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NLRB Doesn’t Think Charters Are Public Schools Why IHSNO and Lusher Are Challenging The Board's Position

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Last week, The Lens reported that lawyers for International High School of New Orleans (IHSNO) are challenging the National Labor Relations Board’s (NLRB) claim of jurisdiction over their school. In May, NLRB held an election at IHSNO in which a majority (26-18) of teachers voted to form a union with the United Teachers of New Orleans (UTNO).

It was the second union election NLRB held at a New Orleans charter school in as many weeks. On May 17th, teachers at Lusher Charter School voted down an attempt by UTNO to form a union, although a small group of paraprofessionals did back the union in a separate vote. Like IHSNO, Lusher is also challenging NLRB jurisdiction.

I’ve attempted to untangle some of the confusing issues involved in the question of whether NLRB has jurisdiction over charter schools below…

I. What is the National Labor Relations Board and what authority does it have?

NLRB was established by the National Labor Relations Act of 1935 (also known as the Wagner Act, after its author, Senator Robert Wagner of New York) which was signed into law by President Franklin Delano Roosevelt in an attempt to quell a surge of union-related violence and strikes that broke out as a result of the Great Depression.

President Roosevelt signs the National Labor Relations Act on on July 5, 1935.

President Roosevelt signs the National Labor Relations Act on on July 5, 1935.

NLRB is governed by a five-person board, all of whom are appointed by the President. The agency has 32 regional offices across the country; New Orleans is located in Region 15, which covers Louisiana, Arkansas, Mississippi, and parts of Missouri, Tennessee, Alabama, and Florida.

NLRB Region 15

NLRB Region 15

NLRB has two main responsibilities: it conducts fair elections for employees seeking labor union representation and it investigates and remedies unfair labor practices. However, the National Labor Relations Act expressly limits NLRB’s jurisdiction to private sector employees; it does not extend to employees of the “United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof.”

II. How did NLRB get involved in the union efforts at IHSNO and Lusher?

UTNO supporters initially brought organizing petitions to the boards of directors at IHSNO and Lusher (which they claimed were signed by a majority of teachers at each school) and asked board members to recognize their unions. Both boards ultimately voted against voluntary recognition.

As a result, UTNO filed petitions with NLRB requesting that the agency conduct representation elections at both schools.

III. If IHSNO and Lusher are public schools, why is NLRB claiming it has jurisdiction?

It all comes down to the fact that IHSNO and Lusher are charters, as opposed to traditional public schools.

NLRB Regional Director Kathleen McKinney

NLRB Regional Director Kathleen McKinney

At their initial hearings before NLRB regional director Kathleen McKinney, IHSNO and Lusher argued that NLRB lacks jurisdiction to intervene because they are by law public schools, and therefore, their teachers are public employees.

UTNO, on the other hand, contended that charter schools are not political subdivisions of the state, but are more akin to private contractors hired by the government since they are operated by non-profit organizations.

In both hearings, McKinney agreed with UTNO’s argument and subsequently scheduled representation elections at IHSNO and Lusher.

IV. Have teachers unions sought NLRB jurisdiction over charter schools in other states?

Yes, although it has depended on the labor laws of the state in which the charter school resides.

Teachers unions have generally sought NLRB jurisdiction in “right-to-work” states like Louisiana. However, in states with union-friendly laws covering public employees, unions have instead argued that charter schools are public schools and have sought to organize their teachers as public employees.

Graphic from vox.com.

Graphic from Vox.com

For example, the United Teachers of Los Angeles (UTLA) – which, like UTNO, is an affiliate of the American Federation of Teachers (AFT) – recently filed several unfair labor practices complaints against the Alliance of College Ready Charter Schools, a charter school network which the union has been trying to organize over the past year. UTLA filed those complaints with the California Public Employees Relations Board, rather than the National Labor Relations Board.

In fact, AFT president Randi Weingarten admitted in a recent interview with Bloomberg that AFT essentially shops around to see who claims jurisdiction on a state-by-state basis:

“What has happened is that we’ve decided that when teachers really want a voice, to just organize under whatever law is operational…Every day that teachers’ voices are stymied is a day that the anti-union forces win. So that’s why instead of just waiting for the courts to make this decision, we have tried to organize under whatever entity claims jurisdiction.”

Are charters public schools? For AFT, it's "whatever works."

Are charters public schools? For AFT, it’s “whatever works.”

V. Does it matter whether or not NLRB has jurisdiction?

Yes. NLRB can compel private corporations to engage in negotiations with a union backed by a simple majority of employees.

On the other hand, while Louisiana law does not explicitly prohibit collective bargaining or strikes by public employees, school boards are not required to recognize teachers unions and are not obligated to engage in collective bargaining. The only way a union can compel a school board in Louisiana to engage in collective bargaining is by striking.

A Times-Picayune comic published in the midst of the Jefferson Federation of Teachers' 39-day strike in 1979.

A Times-Picayune comic published in the midst of the Jefferson Federation of Teachers’ 39-day strike in 1979.

VI. What happens if IHSNO and Lusher win their appeals?

If IHSNO and Lusher are successful in challenging NLRB’s jurisdiction, they would not have to negotiate with UTNO and could continue to operate as they have been up to now. The only option left for union members would be to strike, which is highly unlikely.

VII. What happens if IHSNO and Lusher lose their appeals?

In the event that IHSNO and Lusher’s appeals are unsuccessful, they would have two options:

  • Extend recognition to the unions and enter into good faith negotiations. (Note: Entering into good faith negotiations doesn’t automatically mean the union will secure a contract with the school. For example, the UTNO-affiliated union at Morris Jeff Community School has been in negotiations with the board for over a year and still does not have a contract.)
  • Refuse to recognize the union, in which case, UTNO would likely file an unfair labor practices complaint and the jurisdiction issue would eventually be heard by the 5th Circuit Court of Appeals.
A chart showing Appellate Court decisions of NLRB rulings between 1975 and 2015.

A chart showing Appellate Court decisions of NLRB rulings between 1975 and 2015.

VIII. Is there any benefit in IHSNO and Lusher taking their cases all the way to the Court of Appeals?

Yes, because the 5th Circuit is widely considered to be the most conservative appeals court in the nation, making it less likely that the judges would be receptive to the arguments of the United Teachers of New Orleans. A favorable ruling in court, which exempted charter schools from NLRB jurisdiction, would mean that charter boards could refuse to recognize or negotiate with teachers unions, stymieing UTNO’s efforts to organize the city’s schools.

The 5th Circuit Court of Appeals in New Orleans is considered the most conservative appeals court in the nation.

The 5th Circuit Court of Appeals in New Orleans is considered the most conservative appeals court in the nation.


Bonus: Check Out This Story On Fold

Fold is an innovative publishing platform created by MIT Media Lab which allows readers to explore topics in-depth through the use of interactive media cards. I thought I might test it out with this story. An embed of the story is below, but if you click on the link you can see it on the Fold website.

Pete became involved in education reform as a 2002 Teach For America corps member in New Orleans Public Schools and has worked in various capacities at Teach For America, KIPP, TNTP, and the Recovery School District. As a consultant, he developed teacher evaluation systems and served as a strategic advisor to school district leaders in Cleveland, Nashville, Chattanooga, and Jefferson Parish, Louisiana. He now writes about education policy and politics and lives in New Orleans.

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Charters

All About The Kids? Calcasieu Teacher Plays Politics At The Expense Of Students, Taxpayers

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For more than a year, Calcasieu Parish special education teacher Ganey Arsement has been on a self-appointed crusade against education reform in Louisiana. He has blasted charters, standardized testing, Common Core, teacher evaluation, and yours truly on his blog, as well as on social media. He has worked to coordinate his attacks with the state’s teachers unions, particularly the Louisiana Association of Educators, and has sought to ingratiate himself with anti-reform politicians like Gov. John Bel Edwards and former State Rep. Brett Geymann.

Arsement with Gov. John Bel Edwards and former State Rep. Brett Geymann.

Arsement has also become an increasingly visible presence in Baton Rouge, where he has spent untold hours attending meetings of the Board of Elementary and Secondary Education (BESE) and lobbying in the hallways of the State Capitol. In recent months, Arsement has turned his guns on State Superintendent of Education John White – the bête noire of Louisiana’s reform opponents – whom he wants replaced. After failing to convince legislators that the law required them to reconfirm White (who has been on a month-to-month contract since the beginning of 2016), Arsement filed a petition in state court late last month that seeks to remove him from office.

Through it all, Arsement has portrayed himself as a selfless defender of public education who is fighting the nefarious schemes of greedy “corporate” reformers. However, a closer examination reveals that his political adventures have instead come at the expense of students and taxpayers.

Unethical and possibly worse

Official attendance records provided to me by Calcasieu Parish Schools Superintendent Karl Bruchhaus show that Arsement missed 16.5 days of work – more than three weeks of school – over the course of the 2016-17 school year.

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Screen-Shot-2017-06-10-at-02.52.38
Arsement's absences and Calcasieu Parish School Board holidays.

According to Bruchhaus, all but one of these days (May 9, 2017) were recorded as sick leave. State law permits teachers to take two days of personal leave per year without loss of pay. The law also allows teachers to take ten days of sick leave per year due to illness or other emergencies without loss of pay. Unused sick leave can be carried over from one year to the next.

In Arsement’s case, it is clear that he took paid sick leave on many days when he was actually playing politics in Baton Rouge. Moreover, you don’t have to take my word for it, as he admits as much several times on his blog. Here are just a few examples…

What this means is that Arsement was off doing political advocacy while his special needs students were left with a substitute (who also had to be paid) and taxpayers foot the bill. I would venture to guess that most people would find that unacceptable, especially the parents of his students.

Missing absences?

If that’s not bad enough, I’ve also identified at least one day – and possibly two days – where his attendance record says he was working, but he was actually in Baton Rouge.

Several sources have confirmed that Arsement was at the Capitol during school hours on May 2nd. Nevertheless, his attendance record does not mark him absent on that date. Why that absence is missing is unclear, but since teachers verify their timesheets, the error should have been corrected.

The second day in question is May 8th when, by his own admission, he proudly delivered a petition calling for the removal of John White to the office of Senate President John Alario. Although he does not indicate when he made that delivery, one assumes he didn’t hop in his car immediately when school ended at 3:10pm to drive two hours to Baton Rouge to drop it off. In any case, Arsement is not marked absent on May 8th, either.

Exactly why reform is needed

When Arsement claims education reform supporters “demonize” teachers, what he means is that they actually expect teachers to do the work they’re paid to do. While this may seem draconian to someone who can apparently skip entire days of work and get away with it, this is not a radical concept to most of us. When taxpayers hand over their hard-earned money to pay for public education, they expect teachers to teach. When parents send their children off to school, they expect their kids will actually spend the day learning. When Arsement instead takes a bunch of sick days to lobby lawmakers for lower standards and less accountability, he’s breaking that social contract and possibly the law. Worst of all, he’s doing a tremendous disservice to the young people in his classroom – kids who need the most help.

In his effort to rollback Louisiana’s education reform policies, Arsement has inadvertently provided a real-life illustration of why they are so desperately needed. For that at least, I thank him.

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Charters

PSA: NAACP Charter School Hearing Tonight Don't Let Critics Distort The Story In New Orleans

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Tonight, the NAACP will be holding a hearing on charter schools at the New Orleans City Council Chambers (1300 Perdido Street) starting at 5:30pm. It will be the sixth hearing that the NAACP has held in cities across the country following their inexplicable call for a moratorium on charter schools last fall.

Flyer for tonight’s NAACP hearing.

The NAACP’s call for a moratorium has been roundly criticized by education reform advocates, as well as by the editorial board of The New York Times, which called the move “a misguided attack” by an organization that “has struggled in recent years to win over younger African-Americans, who often see the group as out of touch.” The Washington Post was even more scathing in their take on the moratorium, linking the NAACP’s recent turn against charters to the substantial financial support the group has received from the American Federation of Teachers and National Education Association.

Angry charter school parents from Memphis confronted NAACP officials at their national meeting in Cincinnati last fall.

In any case, NAACP officials have apparently decided to dispense with any pretense of objectivity at tonight’s meeting by inviting a number of outspoken charter opponents to speak, including:

  • Bill Quigley, a law professor at Loyola who filed a specious civil rights complaint against a local charter network that was eventually dismissed by the Louisiana Department of Education for lack of evidence;
     
  • Walter Umrani, an anti-charter candidate for the District 4 seat on the Orleans Parish School Board who received only 13% of the vote;
     
  • Willie Zanders, the lead attorney in the class action lawsuit against the Orleans Parish School Board and State of Louisiana over the layoffs of school board employees following Hurricane Katrina that was dismissed by the Louisiana Supreme Court;
     
  • Adrienne Dixson, a former education professor from Illinois who recently compared the education landscape in New Orleans to “The Hunger Games”;


  • State Rep. Joe Bouie who has used his position on the House Education Committee to spread misinformation about charter schools and engage in obstructionism, as seen below.

Charter school supporters need to attend tonight’s NAACP hearing to ensure that the truth is heard and that the positive impact that charters have had on the children of this city is not denied.

I hope to see you there!

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