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.
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 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.
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.
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.
“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.”
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.
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.
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.
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.
Dear Board Members… An Open Letter To The Arkansas State Board Of Education
On January 15th, I sent a letter to the members of the Arkansas State Board of Education to bring their attention to the troubling revelations about Einstein Charter Schools that have emerged over the past several months.
Last fall, the State Board of Education approved a proposal from Einstein to open a new charter school in Little Rock after Einstein officials assured board members that they would provide transportation to students. This was the same promise they made to the Orleans Parish School Board last year as part of their charter renewal agreement. As we now know, they cannot be be taken at their word.
For some reason, I never received a response from anyone on the board. Therefore, I’ve decided to publish my original letter, which I’ve reproduced in full below.
Dear Board Members,
In September, the Arkansas State Board of Education approved a proposal from Einstein Charter Schools of New Orleans to open a new K-3 school in Little Rock School District. Today, I am writing to urge you to reconsider that decision in light of a series of troubling revelations about Einstein that have emerged here in New Orleans in the intervening months.
On September 19th, just five days after SBOE approved Einstein’s charter application, the Orleans Parish School Board issued an official notice of non-compliance [see notice here] to Einstein’s CEO and board president for failing to provide bus transportation to students as required by the terms of their charter. District officials became aware of this breach-of-contract after a parent reported that Einstein had refused to provide yellow bus service for her two children (5 and 10 years old) and instead offered them public transit tokens. News reports subsequently revealed that Einstein had been refusing to provide bus transportation to dozens of students.
Six weeks later, on November 7th, Einstein was issued another notice of non-compliance [see notice here] by the Orleans Parish School Board for enrolling 26 students outside of OneApp, the city-wide enrollment system that assigns students to New Orleans’ public schools. In fact, the notice indicates that district officials previously investigated enrollment violations at Einstein in 2016 and had told administrators that the charter network needed to implement internal systems and procedures to ensure they were in compliance with the OneApp process.
These are serious violations that undermine the systems we have established to ensure that all children – regardless of race, socio-economic background, or disability status – have fair and equal access to our public schools. Since Hurricane Katrina, all of the city’s open enrollment schools – both charter and traditional – have been required to provide free bus transportation to children in pre-K through sixth grade, no matter where they live in the city. Moreover, the Orleans Parish School Board renewed Einstein’s charter last year on the condition that school provide transportation to its students.
In 2012, district officials launched OneApp to simplify the enrollment process by allowing parents to fill out only one application in which they rank schools in order of preference. These preferences are then fed into an algorithm developed by a Nobel Prize-winning economist, which in turn, assigns students to schools. OneApp ensures that schools cannot engage in so-called “creaming” or turn away students with disabilities. All schools are required to participate in OneApp and all are prohibited from enrolling students outside of the system.
Nevertheless, Einstein’s leaders have responded to the school board’s warnings with outright defiance. As a result, the district is now seeking a court order to force Einstein to comply with the busing requirement. According to The Lens, a local non-profit news outlet, Einstein CEO Shawn Toranto responded to the OneApp non-compliance notice with a letter stating they had “simply accepted children whose parents had chosen one of its schools — a hallmark of the charter movement.” She has also taken to the pages of the New Orleans Advocate in an unconvincing attempt to deflect criticism of the school, as if the rules should not apply to them.
Finally, I want to make something very clear: I am outspoken supporter of charter schools. As a former charter school board member and teacher, I have seen the impact that high-quality charters can have on the lives of children. At the same time, I also firmly believe that charter schools are only successful when they adhere to clear operational and academic standards. Given their blatant disregard for the terms of their charter contracts in New Orleans (and the possibility that they could lose their charter if they continue to defy the district), I would once again urge you to reconsider Einstein’s expansion to Little Rock.
If you would like to read more about Einstein’s charter violations:
- Einstein Charter Schools Deemed Noncompliant For Providing Inadequate Transportation (9/21/17)
- Einstein board prepares to fight Orleans school district over its failure to bus students (9/25/17)
- Einstein Charter Schools Push Back Against Transportation Policy (10/25/17)
- Busing dispute at Einstein schools is headed to court (11/30/17)
- School district reprimands Einstein Charter Schools for enrolling students outside OneApp (1/3/18)
- Parents, protesters picket Einstein Charter Schools over lack of busing (1/9/18)
Otherwise, thank you for your time and please feel free to reach out to me with any questions you may have.
Peter C. Cook
New Orleans, LA
All About The Kids? Calcasieu Teacher Plays Politics At The Expense Of Students, Taxpayers
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 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.
Louisiana is ready for a new direction. https://t.co/eDLPMl5tEC
— Educate Louisiana (@edlouisiana) April 12, 2017
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.
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…
- Although he called out sick on February 23rd, he noted in a blog post that he actually went to Baton Rouge to attend the final meeting of the Governor’s ESSA Advisory Council;
- He took sick leave on March 29th, but again mentioned on his blog that he was in Baton Rouge at a BESE meeting;
- The same goes for May 18th (he also missed May 17th), when he was “sick” in Baton Rouge to introduce House Bill 536 with State Rep. Vincent Pierre, as he wrote in a blog post ironically titled, “HB-536: Who really puts children first?”
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.
— LAE (@LAEducators) November 16, 2016
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.
— Educate Louisiana (@edlouisiana) November 17, 2016
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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