Lusher NLRB Jurisdiction Appeal Brief

7/26/2019 Lusher NLRB Jurisdiction Appeal Brief

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UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

ADVOCATES FOR ARTS BASED

EDUCATION CORPORATION D/B/ALUSHER CHARTER SCHOOL,

*

**

*

Petitioner Employer, *

* Case No.: 15-RC-174745

v. *

*

UNITED TEACHERS OF NEW

ORLEANS, LOCAL 527, LFT, AFT,

*

*

*

Respondent Union. *

*

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

EMPLOYERS REQUEST FOR REVIEW

MCGLINCHEY STAFFORD,PLLC

Magdalen B. Bickford (La. Bar Roll No. 17472)

Angelina Christina (La. Bar Roll No. 28530)Camille R. Bryant (La. Bar Roll No. 35063)

601 Poydras Street, 12th

Floor

New Orleans, Louisiana 70130Telephone: (504) 586-1200

Facsimile: (504) 596-2800

Email: [email protected]@mcglinchey.com

[email protected]

Attorneys for Advocates for Arts-based Education

Corporation d/b/a Lusher Charter School,Employer


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SUBJECT INDEX

TABLE OF AUTHORITIES....................................................................................................... 3

PROCEDURAL HISTORY......................................................................................................... 7

GENERAL BACKGROUND OF LOUISIANA CHARTER SCHOOLS............................... 8

FACTS INTRODUCED DURING THE REPRESENTATION HEARING........................ 10

A. ESTABLISHMENT OF LUSHER CHARTER SCHOOL............................................................... 10

B. OPSBHAS CONTROLLING AUTHORITY OVER LUSHER CHARTER SCHOOL. ........................ 10

C. EMPLOYER OPERATES WITH DIRECT OVERSIGHT FROM OPSB. ......................................... 11

D. OPSBSETS FORTH SPECIFIC REQUIREMENTS FOR CHARTER SCHOOL

GOVERNING BOARDS. ................................................................................................................ 13

ARGUMENT............................................................................................................................... 14

A. JURISDICTION IS IMPROPER BECAUSE EMPLOYER QUALIFIES AS A

POLITICAL SUBDIVISION OF THE STATE PURSUANT TO THE FIRST PRONG

OF THEHAWKINSTEST. ....................................................................................................... 15

B. EMPLOYER IS ALSO EXEMPT FROM THE BOARDS JURISDICTION AS A

JOINT-EMPLOYER WITH THE OPSB. ................................................................................... 17

C. ALTERNATIVELY,THE BOARD SHOULD EXERCISE ITS DISCRETION AND

DECLINE TO ASSERT ITS JURISDICTION IN THIS MATTER BECAUSE THE

STATE OF LOUISIANA HAS SPECIFICALLY CALLED FOR THE CREATION OF

CHARTER SCHOOLS AS AN INTEGRAL PART OF ITS OVERALL PUBLIC

EDUCATION SYSTEM. .......................................................................................................... 19

CONCLUSION........................................................................................................................... 23

CERTIFICATE OF SERVICE................................................................................................. 24


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TABLE OF AUTHORITIES

Cases

Browning-Ferris Industries of California Inc., d/b/a BFI Newby Island Recyclery and FPR-II,

LLC, d/b/a Leadpoint Business Services, and Sanitary Truck Drivers and Helpers Local 350,International Brotherhood of Teamsters, 362 NLRB 186 (2015)...................................... 16, 17

Chicago Mathematics & Science Academy Charter School, Inc., Employer and Chicago Alliance

of Charter Teachers & Staff, IFT, AFT, AFL-CIO,359 NLRB 41 (2012) ................................................................................................................ 13

Fire Prot. Co.,216 N.L.R.B. 584 (1975) .......................................................................................................... 18

Greater Omaha Packing Co. v. N.L.R.B.,

790 F.3d 816 (8th Cir. 2015) .................................................................................................... 14

Hialeah Race Court, Inc.,

125 NLRB 388 (1959) .............................................................................................................. 20

Hinds Cnty. Human Resource Agency,

331 NLRB 1404 (2000) .............................................................................................................. 6

Jefferson Downs, Inc.

125 NLRB 386 (1959) .............................................................................................................. 20

La. Teachers Assoc. v. OPSB,303 So. 2d 564 (La. App. 4th Cir. 1974) .................................................................................. 21

Los Angeles Turf Club,90 NLRB 20 (1950) .................................................................................................................. 20

Museum Assoc. v. N.L.R.B.,

688 F.2d 1278 (9th Cir. 1982) .................................................................................................. 18

N.L.R.B. v. Austin Dev. Cnt., Inc.,

606 F.2d 785 (7th Cir. 1979) .................................................................................................... 20

New Orleans v. Bd. of Supervisors of La. State Univ.,

206 La. 913, 20 So. 2d 264 (1944) ........................................................................................... 15

NLRB v. Chicago Youth Ctr.,

616 F. 2d 1028 (7th Cir. 1980) ................................................................................................. 16


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NLRB v. Denver Bldg. Trades Council,

341 U.S. 675 (1951) .................................................................................................................. 19

NLRB v. Natural Gas Util. Dist. of Hawkins Cnty.,

402 U.S. 600 (1971) .................................................................................................. 6, 13, 14, 16

NLRB v. Noel Canning,

134 S.Ct. 2550 (2014) ............................................................................................................... 14

NLRB v. Teamsters Local364,

F.2d 19, 23 (7th Cir. 1960) ....................................................................................................... 19

Nw. Univ. and College Athletes Players Assn,

362 NLRB 167 (2015) .............................................................................................................. 19

Sonotone Corporation,

90 NLRB 178 (1950) .................................................................................................................. 7

Temple University,194 NLRB 1160 (1972) ............................................................................................................ 19

Statutes

26 U.S.C. 414 ............................................................................................................................. 21

29 U.S.C. 164 ............................................................................................................................. 19

La. Rev. Stat. 17:3972............................................................................................................ 7, 14

La. Rev. Stat. 17:3973............................................................................................................ 7, 15

La. Rev. Stat. 17:3991................................................................................................................ 14

La. Rev. Stat. 17:3995................................................................................................................ 10

Louisiana Revised Statute 23:822 .............................................................................................. 21

Other Authorities

1997 La. Sess. Law Serv. Act 477 (H.B. 2065) .............................................................................. 7

Executive Order KBB 05-79 ..................................................................................................... 8, 15

https://www.nlrb.gov/cases-decisions/information-decisions-issued-january-4-2012-board-member-appointees. .................................................................................................................. 13

La. Atty. Gen. Op. No. 11-0257 ................................................................................................... 21


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Regulations

29 C.F.R. 103.3 .......................................................................................................................... 20

38 Fed. Reg. 9537 (April 1973) .................................................................................................... 20

Constitutional Provisions

La. Const. art. 8 3 ......................................................................................................................... 8

La. Const. art. VII 1 ..................................................................................................................... 8

La. Const. art. X 29 .................................................................................................................... 21


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UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

ADVOCATES FOR ARTS BASED

EDUCATION CORPORATION D/B/ALUSHER CHARTER SCHOOL,

*

**

*

Petitioner Employer, *

* Case No.: 15-RC-174745

v. *

*

UNITED TEACHERS OF NEW

ORLEANS, LOCAL 527, LFT, AFT,

*

*

*

Respondent Union. *

*

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

EMPLOYERS REQUEST FOR REVIEW

Advocates for Arts-Based Education Corporation d/b/a Lusher Charter School

(Employer) respectfully submits this Request for Review, pursuant to Section 102.67(b) of the

National Labor Relations Act (the Act), of Region 15s acting Regional Directors May 10,

2016 Decision and Direction of Election (the Decision) because the acting Regional Director

incorrectly found that the National Labor Relations Board (the NLRB or Board) has

jurisdiction because Employer is not a political subdivision of the state within the meaning of

Section 2(2) of the Act. Under Section 102.67(c) of the Act, the Board should review that

decision for the following non-exclusive, compelling reasons: (1) there is an absence of reported

Board precedent concerning the substantial question of whether charter schools are political

subdivisions of the State under the Act; and (2) the Regional Directors incorrect ruling is

prejudicial to the Employer.


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The Board does not have jurisdiction over Employer because Employer is a political

subdivision of the state. The determination of whether an entity is a political subdivision of a

state within the meaning of Section 2(2) of the Act requires a close examination of all relevant

facts, including actual operations. See NLRB v. Natural Gas Util. Dist. of Hawkins Cnty. , 402

U.S. 600, 604 (1971). Moreover, a states characterization of an entity [is] an important factor

in determining the more specific issue of whether [it] was created so as to constitute a

department or administrative arm of the government, because it is state law that provides the

necessary information for the Board to use in its application of federal law.Hinds Cnty. Human

Resource Agency, 331 NLRB 1404 (2000). The Acting Regional Director did not adequately

review this matter in light of existing Louisiana law and policy, and improperly relied solely on

the Boards now-questioned Order in Chicago Mathematics in rendering the Decision.

Therefore, Employer suggests that the Board should grant its Request for Review to address this

previously undetermined and important issue that has far-reaching impact on the New Orleans

public school system.

In the alternative, and should the Board find that Employer is subject to the Boards

jurisdiction, Employer respectfully suggests that the Board should decline to exercise its

jurisdiction because the State of Louisiana has specifically called for the creation of charter

schools as an integral part of its overall public education system.

PROCEDURAL HISTORY

On April 25, 2016, the United Teachers of New Orleans, Local 527, Louisiana Federation

of Teachers (LFT), and the American Federation of Teachers (AFT) (collectively

Respondent or Union) filed a petition with the NLRB seeking to represent certain employees

of Employer, a longstanding New Orleans public school that was converted to a kindergarten

through 12th

grade public charter school in 2005. In response to the Petition for Recognition filed


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by the Union, on May 3, 2016, a Representation Hearing was conducted before a Region 15

hearing officer, in which the Employer questioned whether it was exempt from the Boards

jurisdiction under Section 2(2) of the Act. On May 10, 2016, the acting Regional Director issued

a decision finding that Employer was subject to the Boards jurisdiction because it was not a

political subdivision of the State of Louisiana.

The Regional Director ordered that an election be held on May 17, 2016. Pursuant to

Sonotone Corporation, 90 NLRB 178 (1950), Two separate groups of employees participated in

the election teaching professionals or Group A; and para-professionals, or Group B. The

employees voted to remain as two separate groups. Group A voted 77 to 54 (with 1 challenged

ballot) against union representation. Group B voted 8 to 5 (with 3 challenged ballots) in favor of

union representation.

GENERAL BACKGROUND OF LOUISIANA CHARTER SCHOOLS

Louisiana law defines a charter school as an independentpublic schoolthat provides a

program of elementary or secondary education, or both, established pursuant to and in

accordance with the provisions of the [Louisiana Charter Schools Law] to provide a learning

environment that will improve pupil achievement. La. Rev. Stat. 17:3973(2)(a)(emphasis

added). Under the overarching consideration of doing what is best for at-risk pupils, the

Louisiana Legislatures intent in creating charter schools was to provide a framework for

experimentation and innovation by city and parish school boards, and a mechanism to evaluate

the success of such innovation. SeeLa. Rev. Stat. 17:3972.

Louisianas Charter Schools Law was originally enacted by the state legislature in 1995

as a pilot program allowing up to eight school districts to participate. The law was substantially

revised in 1997 to allow all school districts to participate, but the number of charter schools

statewide was capped. See1997 La. Sess. Law Serv. Act 477 (H.B. 2065). In 2003, the Louisiana


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Constitution was amended to authorize, the Department of Elementary and Secondary Education

(BESE) to take over failing public schools or to provide for others to do so, creating the

Recovery School District (RSD). La. Const. art. 8 3.

On August 29, 2005, Hurricane Katrina struck the Gulf Coast wreaking havoc on the City

of New Orleans. The Citys system of public education effectively was destroyed, both

physically and organizationally. Only 16 of the citys 128 schools came out of the storm

relatively unscathed. Consequently, the landscape of public education in New Orleans, and in

Louisiana, changed drastically.

In the wake of Hurricane Katrina, on October 28, 2005, Louisiana Governor Kathleen

Blanco issued an executive order allowing the Orleans Parish School Board (OPSB) to convert

existing schools to charters without public input. SeeExecutive Order KBB 05-79. In so doing,

Governor Blanco recognized that the Louisiana Constitution requires the legislature to provide

for the maintenance and establishment of a public education system and that charter schools,

created pursuant to Louisiana Revised Statute 17:3971, et seq., could fulfill that obligation. See

La. Const. art. VII 1. To fulfill the Constitutional mandate of providing public education, a

majority of the Citys public schools converted to charter schools just days after Hurricane

Katrina. In 2009, the Louisiana State Legislature removed the cap on the total number of charter

schools after recognizing the growing number of charter schools in New Orleans.

Today, 90% of the public schools operating in the City of New Orleans, including

Employer, are charter schools. Indeed, only six traditional public schools are operating today,

and 9 of 10 public school students in New Orleans attend charter schools. Without charter

schools, there simply would be no public education in the City of New Orleans.


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FACTS INTRODUCED DURING THE REPRESENTATION HEARING

A. Establishment of Lusher Charter School

Lusher School a historically public governmental entity operated directly by the OPSB

submitted its charter application before the OPSB thereby creating Lusher Charter School.

(Hrg Tr. 30:4-8 May 3, 2016). Lusher School was created as a public school in 1913. Lusher

School began the process of converting from a historically public governmental entity to a

charter school in the spring of 2005.Id.Just a day or so before Hurricane Katrina struck and only

after an overwhelming majority of Lusher Schools staff and parents voted by secret ballot to do

so, did Lusher submit its charter application to the OPSB. (Hrg Tr. 30:13-17 May 3, 2016).

Employers charter application was approved on September 14, 2005. (Hrg Tr. 30:15-17 May 3,

2016). Employer re-opened its doors to the school-aged children of New Orleans as a public

charter school in January 2006. (Hrg Tr. 30:22-23 May 3, 2016).

B. OPSB has Controlling Authority over Lusher Charter School.

Employer operates at two locations: 5634 Freret Street, New Orleans, Louisiana 70118

(Upper School) and 7315 Willow Street, New Orleans, Louisiana 70115 (Lower School). (Hrg

Tr. 44:14-16 May 3, 2016). Those premises are owned and controlled by OPSB. (Hrg Tr. 44:8-

10 May 3, 2016). If Employer makes any improvement to the premises, those improvements

become the property of OPSB.Id.OPSB serves as the Employers local education agency and is

responsible for Employers budget and audits. Employer is obligated to follow the public school

regulations of State Bulletin 741 Louisiana Handbook for Educators and State Bulletin

1566 Pupil Progression Policies and Procedures of Title 28 of the Louisiana Revised Statutes.


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Employer is funded almost entirely through the state Minimum Foundation Program,

which allocates money to each student in the district for the operation of the school.1See

Employers Exhibit 2. Employer is classified as an approved public school of OPSB for funding

purposes, and any money that Employer acquires is controlled by OPSB before distribution. La.

Rev. Stat. 17:3995(A)(1). All reporting obligations of a public school are imposed on

Employer and must be reported to OPSB for state collection.

C. Employer Operates with Direct oversight from OPSB.

Section H of the Orleans Parish School Board Policy Manual, the Louisiana Charter

Schools Law,and the Operating Agreement executed between Employer and OPSB set specific

rules and regulations regarding Employers operations, which are conducted only with the

approval of and under the direct oversight of the OPSB. Consistent with its oversight authority,

OPSB has the right to revoke the charter and assume operations of the school if any of the

following requirements are not met:

Employer must hire the services of one or more business professionals to produce

all financial and accounting information (Employers Exhibit 1);

Employer must submit to the OPSB an annual financial audit, in accordance withthe provisions of Louisiana Revised Statute 24:513 et seq,and according to the

timelines established by the Orleans Parish School Board (Employers Exhibit 1);

Employer must comply with the minimum at-risk student population percentagesprovided for in Louisiana Revised Statute 17:3991 (Employers Exhibit 1);

Employer must participate in the common expulsion process adopted by OPSB

(Employers Exhibit 1);

OPSB evaluates Employers educational, financial, and organization performanceusing the standards set forth in the OPSB Policy (Employers Exhibit 2);

Employer must submit changes to any terms of the educational program in writing

to OSPB (Employers Exhibit 2);

1 Funds distributed to traditional public school are distributed in the same way.


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Employer must perform all student testing required by state law and BESE policy

and regulations. Employer must also comply with state high school accreditation,new course creation, and end of course testing requirements (Employers Exhibit

2);

Employer must comply with all requirements related to the state assessment and

accountability system for public schools, pursuant to Louisiana Revised Statutes 17:3996(A)(17) and 17:3996(B)(17-18) (Employers Exhibit 2);

Employer must comply with the requirements for minimum instructional minutes

for public schools set forth in Louisiana Revised Statute 17:154.1(A)(1)(Employers Exhibit 2);

Employer must provide free and adequate transportation to any student enrolled in

the school who resides more than one mile from the school (Employers Exhibit

2);

Employer may access district resources on the same terms as OPSB direct-run

schools (Employers Exhibit 2);

Employer must comply with all OPSB policies, procedures, and regulations

concerning the education of students with disabilities. Additionally, Employer is

responsible for compliance with Section 504 of the Americans with Disabilities

Act in its general curriculum including, but not limited to, implementation of any

formal Section 504 Plan that has been developed for a student (EmployersExhibit 2);

Employer must have a qualified special education coordinator who is responsiblefor monitoring individual case management of all special education students and

for arranging the provision of services required by their Individual Education

Plans. Employer must also maintain a file documenting its compliance with legal

requirements regarding special education (Employers Exhibit 2);

Employer may not charge any student tuition, an attendance free, or fine of any

kind (Employers Exhibit 2);

Employer must make available to OPSB for its records and review all

demographic information it collects related to its applicant pool and its admissionresults (Employers Exhibit 2);

Employer must provide all reports of the Board of Directors to OPSB

(Employers Exhibit 2);

Employer must submit quarterly financial statements to OPSB (Employers

Exhibit 2);


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Employer must make available for inspection and production all records

pertaining to the management and operation of the school (Employers Exhibit 2);

Employer must certify that all instructional staff comply with the state

certification and credentialing requirements consistent with the Elementary and

Secondary Education Act (No Child Left Behind or NCLB) (EmployersExhibit 2);

Employer must comply with all state mandated requirements for personnelevaluations (Employers Exhibit 2);

Should the charter be revoked, OPSB has the sole discretion to assume operations of the

school as a traditional public school, find another entity to assume the charter, or close the school

completely.

D. OPSB sets forth Specific Requirements for Charter School Governing

Boards.

OPSB directs specific criteria for Employers Board of Directors including, but not

limited to, the following:

Employer must abide by all laws and requirements applicable to public bodies

including, but not limited to, Louisiana Open Meetings law, Louisiana PublicRecords Law, Louisiana Local Government Budgets Act, and the Louisiana Code

of Governmental Ethics (Employers Exhibit 1);

Employers governing board shall consist of no fewer than seven (7) members,and shall represent a diverse set of professional skills and practical work

experience in areas such as education, public/non-profit and or for-profit

administration or operations, community development, finance, and law(Employers Exhibit 1);

At least sixty percent (60%) of the members of Employers governing board shall

reside in Orleans Parish, including at least one parent or legal guardian of one ormore students currently enrolled at the school (Employers Exhibit 1);

Each member of the governing board must complete and submit a criminal

background check to the OPSB within ninety (90) days of the members

appointment (Employers Exhibit 1);

Each governing board member must annually file a financial statement, inaccordance with Louisiana Revised Statute 42:1124.3 (Employers Exhibit 1);

and


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No governing board member shall receive any compensation in accordance with

Louisiana Revised Statute 17:3991 (Employers Exhibit 1).

See alsoHrg Tr. 32 :18 36:21 May 3, 2016.

ARGUMENT

The sole issue before the Board on review is whether Employer, a public charter school

in New Orleans, is exempt from the Boards jurisdiction as a political subdivision of the State of

Louisiana.2The Boards longstanding test, as examined by the Supreme Court in NLRB v.

Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971), is used to determine

whether an entity may be considered a political subdivision. Under the Hawkinstest, an entity is

considered a political subdivision if it is either: (1) created directly by the state so as to constitute

a department or administrative arm of the government, or (2) administered by individuals who

are responsible to public officials or to the general electorate.Id.at 604-05.

Here, however, the Regional Director failed to analyze all facts presented and relied

solely on the decision rendered in Chicago Mathematics & Science Academy Charter School,

Inc., Employer and Chicago Alliance of Charter Teachers & Staff, IFT, AFT, AFL-CIO, 359

NLRB 41 (2012).3That reliance is unsound because Chicago Mathematics was decided by a

panel of the Board that lacked a quorum inasmuch as it included two persons whose

appointments to the Board were held to be invalid by the United States Supreme Court in NLRB

2 In 2009, the United States District Court for the Eastern District of Louisiana ruled that Employer was not a

political subdivision of the State of Louisiana. The district courts ruling should have no bearing in this

proceeding as it is not binding on the Board, and it applied a different standard of law.

3 The case is noteworthy for two reasons. First, it highlights the fact-based nature of the jurisdiction issue.

Second, its dissent gives a foundation for the Board to decline jurisdiction in a public school setting. MemberHayes found that Employer was not a political subdivision of the state exempt from the Boards jurisdiction.

Member Hayes, however, did conclude that it would be proper for the Board to decline jurisdiction because of

Chicago Mathematics status as a public school under Illinois law and its fundamentally local nature. Following

the Courts decision in Canning, 134 S.Ct. 2550, the Board did not review its decision in Chicago Mathematics

because the case was marked closed, because the original Board decision resulted in some action thatconcluded the proceeding, such as settlement, withdrawal of charges, or full compliance.

https://www.nlrb.gov/cases-decisions/information-decisions-issued-january-4-2012-board-member-appointees.


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v. Noel Canning, 134 S.Ct. 2550 (2014). See, e.g., Greater Omaha Packing Co. v. N.L.R.B., 790

F.3d 816, 825 (8th Cir. 2015). The Board should grant Employers Request for Review, inter

alia, to decide the previously undecided jurisdiction question.

A. Jurisdiction is Improper because Employer Qualifies as a Political

Subdivision of the State Pursuant to the First Prong of theHawkinsTest.

A states characterization of an entity is an important factor in determining whether the

employer was created to constitute a department or administrative arm of the government.

Natural Gas Util. of Hawkins Cnty., 402 U.S. 600 (1971).Louisiana law provides in part,

It is the intention of the legislature in enacting this Chapter to authorize

experimentation by city and parish school boards by authorizing the creation ofinnovative kinds of independent public schools for pupils. Further, it is the

intention of the legislature to provide a framework for such experimentation bythe creation of such schools, a means for all persons with valid ideas and

motivation to participate in the experiment, and a mechanism by which

experiment results can be analyzed, the positive results repeated or replicated, ifappropriate, and the negative results identified and eliminated. Finally, it is the

intention of the legislature that the best interests of at-risk pupils shall be the

overriding consideration in implementing the provisions of this Chapter.

The purposes of this Chapter shall be to provide opportunities for educators andothers interested in educating pupils to form, operate, or be employed within a

charter school with each such school designed to accomplish one or more of the

following objectives:

Improve pupil learning and, in general, the public school system.

La. Rev. Stat. 17:3972(A) and 17:3972(B)(1)(a)(emphasis added).

Louisianas Charter Schools Law requires that the operator of a charter school be

organized as a nonprofit corporation. La. Rev. Stat. 17:3991(1)(A). The Louisiana Supreme

Court distinguishes a public corporation from a private corporation, when it is created for a

public purpose only, connected with the administration of government, and when its whole

interest and franchises are the exclusive property and domain of the government itself. New

Orleans v. Bd. of Supervisors of La. State Univ., 206 La. 913, 20 So. 2d 264 (1944). While


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Employer may be a 501(c)(3) corporation with its own board of directors, under Louisiana

Revised Statute 12:202.1(D), Employer is a quasi-public nonprofit corporation. Employers

sole raison detreis to serve a public purpose and to fulfill a duty for which the government is

tasked; its whole interest and franchises are the exclusive property of OPSB.

In the wake of Hurricane Katrinas devastation of New Orleans and its public school

system, Governor Kathleen Blanco issued the executive order that called for the creation of

charter schools to perform the operation of public education. Absent charter schools, the City of

New Orleans would have been unable to provide public education to eligible students, in direct

violation of Louisiana Constitution article VII 1. See also Executive Order KBB 05-79.

Hurricane Katrinas virtual annihilation of New Orleans traditional public schools made it a

public necessity for charter schools, under the express authority of the Governor of the State, to

provide the education services required under the State Constitution.

Employer was created when Lusher School, a historically public governmental entity

operated directly by the OPSB, was granted its charter application. Employer is able to operate a

charter school only through its charter agreement with OPSB, subject to public oversight and

direction. Under the express provisions of Louisianas Charter Schools Law, Employer is a

public school subject to the same federal and state laws that apply to traditional public schools.

La. Rev. Stat. 17:3973(2)(a). Employer is funded almost entirely with public funds, and all

funds must pass through OPSB before being distributed to Employer. An examination of

Employers operations, supra, demonstrates that it operates in many of the same ways that it did

prior to receiving its charter.4For example, Employer is exempt from all state and local taxes.

5

4 Management has remained consistent since the granting of Employers charter and at least 34 teachers are

veterans from before the school was chartered. The lower school campus has operated as a public school since1918. The focus and mission of admitting students in the OPSB designated school have remained consistent

since the 1990s, both when operated by OPSB and employer. Students are admitted from a designated


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Employer is not a contractor subject to government oversight, but is a public school

subject to the authority of the OPSB. Unlike a contractor, Employer cannot provide services

absent a directive from OPSB. Moreover, Employer possesses the three essential characteristics

of any public school: it is open to all students who reside in Orleans Parish, it meets the States

basic educational requirements, and it is publicly funded from state tax revenues. SeeEmployers

Exhibits 1 and 2. The Board should give significant weight to the fact that Louisiana has

designated charter schools as independent public schools because that designation is a clear

indicator that Louisianas Charter Schools Law is intended to satisfy the political subdivision

exemption under 2(2) of the Act.

B. Employer is also exempt from the Boards Jurisdiction as a Joint-Employer

with the OPSB.

A private corporation acting as a joint employer with an exempt public agency is itself

exempt from the Boards jurisdiction. See NLRB v. Chicago Youth Ctr., 616 F. 2d 1028 (7th Cir.

1980). The Boards joint employer standard is set out in Browning-Ferris Industries of

California Inc., d/b/a BFI Newby Island Recyclery and FPR-II, LLC, d/b/a Leadpoint Business

Services, and Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of

Teamsters, 362 NLRB 186 (2015).InBrowning-Ferris, the Board held that it no longer requires

that a purported joint employer exercises direct and immediate control over employment terms

and conditions in more than a limited and routine manner.Id.It is material whether the purported

joint employer: (1) has reserved authority to control employment terms and conditions; and (2)

exercises indirect control (such as, by using an intermediary) over employment terms and

geographical area, as well as a lottery a process that has been vetted and approved by the Office of Civil

Rights.

5 InHawkins, the Court found that the utility district fell within the Acts political subdivision exception because,

among other things, it was a public corporation under state law and its property and revenues were exempt fromall state and local laws.Hawkins, 402 U.S. at 606-607.


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conditions.Id.The non-exhaustive list of employment terms and conditions relevant to the joint

employment analysis includes the authority (even if unexercised) directly or indirectly to: (1)

hire, fire, discipline, supervise, and direct work; (2) determine wages and hours; (3) the number

of workers to be supplied; (4) control workers' schedules and overtime; (5) determine seniority;

(6) assign work; and (7) determine the manner and methods by which work is performed.Id.

Browning-Ferrisjointly employed the employees of a contractor at its recycling facility,

Leadpoint Business Services, primarily because it had potential or indirect control over

Leadpoints workers employment terms and conditions. See Browning-Ferris Indus. of Ca. Inc.,

d/b/a BFI Newby Island Recyclery and FPR-II, LLC, d/b/a Leadpoint Bus. Serv., and Sanitary

Truck Drivers and Helpers Local 350, Intl Bhd. of Teamsters, 362 NLRB 186 (2015). Employer

and the OPSB share several employees, but the OPSB maintains control over those employees.

For instance, Employer works with OPSBs Department of Exceptional Childrens

Services to provide services for students who qualify for speech and language services,

occupational therapy, physical therapy, and adaptive physical education. OPSB also provides

personnel needed to serve students who qualify for special education services.Those employees

are paid by OPSB. Both Employer and OPSB, however, maintain certain control over those

employees. Employer may supervise those individuals, designate the number of employees to be

supplied, assign work, and determine the work to be performed. But, the OPSB, inter alia, sets

those employees salaries or wages, determines their benefits and seniority, and has ultimate

hiring and firing authority.

Additionally, Employer and the Confucius Institute jointly employee several Chinese

teachers. The Confucius Institute at Xavier University of Louisiana, in partnership with Hebei

University in Boading, China, sponsors several Chinese teachers working with Employer to


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teach Chinese to its students. Those employees are citizens of the Peoples Republic of China.

Employer, similarly, has indirect control over these employees including supervision, the number

of designated employees, work assignments, and how that work is to be performed. But, the

Confucius Institute, the Hebei University (China), and the Federal Government control those

employees authorization to work in the United States, immigration benefits, salaries or wages,

and has the ultimate hiring and firing authority.

Requiring Employer to bargain with those individuals is counter to the principles of the

Act because Employer cannot engage in meaningful bargaining with them, as they are exempt

from the Boards jurisdiction. See Museum Assoc. v. N.L.R.B., 688 F.2d 1278, 1280 (9th Cir.

1982) citing Fire Prot. Co., 216 N.L.R.B. 584, 585-6 (1975) (holding that the NLRBs

jurisdiction is not asserted when collective bargaining will be futile.) The Boards assertion of

jurisdiction under these circumstances would create instability concerning the application of the

Act within each bargaining unit because employer would be permitted to bargain only with select

members of each suggested unit.

C.

Alternatively, the Board should exercise its discretion and decline to assert its

jurisdiction in this matter because the State of Louisiana has specifically

called for the creation of charter schools as an integral part of its overall

public education system.

The foregoing shows that Employer is a political subdivision within the meaning of

Section 2(2) of the Act. However, should the Board disagree and conclude otherwise, then the

Board should exercise its discretion and decline to take jurisdiction under the novel

circumstances presented here. The City of New Orleans is home to one of the most complex

systems of public school governance in the nation. The Board should decline to assert

jurisdiction over Employer because of Employers integrated and highly regulated relationship


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with the State of Louisiana, the OPSB, its fundamentally local nature, and because doing so will

not frustrate the purpose of the Act.

The Board has held that it will not exercise discretion when the policies of the Act would

not be effectuated by the Boards assertion of jurisdiction. See Nw. Univ. and College Athletes

Players Assn, 362 NLRB 167 (2015); citingNLRB v. Denver Bldg. Trades Council, 341 U.S.

675, 684 (1951); NLRB v. Teamsters Local 364, F.2d 19, 23 (7th Cir. 1960). The Board has

imposed discretionary standards for asserting jurisdiction over cases based on the industry of the

employer. 29 U.S.C. 164(c)(1). The Board, however, is free to disregard those standards

because they are self-imposed and not statutorily required. Id. The Boards discretionary

jurisdictional standards are typically stated in terms of volume of business and vary based on the

type of the enterprise involved. Id.Asserting jurisdiction over this matter would encroach upon

the governmental relationship between Employer, the OPSB, and the State of Louisiana.

For instance, in Temple University, the Board declined to assert jurisdiction over a

private, nonprofit institution because the employer was a quasi-public higher educational

institution. Temple University, 194 NLRB 1160 (1972). The Board further explained that it

would not assert jurisdiction because doing so would not effectuate the policies of the Act.Id.

In that case, the university was designated as an instrumentality of the Commonwealth of

Pennsylvania, and the state maintained control over instructional, administrative, and financial

affairs of the university.Id.

Additionally, the Board traditionally declined to exercise its jurisdiction over the horse

racing and dog racing industries. See, e.g.,Jefferson Downs, Inc. 125 NLRB 386 (1959);Hialeah

Race Court, Inc., 125 NLRB 388 (1959); Los Angeles Turf Club, 90 NLRB 20 (1950); see also

29 C.F.R. 103.3. Eventually codifying its practice in 29 C.F.R. 103.3, the Board emphasized


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state control over those industries, which like here, includes licensing and supervision through

administrative agencies. 38 Fed. Reg. 9537 (April 1973). Also like here, the Board determined

that racetrack operations are essentially local in nature, and that declining jurisdiction [would]

not leave the labor relations of such operations unregulated. Hialeah Race Court, Inc., 125

NLRB at 390. In sum, the Board determined that declining jurisdiction over those industries

would not effectuate the policies of the Act.Id.

Further, in Austin Developmental Center, the Board found that where a public entity is

required by statute to provide certain services and chooses to satisfy this obligation by

contracting with a private employer, then the private employer should be exempt from Board

jurisdiction because it is functioning, in effect, as a public agency. N.L.R.B. v. Austin Dev. Cnt.,

Inc., 606 F.2d 785, 791 (7th Cir. 1979). The Court held that the exemption is applicable where

the public agency contracts with private employers to satisfy as statutory obligation.Id.

As discussed, Employer must comply with state laws governing public entities including

the Code of Ethics, Open Meetings Laws, Local Government Budget Act, Public Records Act,

and Public Bid Law in the same manner as traditional public schools. SeeEmployers Exhibit 2;

See alsoHrg Tr. 32 :18 36:21 May 3, 2016. Employer also receives a letter grade through the

states accountability system and administers the same high-stakes test as other public schools.Id.

Metrics of performance maintained regarding the OPSB and reported to the State of Louisiana

require OPSB charter schools to report concurrently with OPSB directly run public schools.Id.

Employer resides in buildings owned by OPSB, and any assets, including building

improvements, acquired by the charter school become assets of OPSB. Id. Employer also

submits annual and quarterly reports listing revenues and expenditures through that budgeted

cycle to OPSB.Id.


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Employer also contributes to the Teachers Retirement System of Louisiana (TRSL), a

governmental plan within the meaning of both the Internal Revenue Code6and the Louisiana

Constitution.7Only public employees, not contractors, may participate in the TRSL under

Louisiana law. Unlike other charter schools, which optionally participate in state sponsored

pension plans, Employer is required to participate in the plan, as explained by the Louisiana

Attorney General. SeeLa. Atty. Gen. Op. No. 11-0257. Moreover, Employer may not opt out of

the TRSL.8Id.

Additionally, in Louisiana, public employees are protected from discrimination because

of their relationship with a labor organization, and state agencies and political subdivisions are

free to bargain with employee organizations. See La. Teachers Assoc. v. OPSB, 303 So. 2d 564

(La. App. 4th Cir. 1974). In that case, the court was asked to decide whether a school board

could collectively bargain with its employees, or whether such bargaining was an an unlawful

delegation of the board's power. Id, citingLouisiana Revised Statute 23:822, the court found

that because the express public policy of Louisiana encourages employees self-organization and

collective bargaining in the private sector, there was no public policy reason to deny collective

bargaining to the public sector.Id.at 567

6 Under federal law, the term governmental plan means a plan established and maintained for its employees bythe Government of the United States, by the government of any State or political subdivision thereof, or by any

agency or instrumentality of any of the foregoing. See26 U.S.C. 414(d).

7 Louisiana law states, the legislature shall provide for retirement of teachers and other employees of the public

educational system through establishment of one or more retirement systems. Membership in such a retirementsystem shall be a contractual relationship between employee and employer, and the state shall guarantee

benefits payable to a member or retiree or to his lawful beneficiary upon his death. La. Const. art. X 29(A).

8 Louisiana Constitution article X 29(A) states that the legislature shall provide for retirement of teachers and

other employees of the public educational system through the establishment of one or more retirement systems.

Membership in such a retirement system shall be a contractual relationship between employee and employer,

and the state shall guarantee benefits payable to a member or retiree or to his lawful beneficiary upon his death.Louisiana Constitution article X 29(A) creates a continuing relationship between teachers and their

employers.


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The structure of public education in New Orleans, in tandem with the interconnectedness

of Employer, the OPSB, and the State of Louisiana, strongly suggest that asserting jurisdiction in

this case would not promote stability in labor relations. Allowing different rules for charter

schools and the few public schools that still existence in Orleans Parish would produce a

patchwork mode of regulations and impose inconsistent application of federal and state law on

public employees. Accordingly, because Employer operates within the confines of the extensive

regulations of the public school system, its employees are treated as public employees in

connection with the TRSL, and the employees organized labor rights are protected under State

law, Employer respectfully suggests that the Board should decline to exercise jurisdiction.

CONCLUSION

For the reasons stated above, Employer respectfully requests that the Board grant its

Request for Review.

Respectfully this 24th day of May, 2016.

MCGLINCHEY STAFFORD,PLLC

/s/Magdalen B. Bickford

Magdalen B. Bickford (La. Bar Roll No. 17472)Angelina Christina (La. Bar Roll No. 28530)

Camille R. Bryant (La. Bar Roll No. 35063)

601 Poydras Street, 12th

FloorNew Orleans, Louisiana 70130

Telephone: (504) 586-1200

Facsimile: (504) 596-2800Email: [email protected]

[email protected]

[email protected]

Attorneys for Advocates for Arts-based Education

Corporation d/b/a Lusher Charter School


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CERTIFICATE OF SERVICE

I hereby certify that on May 24, 2016, I electronically filed the foregoing with the

National Labor Relations Board using the Agencys E Filing Program, and a copy was sent to

all known counsel of record by email and/or facsimile transmission:

Louis L. Robein, Jr., Esq.

Julie Richard Spencer, Esq.Robein, Urann, Spencer, Richard & Cangemi, APLC

2540 Severn Avenue, Suite 400

Metairie, Louisiana 70002

Attorneys for Union

M. Kathleen McKinneyNational Labor Relations Board Region 15

600 South Maestri Place, Floor 7

New Orleans, Louisiana 70130

Regional Director

/s/Magdalen B. Bickford

MAGDALEN B. BICKFORD

Documents

Lusher NLRB Jurisdiction Appeal Brief