UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

*
*
*
*
* Case No.: 15-RC-174745
Petitioner Employer,
*
*
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,

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 70130
Telephone: (504) 586-1200
Facsimile: (504) 596-2800
Email: mbickford@mcglinchey.com
achristina@mcglinchey.com
cbryant@mcglinchey.com
Attorneys for Advocates for Arts-based Education
Corporation d/b/a Lusher Charter School,
Employer

1621575.1

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.

OPSB HAS CONTROLLING AUTHORITY OVER LUSHER CHARTER SCHOOL......................... 10

C.

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

D. OPSB SETS 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 THE HAWKINS TEST........................................................................................................ 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

1621575.1

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 Local 364,
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-boardmember-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

1621575.1

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD
*
*
*
*
* Case No.: 15-RC-174745
Petitioner Employer,
*
*
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,

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.

1621575.1

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
1621575.1

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 independent public school that 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. See La. 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. See 1997 La. Sess. Law Serv. Act 477 (H.B. 2065). In 2003, the Louisiana
1621575.1

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. See Executive 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.

1621575.1

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. 44:810 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.

1621575.1

10

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. 1 See
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 with
the 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 percentages
provided 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 performance

using 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);

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

1621575.1

11

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 (Employers
Exhibit 2);

Employer must have a qualified special education coordinator who is responsible

for 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 admission
results (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);

1621575.1

12

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) (Employers
Exhibit 2);

Employer must comply with all state mandated requirements for personnel
evaluations (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:

1621575.1

Employer must abide by all laws and requirements applicable to public bodies
including, but not limited to, Louisiana Open Meetings law, Louisiana Public
Records 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 or
more 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, in

accordance with Louisiana Revised Statute 42:1124.3 (Employers Exhibit 1);
and
13

No governing board member shall receive any compensation in accordance with

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

See also Hrg 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. 2 The 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 Hawkins test, 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).3 That 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.

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. Member
Hayes 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 that
concluded 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.

1621575.1

14

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 the Hawkins Test.
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 of
innovative kinds of independent public schools for pupils. Further, it is the
intention of the legislature to provide a framework for such experimentation by
the 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, if
appropriate, 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 and
others 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

1621575.1

15

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 detre is 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.4 For example, Employer is exempt from all state and local taxes.5

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 since
1918. 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

1621575.1

16

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. See Employers
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). In Browning-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

In Hawkins, 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 from
all state and local laws. Hawkins, 402 U.S. at 606-607.

1621575.1

17

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-Ferris jointly 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); citing NLRB 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. See Employers Exhibit 2;
See also Hrg 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 Code6 and the Louisiana
Constitution. 7 Only 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. See La. Atty. Gen. Op. No. 11-0257. Moreover, Employer may not opt out of
the TRSL.8 Id.
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, citing Louisiana 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

Under federal law, the term governmental plan means a plan established and maintained for its employees by
the 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. See 26 U.S.C. 414(d).

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 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. La. Const. art. X 29(A).

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 Floor
New Orleans, Louisiana 70130
Telephone: (504) 586-1200
Facsimile: (504) 596-2800
Email: mbickford@mcglinchey.com
achristina@mcglinchey.com
cbryant@mcglinchey.com
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 McKinney
National Labor Relations Board Region 15
600 South Maestri Place, Floor 7
New Orleans, Louisiana 70130
Regional Director
/s/Magdalen B. Bickford
MAGDALEN B. BICKFORD

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