LSU Faculty Union Organizing: The Legal Issues

Paul F. Bell, Attorney Footnote

October, 2009


Prepared for the LSU Faculty Senate

Ad Hoc Committee on Bargaining and Representation,

Michael Russo, Chair, Dominique G. Homberger, Patrick McGee and Paul Wilson


Collective bargaining in states with protective legislation for unions is like dancing the tango with a referee watching. The referee forces the reluctant partner to dance and issues fines for missteps. In Louisiana, however, there are no laws to protect collective bargaining—there is no referee. The partner doesn’t have to dance and can fandango to your tango.


Collective bargaining is the negotiation between representatives of employees and employer over the conditions of employment such as wages, disciplinary procedures, and fringe benefits. For university faculty, negotiations would include issues of faculty governance.


The collective bargaining process for most private-sector employees is subject to the National Labor Relations Act (NLRA) as administered by the National Labor Relations Board (NLRB). NLRA is used as a model for laws in 34 states to protect government employees’ collective-bargaining rights. Five states prohibit collective bargaining for the public-sector employees while there are eleven states, including Louisiana, that neither protect or prohibit it. Footnote


NLRA, or equivalent laws in those states with protective legislation, protect the collective bargaining process by doing the following:

i) NLRB supervises union elections;

ii) collective bargaining agreements must at least cover NLRA-defined issues;

iii) collective bargaining must follow particular methods and timing;

iv) there are penalties for parties that breach the collective bargaining agreement; Footnote , Footnote and

v) the abundance of federal and state case law on labor disputes provides courts with persuasive authority to help decide similar cases and interpret labor laws.


Private-sector employees may enjoy more protections if Congress passes the Employee Free Choice Act. Those protections would include the following:

i) employees may select a union by signing authorization cards;

ii) arbitration can settle disputes regarding the first collective bargaining agreement; and

iii) more stringent penalties may be imposed during the organizing drive or during negotiations for the first collective bargaining agreement.


Louisiana’s Right to Work laws allow employees the choice whether to join a union or pay union dues. In addition, employees cannot be fired for refusing to join or for joining a union. These laws are more important for keeping than forming a union. It would have minor effects on LSU faculty union-organizing efforts.


Protective Legislation for Collective Bargaining—So What?  

The authors of a book on labor relations, professors Richard Kearney and David Carnevale, give a grim prognosis for union organizing in states that lack collective-bargaining legislation:

It should be noted that almost all organized college and university faculties are in states that are characterized by a legislative environment conducive to faculty unionization and collective bargaining. Rarely do faculty organize into unions in the absence of protective legislation.” Footnote


With protective legislation, state laws require employers to engage in collective bargaining if employees demand it, while without such legislation, an employer is not required to collectively bargain.

 

U.S. and Louisiana Laws Allow Public Employees to Unionize and Strike

The First Amendment of the U.S. Constitution states that “Congress shall make no laws . . . prohibiting . . . the right of people to peaceably assemble.” The U.S. Supreme Court has interpreted this clause as providing the right for group associations including unions. Footnote The strength of that right is weakest for associations of commercial interests and strongest for political or religious associations. Footnote This right in regards to the formation of unions is strong. There is no constitutional requirement, however, that the employer collectively bargain with a union. Footnote In one regard the Louisiana government worker has more labor rights than do private employees: constitutional protection against government retaliation for labor organizing.


The Louisiana law that permits and encourages unions is a strong pro-union statement (La. R.S. 23:822). Footnote It declares that it is the public policy of the State to promote unionization and collective bargaining:

The State has found that the government has “encouraged employers to organize in the corporate and other forms of capital control.”

As a result, the individual employee is “helpless to exercise actual liberty of contract and to protect his freedom of labor . . .”

Therefore, it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference ....” in activities “for the purpose of collective bargaining.”


A Louisiana appellate court has held in Louisiana Teachers' Association v Orleans Parish School Board Footnote that since the above statute promotes unions and collective bargaining for private-sector employees, there is no reason not to allow similar rights for government employees. The Louisiana Supreme Court refused to review the case indicating that it likely agreed with that holding. Footnote


Employers employed court injunctions in the 1920s to stop strikes and to prevent employees from striking. In 1932, Congress passed the Norris-LaGuardia Act forbidding the use of injunctions for those purposes. Footnote Louisiana passed similar legislation with respect to its government employees. Footnote Therefore, Louisiana public-school teachers can strike provided it does not threaten public health or safety.


The Right of Faculty of Private Universities to Collective Bargaining

There is some confusion as to whether public- and private-university faculty members are managers and therefore ineligible for NLRA protections. Since NLRA only affects private-sector employees, only faculty members employed by private universities are affected by it. The U.S. Supreme Court held in the case of National Labor Relations Board v. Yeshiva University, Yeshiva University Faculty Association that Yeshiva faculty members were managers and, therefore, ineligible for NLRA protections. Footnote The Supreme Court found that faculty members at each of the Yeshiva schools effectively determined their curriculum, grading system, admission and matriculation standards, academic calendars, and course schedules. The administration, too, implemented the overwhelming majority of faculty recommendations for faculty hiring, tenure, sabbaticals, termination, and promotion.


Since Yeshiva, some private-university faculty have argued they were not managers because they lacked faculty governance powers and were, therefore, entitled to NLRA protections. After some initial successes, this strategy has failed, however. Footnote Some AAUP members figure the U.S. Supreme Court got it wrong in that there is faculty authority but it is severely limited in that the final determination is virtually always with the administration.

 

States mimic NLRA in formulating their own collective bargaining laws, but they have not done so regarding Yeshiva’s interpretation of NLRA. This is probably because of faculty clout in their state legislative and judicial arenas. Yeshiva does not affect Louisiana public employees since those employees lack NLRA or state-equivalent protections. As far as faculty at private universities, Yeshiva makes their union organizing efforts similar to that of the public employees since it does not matter public or private—there is no protective legislation.


The Earliest Court Cases for the New Orleans Teachers’ Union

New Orleans public school teachers were the first Louisiana teachers to unionize. The history of their court battles with the Orleans Parish School Board (OPSB or the Board) provides a glimpse of what LSU faculty will encounter with the LSU Board of Supervisors should LSU faculty unionize. 


Several unions attempted to organize teachers in Orleans Parish in the early 1970s. OPSB agreed to collective bargaining provided it selected the election procedure and the union—the United Teachers of New Orleans (UTNO or union). Three unions filed suit in state district court to block the election (UTNO, AFL-CIO, and Louisiana Federation of Teachers). Footnote


The district court dismissed the suit, the union appealed, and the appellate court affirmed the decision. The appellate court reasoned, as mentioned above, that since it was Louisiana public policy to promote self-organization of private-sector employees, public-sector employees should be allowed to organize, too.


The court found no error in the Board selecting a union for the election as long as the union received a majority of votes cast and that individual teachers could file complaints, suggestions, and grievances to the Board.


The court found the election procedure adequate, too, fearing that an election that required approval of a majority of all workers for a union could fail due to worker apathy. This would frustrate the Board’s intent for the collective bargaining process to continue.


Three years later, the teachers’ union filed suit against OPSB because the Board refused to arbitrate a dispute regarding the Board’s implementation of a new teacher evaluation procedure and policy. The district court ordered the Board to arbitrate with the union and the Board appealed. The appellate court found that the union’s demand for arbitration impinged on the exclusive prerogative of the Board as provided by law. The court held that the Board had a non-delegatable, exclusive prerogative because the State assigned to the Board the legal authority to hire and fire teachers. Footnote Therefore, the Board also had the authority to evaluate them. The Board, the court held, could not by law delegate its authority to implement a teacher evaluation procedure and policy.


The Union appealed and the Louisiana Supreme Court did not address the holding by the lower court. Footnote Instead, it held that the collective bargaining agreement had expired and the Board had no further obligation to adhere to it.


Experts’ Evaluate The Earliest Court Cases of the New Orleans Teachers’ Union

David Dilts, a professor at Indiana University–Fort Wayne who has written extensively on collective bargaining, together with his co-authors examined the effect of the lack of protective legislation on collective bargaining. Footnote They used as their case study the New Orleans teachers’ union cases described above.


Their report strongly criticized the manner in which the courts handled these cases. The real issue before the appellate court, the authors contended, was whether the school board acted in good faith. If negotiations lacked good faith, the authors charged, there was no collective bargaining. Good faith is a complex concept and one that is defined in NLRA and virtually every state version of NLRA. The authors contended that the school board acted in bad faith when it relinquished rights during collective bargaining and then later argued that the delegation of that authority was unlawful. The union had relied on those promises and the other party should not be able to free itself later of those obligations. The authors argued that if Louisiana had protective legislation, the court would have correctly applied the basic principle of good faith in labor law.


The authors faulted the Louisiana Supreme Court for failing to adhere to a U.S. Supreme Court decision that had already addressed almost the same issue as found in Louisiana Teachers Association. Footnote The U.S. Supreme Court had found that even with an expired collective bargaining agreement, the parties had negotiated for it and were entitled to it. Dilts and his co-authors considered this to be well-established labor law and wondered in what additional ways Louisiana labor law differed from NLRA or other states’ laws.


Dilts and co-authors found Louisiana’s collective bargaining laws unique and inconsistent. They placed quotation marks around “collective bargaining” when discussing the Louisiana version of it.


The authors also were concerned that states without protective legislation would have more litigation and arbitration than would other states. They wrote of the Louisiana courts,

 

“court decisions repugnant to the commonly accepted definitions of collective bargaining cannot be in the best interests of fair and reasonable employee-employer relations.”


Court Cases Involving the New Orleans Teachers’ Unions From 1979 to Hurricane Katrina

Perhaps, the Louisiana Supreme Court acted in response to Dilts et al. Footnote and others’ criticism that Louisiana courts had failed to apply established labor law in deciding the 1977 Louisiana Teachers Association case. Footnote In any event, in 1980, the Louisiana Supreme Court stated that Louisiana courts were to follow the principles of federal labor law in deciding cases involving the breach of a collective bargaining agreement. Footnote


In 1997, OPSB sued UTNO to vacate part of an arbitration award that transferred a teacher to another school. Footnote The Board cited their 1977 case discussed above Footnote and a Louisiana statute Footnote for the proposition that the collective bargaining agreement did not apply because its mandates usurped the School Board’s statutorily defined management authority. The court disagreed. It stated that another statute had been enacted since the previous case had been decided and that the newer statute required school boards to establish grievance procedures. Footnote Since the collective bargaining agreement described the grievance procedure for the employee, the collective bargaining agreement did not usurp the board’s management authority. It actually met the requirements of the newer statute. Although OPSB lost this argument, Dilts and his colleagues might have wished it dismissed on the grounds that OPSB had negotiated in bad faith. Footnote


A school teacher sued OPSB in 1997 to vacate an arbitration award that, among other things, reduced a suspension to a written warning. Footnote On appeal, the court found that there was no prerogative at issue that the Board could not delegate away in the collective bargaining agreement. The court, then, treated the issue as a breach of a collective bargaining agreement and applied the principles of federal labor law to decide the case (as the Louisiana Supreme Court had instructed). Footnote The rest of the opinion was studded with citations of federal labor law cases; these included the U.S. Supreme Court case whose omission by the Louisiana Supreme Court from its consideration in an earlier case had been pointed out by Dilts et al.. Footnote The court affirmed the district court in major part.


The two cases show that courts still honor the argument that school boards can breach a collective bargaining agreement if they find that they have relinquished rights that are not allowed under the empowerment statute of La. R.S. 17:81. When the union succeeded in overcoming that argument in breach of collective bargaining agreement cases, the courts followed the principles of established labor law in deciding their cases. The courts have resolved one criticism made by Dilts et al. and have left unresolved the other regarding bad faith.


Court Cases Involving the New Orleans Teachers’ Unions Post-Katrina

The State Legislature removed many schools from the Orleans Parish School District and placed them in the Recovery School District after Hurricane Katrina. It also ended the collective bargaining agreement with the union in those schools. A court found that this did not affect the contract between OPSB and UTNO and, in any case, it was permissible state action. Footnote


In 2007, OPSB unanimously recognized a union as the bargaining agent for teachers, but the next year rejected the collective bargaining agreement presented to it. Without protective legislation here, it is unlikely that a court will compel OPSB to collectively bargain with the union.


The New Orleans Teachers’ Unions and Implications for University Unions

The New Orleans teacher-union court cases are troubling for university faculty members especially if they desire more governance powers than those found in public schools. The court in Louisiana Teachers Association ruled that a School Board’s prerogatives regarding hiring, firing, and evaluating as set out in statutes could not be abrogated by a collective bargaining agreement even if the School Board had given up those rights in that agreement. Footnote Although the statute empowering public schools differs from that for university systems, it is reasonable to assume that university administrators may adopt a similar argument against LSU faculty members should they unionize. Further study of the State’s statutory grant of authority to the LSU System and the Board of Regents Footnote and those agency’s delegation of its powers is needed.



Conclusions

Louisiana government employees can unionize, collectively bargain, and strike but do so without laws that other states have to protect those rights. Fewer faculty members organize in states that do not have the protective legislation. Collective bargaining is done in Louisiana in a framework ill defined. The results from the New Orleans teachers’ union cases show that without that framework, courts and employers will likely stifle collective bargaining. Results from more recent litigation show that Louisiana courts are starting to interpret labor law like that elsewhere, making the law and litigation more predictable.


Employers in Louisiana may be able to employ defenses against unions that are unavailable elsewhere. A school board argued that although it had delegated some of its rights away during collective bargaining, it could not be held to the agreement because the delegation was illegal. The courts agreed while labor experts found this delegation entirely proper and the Board’s actions in bad faith.


In Louisiana, the employer can decide the election procedure, the union that can appear in an election, and whether the employer need collectively bargain. In states with protective legislation, these decisions are made according to procedures set forth in regulations and the statute. Footnote


Unsaid in the court battles described above is how the union convinced the school board to engage in collective bargaining. Baton Rouge teachers tried doing this by striking in 1979 and by more subtle persuasion in 2008; they failed both times. Footnote Jefferson Parish public-school teachers have had unions for about thirty years and without the drama of the teachers in Orleans Parish. There are unions at the University of Southeastern Louisiana and the University of New Orleans though they lack collective bargaining rights.


Some government employees collectively bargain in Louisiana but it is harder in this state than elsewhere.