential strike action, were it to become a legal option, would be “deliberate” and involve giving ample notice to parents, students and the community. Safe places could be established for students who need supervision while their parents work. Free meals could still be distributed to students who rely on them.

“It wouldn’t be a light switch where all of a sudden it would happen,” he added. “We would engage the school district to make arrangements for more vulnerable students because we do know schools are hubs.”

CCSD on Sept. 12 declared contract negotiations to be at an impasse, setting the dueling parties on a path toward arbitration, a process that could take upwards of a year. It will mark the fourth time in 11 years the district and the union have been forced into arbitration, says Vellardita.

Prolonged arbitration will negatively affect the morale and retention of existing teachers, as well as the ability to recruit new teachers, in the current academic year and potentially into the next. Those things have a direct impact on students.

“The law on the books that tries to find resolution over contracts is impractical,” says Vellardita. “There is no speedy resolution. … We just don’t think it’s practical anymore as a means to resolve.”

But if striking were legal?

“I think this thing would be settled in a day or two,” said Vellardita.

A brief history lesson…

The National Labor Relations Act in 1935 established the right for private sector workers to form a union and collectively bargain with their employers. The seminal legislation did not apply to public sector workers, who then spent the decades fighting for those same rights.

In many states those efforts ended in legislative compromises — public sector workers secured their right to collectively bargain by trading away their right to strike.

“The idea was trading off labor rights for labor peace,” said Melissa Lyon, an assistant professor of public policy at the University at Albany, who has researched teacher labor laws across the country. She says 35 states prohibit public employees from striking.

Nevada’s anti-strike law dates back to 1969 and the establishment of the first statewide law governing the settlement of disputes between labor and management. That year, Clark County teachers staged a two-day strike and picketed on the Strip in support of moving the base salary from $6,000 to $8,000. Legislators eventually passed legislation to make the new base $6,800.

Then-Gov. Paul Laxalt, according to legislative records, told the Legislature he had “no objection” to allowing public employees to collectively bargain but vowed to “veto any such legislation if it carries with it the right for such public employees to strike.”

Laxalt noted that “nowhere in this country” have public employees been given the right to strike, adding, “It is recognized that in the ultimate such a strike is not a strike against government or one of its agencies but against the people.”

The law the 1969 Legislature ultimately passed — then referred to as the Dodge Act after the Fallon lawmaker who championed the legislation — established the state’s broad definition of a strike:

      1.  Stoppage of work, slowdown or interruption of operations by employees of the State of Nevada or local government employees;

      2.  Absence from work by employees of the State of Nevada or local government employees upon any pretext or excuse, such as illness, which is not founded in fact; or

      3.  Interruption of the operations of the State of Nevada or any local government employer by any employee organization.

That definition hasn’t been altered in the decades since, an issue CCEA attorney Bradley Schrager raised during a hearing for the injunction. The anti-strike law, he said at the time, was written in an era when work actions were obvious and immediate — workers walked off their jobs and picketed out front.

CCEA noted in its complaint Monday that the injunction puts the union at risk for “draconian” punishments. Under state law, the union could be punished up to $50,000 per day if illegal strike activity were to continue. The union could also be decertified as the official collective bargaining unit.

No teacher sickouts resulting in school closures have happened since Judge Eller granted the injunction. The union maintains that it did not coordinate or endorse any teacher sickouts and should not be held responsible.

No contract, no peace

UNLV Law Professor Ruben Garcia, whose area of expertise is labor and employment, says the arguments put forth in the CCEA complaint regarding the constitutionality of prohibitions against strikes are “not entirely a new theory” among labor lawyers and those in the labor movement.

“There have been all sorts of theories,” he adds.

Those legal arguments have surrounded constitutional issues like the right to speech and association, the right against involuntary servitude, and the Fifth Amendment’s taking clause.

While federal courts have previously rejected some of these arguments before and upheld strike prohibitions, Garcia notes that those rulings came before Janus v. AFSCME — the 2018 U.S. Supreme Court ruling establishing that public employees cannot be compelled to pay membership dues to a union because it would be a violation of non-members’ First Amendment rights.

“This seems to be taking it to the next step,” said Garcia. “If labor peace is not a sufficient government interest there, why is it sufficient for the government to prohibit the right to strike on the grounds of labor peace?”

The issue is uncharted territory not just in Nevada but across the country, say labor attorneys and researchers. There may be a reluctance from the Nevada Supreme Court to be “out front on the issue,” added Garcia.

Sean McDonald, a union attorney practicing in Nevada, says there’s no telling how district court or the state supreme court might respond to the concept. CCEA’s recent legal losses — the injunction against it for the sickouts and the Nevada Supreme Court’s subsequent decision not to stay that injunction while an appeal plays out — aren’t a signal of hostility from the court.

“It’s procedurally a different case,” he added.

McDonald said he believes if CCEA is ultimately successful, their case would likely become a roadmap for challenges in other states: “(It would) be huge for public sector workers.”

“Ultimately, in my view, the lack of a right to strike creates a power imbalance,” he added. “The government employer will always have more power than the workers themselves.”

Solidarity?

Vellardita says he has had “no conversations” with leaders of other public sector unions about whether they might join his union’s efforts to update or upend Nevada’s anti-strike law.

The Current reached out to several other public employee unions, including Nevada State AFL-CIO, Service Employees International Union (SEIU) Local 1107, AFSCME Local 4041, and the Nevada State Education Association, and asked whether they support overturning the anti-strike law and giving public employees the right to strike.

“Although we can’t comment on CCEA’s lawsuit, the Nevada State AFL-CIO believes that all unions should have the right to strike to achieve fair wages, stronger benefits, and better working conditions,” said Carlos Hernandez, chief of staff for the Nevada State AFL-CIO, in an emailed statement.

AFL-CIO Secretary-Treasurer Susie Martinez attended CCEA’s latest rally.

A media contact for SEIU expressed the union’s general solidarity with the teachers union and noted that Executive Director Sam Shaw also attended and spoke at CCEA’s rally.

AFSCME and NSEA did not respond to the Current’s inquiry.

At least half a dozen elected officials also attended the Saturday rally, including Senate Majority Leader Nicole Cannizzaro (D-Las Vegas).

The Current reached out to the Democratic Senate and Assembly caucuses and asked whether they support overturning Nevada’s anti-strike law and giving public employees the right to strike. Neither caucus responded.

Assemblyman Reuben D’Silva (D-North Las Vegas) in an interview with the Current said the announcement of the anti-strike challenge came as a pleasant surprise to him, both as a first-term legislator and an educator who this year is celebrating 10 years of teaching history at his alma mater, Rancho High School.

D’Silva says he has long believed the anti-strike law to be “unjust” and even contemplated sponsoring a bill to overturn the law. Ultimately, he decided he should spend his first legislative session focused on bills that could make it through the Legislature and past the Republican governor’s desk.

He said he isn’t exactly sure where his Democratic colleagues stand on the issue of public employees striking, but he is hopeful there might be an appetite for such legislation in the future.

“I think there’s a natural desire to support unions and especially to help them be more effective,” he said. “It’s a problematic law.”

Vellardita says legislative action in 2025 is on the table should a court rule against the union. One clear option would be to qualify a ballot measure that would first be sent to the Legislature for consideration and then sent directly to voters if rejected by lawmakers. In 2021, the union took that path and qualified two ballot measures (to raise gaming and sales taxes) but then withdrew them after getting the immediate deal they wanted from that year’s legislative session.

When asked if the union might back away from its challenge of the strike statute as a condition of settling a favorable contract, Vellardita wouldn’t rule out the possibility.

“That would be a decision the CCEA board of directors would make,” he said.