In a new unfair labor practice complaint, DC Public Schools accuses the Washington Teachers’ Union of going on strike, which is illegal in D.C. It’s the latest escalation between the Bowser administration and the union as the two try to reach an agreement to safely reopen schools. 

Over the course of the pandemic, WTU has filed two unfair labor practice complaints against DCPS with the Public Employee Relations Board, the quasi-judicial agency that resolves labor issues in D.C., receiving affirmative decisions in both. The teachers’ union, along with the principals’ and nurses’ unions, has repeatedly accused the central office of excluding them from reopening talks. The latest unfair labor practice complaint, received Nov. 2, appears to be school officials’ first during the pandemic.    

In the complaint, DCPS says the union’s email to teachers reminding them that they are entitled to take a “Mental Health Day” on Nov. 2 constitutes a strike. The complaint says the “sickout” resulted in 39 percent of bargaining unit members taking sick leave. 

That same day, DCPS announced that it would not move forward with its plans to reopen schools to elementary students on Nov. 9 due to workforce issues. Many credited the union’s organizing for delaying a return to school buildings until workers felt safe. (The mayor’s chief of staff even blamed the union.) A PERB decision that says DCPS failed to always negotiate in good faith meant school officials were not allowed to use survey results of teachers to make staffing decisions.   

Now, DCPS is asking PERB to conclude that WTU failed to bargain in good faith because of the sickout. It also asks PERB to send a notice to teachers stating employees violated D.C. law, and requesting they not strike again. The DCPS and WTU contract includes a specific article prohibiting strikes, otherwise known as a no-strike clause. If a strike is to take place, the contract says, WTU needs to declare the activity illegal and order teachers to stop. It is illegal for any District government employee or labor organization to strike in D.C. 

WTU president Elizabeth Davis says the union has yet to formally respond to the complaint, but plans to by the filing deadline. “They are calling a sickout,” Davis tells City Paper. “We don’t believe that it was.” The question now is whether PERB does. 

Shaun Richman, who spent more than a decade as a union organizer and representative, including with the American Federation of Teachers, of which WTU is an affiliate, says the employer is likely to prevail because no-strike clauses are “lock tight” and comprehensive. (According to the complaint, the DCPS and WTU contract says “[d]uring the life of this Agreement, the WTU shall not cause, support, encourage or authorize any Teacher to participate in any cessation of work through slowdown, strike, work stoppage or other similar activity.”)

Generally speaking, no-strike clauses are common in collective bargaining agreements. “You basically have to sign one of these,” Richman tells City Paper. “Even if you don’t … there are court decisions that say if there is a grievance procedure with an arbitration clause, we are just going to assume that there is an implicit no-strike agreement.”

“These no-strike clauses are murdering the labor movement,” he continues. “Without the right to go on strike, what you wound up having is union leaders who have to cozy up to political power to get their contract settled.” (Richman has written about this to some effect in the Post before.)

In Richman’s view, the relief DCPS requests amounts to a slap on the wrist. “I think it is just that the District needs to prove the point, don’t do that again.”     
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