Federal Appeals Court Backs NLRB Ruling That La. Charter Must Recognize Union

By Mark Walsh — September 24, 2018 3 min read
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A federal appeals court has ruled that a Louisiana charter school operator is not a political subdivision of the state, lending support to a decision of the National Labor Relations Board that the operator committed an unfair labor practice by not recognizing and bargaining with a teacher’s union.

The unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, is potentially significant nationally amid efforts to unionize teachers and other employees at charter schools, which are public schools but with widely varying governance structures.

The 5th Circuit panel stressed that its decision, involving a charter school run by a group called Voices for International Business and Education, was based on its interpretation of Louisiana’s charter school law and that the NRLB has found charter school operators in at least one state—Texas—to be political subdivisions of the state.

“Because Louisiana chose to insulate its charters from the political process, Voices like most other privately controlled employers is subject to the National Labor Relations Act,” the appeals court said in its Sept. 21 decision in Voices for International Business and Education v. National Labor Relations Board.

Voices has since 2009 operated the International High School of New Orleans under the authorization of the Louisiana Board of Elementary and Secondary Education. The organization does not participate in the state teachers’ retirement system, and its charter provides that its board of directors is the “final authority” in all matters affecting the school. The state can remove a board member only for a state ethics violation.

The United Teachers of New Orleans, an affiliate of the American Federation of Teachers, petitioned the NLRB to organize Voices employees, and the board agreed that Voices was not a political subdivision and thus its employees could be organized under the federal labor statute.

The employees voted to join the union, but Voices refused to recognize the bargaining unit, leading to the NLRB’s finding of an unfair labor practice, which the charter operator appealed to the 5th Circuit.

The appeals court said that under Louisiana law, Voices lacks the political accountability of a true subdivision of the state.

“That is by design,” U.S. Circuit Judge Gregg Costa wrote for the court. “One of the perceived virtues, if not the virtue, of charter schools is that a lack of political oversight gives them freedom to experiment. ... Louisiana charter school operators like Voices enjoy that greater freedom to innovate because they are not controlled by political actors. ... There is no way for the public to select the board members who set policy for Voices. We thus agree with the [NLRB] that Voices is not administered by individuals who are responsible to public officials or to the general electorate.”

Voices argued that the unique character of the charter school landscape in New Orleans, with more than 90 percent of public school students in the city attending charter schools since Hurricane Katrina in 2005, called for a different way of looking at the system.

Costa said the court did not disagree that charters are essentially the public school system in New Orleans, “but the prevalence of charters does not transform them into politically accountable entities.”

The court pointed out that the NLRB has rejected a similar political subdivision argument for exempting charter schools from federal labor law in New York state and Pennsylvania. But in ruling on a Texas charter school this year, the labor board held that the school was a political subdivision of the state because the Texas Education Agency retained full authority to reconstitute the charter school’s board.”

A version of this news article first appeared in The School Law Blog.