By Thomas V. Walsh, Principal, Jackson Lewis PC, Advisory Council Member
By Roger S. Kaplan, Partner (Ret.), Jackson Lewis PC, Advisory Council Member
The Atlantic Legal Foundation has long supported charter schools’ laudable goals of reforming public education. The Foundation has supported the charter school community by providing unique labor law guidance to school leadership through a series of books entitled Leveling the Playing Field, addressing the difficult area of union organizing, collective bargaining, and related employee rights at charter schools.* These issues have historically been determined by the individual states’ charter school legislation and public sector labor law, since all charter schools are public schools, as defined by the various state statutes.
The Leveling series raised the question of whether the National Labor Relations Act (NLRA), and not state law, should have jurisdiction over charter schools, despite their states’ characterization as “public schools.” Although there is variation from state to state, in most instances, charter schools are created by and administered by private entities, although funded publicly and subject to state regulation. A few years after these publications, the National Labor Relations Board (NLRB) began to assert federal labor law jurisdiction over charter schools in various states.
There are myriad differences between the labor laws of the individual states and that of the NLRA. Some states have no collective bargaining rights for teachers. Some have limited rights. Some allow employees to vote on unionization through secret ballot elections. Others do not. It is amply clear that no state labor law provides protections and rights to employees as broadly as the NLRA.
The laws of some states tilt toward the benefit of the employers, others, toward the unions. As a result, charter school employers around the country have their own preferences. In some cases unions sought NLRB jurisdiction. In others, employers sought it. As the NLRB has added more states to its jurisdiction, interested parties on both sides have raised their concerns.
Because the NLRB issues decisions on a case by case basis, its extension of jurisdiction over charter schools has been limited to those schools in which a union, employees, or an employer has brought a case. The legal analysis utilized by the Board determines whether the school is a “political subdivision” of the state. If the charter school is initiated by a government entity, or if the government has management control, the school is a political subdivision and is exempt from the National Labor Relations Act.
To date, either the NLRB itself, its regional offices, or its administrative law judges have exercised jurisdiction over charter schools in Arizona, California, Connecticut, District of Columbia, Illinois, Louisiana, Maine, Michigan, Minnesota, New York, Ohio, Oregon, Pennsylvania, Rhode Island, and Tennessee. In every case brought to the NLRB, the Board has determined the school is not a political subdivision with one lone exception. In one case arising in Texas, the Board did decline jurisdiction due to a greater level of authority over the charter school retained by the state.
Although NLRB cases in most states have yet to be litigated, it is clear that the weight of Board law (except in Texas) supports federal jurisdiction.
The rise of charter schools has been highly politicized. The NLRB, somewhat surprisingly, began granting NLRA jurisdiction to charter schools in 2012, during the years of the Obama Board when Democrats held a majority of seats on the Board. In those years, the Republican minority were vocal dissenters on this subject – generally asserting a “states’ rights” view supporting a state legislature’s prerogative to define whether its charter schools were legally equivalent to public schools. Under the Trump Administration, the Board obtained a Republican majority. The NLRB soon began hinting that – when the right case came before it – it would take the radical step of withdrawing federal jurisdiction from all charter schools nationally.
Section 14(c)(1) of the NLRA provides the Board with the extraordinary discretion to decline jurisdiction of the law over all employers within a particular industry, as a class. It is almost never utilized, and certainly never over workplaces as widespread as charter schools have become.
The case the Board appeared to be waiting for finally arrived. A New York City charter school – one of the very first charters in the state – had been (due to the peculiarities of state law) unionized since its inception in 1999. Its employees never voted for unionization, nor in any way expressed a desire to be union represented. Under local law, the powerhouse United Federation of Teachers (UFT) represented the school staff as part of the single bargaining unit covering over 70,000 city public school teachers.
The UFT collective bargaining agreement contains terms and working conditions that are anathema to charter school philosophy. Curiously, the UFT has never enforced its contract regarding the school’s educational operations. However, the teachers chafed under union rules, including mandatory payment of significant union dues. Years later, the teachers petitioned to “decertify” the UFT – meaning to remove them as their bargaining representative. At the time, state law applied, and after three years of litigating, the state labor agency ruled that one school’s employees could not “decertify” the union as to their single school; only the entire school system could do so. Their petition was dismissed.
After 2012, charter schools in New York began considering their options under the emerging new NLRB cases extending jurisdiction. Atlantic Legal Foundation Advisory Council member Tom Walsh counseled several schools, resulting in a landmark 2016 NLRB decision interpreting New York state law to require federal jurisdiction. It should be noted that a key element of NY labor law is that union organizing is achieved by “card check” which denies employees a secret ballot election. The NLRA is premised on the principle of a democratic vote.
For several years, unions seeking to organize New York charter schools continued to contest the NLRB’s “political subdivision” test, to no avail. Absent the advantage of “card check,” unions were often unsuccessful in organizing schools.
In 2017 the employees whose petition to decertify was rejected by the state labor board filed a new decertification petition, this time with the NLRB. Atlantic Legal’s Advisory Council labor law specialist Tom Walsh represented the charter school employer in this matter. Eighteen months later, the Board’s New York regional director issued a decision granting the employees a decertification election. The UFT appealed to the full Board in Washington, D.C. The newly seated Board GOP majority took the opportunity to consider whether the NLRB might withdraw jurisdiction from all charter schools, as it had threatened to do – despite the fact that no party in the case requested that result.
The NLRB issued a call for amici to file briefs. The Atlantic Legal Foundation was interested in being heard on this subject. The Foundation consulted with state and national charter school groups. Ultimately, the ALF declined to file an amicus brief because schools and charter school associations the Foundation supports are on both sides of the matter, often depending upon where they are located.
The school and its employees argued that although the Board has the statutory authority to withdraw jurisdiction, there was no evidence supporting such an unprecedented abandonment of employee rights. Illustrated by a partial list of the scores of cases in which the NLRB, its regional offices, its administrative law judges, and its General Counsel processed charges and petitions, the school asked the Board how it could now reverse course and advise thousands of employees that they no longer enjoyed the protections of the NLRA.
On March 25, 2020, the NLRB issued its decision, determining “not to exercise its discretion to decline jurisdiction over charter schools as a class.” KIPP Academy Charter School, 368 NLRB No. 48.
In the final analysis, the Board appears satisfied to allow the status quo to remain. It seems likely that Board jurisdiction will continue to be extended. But, there are still many states’ laws which have not been subject to the Board’s analysis. Charter school operators in those states in which the Board has affirmatively found jurisdiction should be aware of employers’ rights and responsibilities under the law – which may significantly differ from state law. Employers in states not yet reviewed by the NLRB should be aware of the possibility that the state law they have operated under may change without notice – federal law generally provides a greater degree of protections to employees than states’ public sector labor laws.
The Atlantic Legal Foundation will continue to monitor the legal landscape for charter schools, and where appropriate, will extend support.
* The Foundation published separate editions of Leveling the Playing Field focusing on charter schools in New York, New Jersey, California, Michigan, and Massachusetts. Encouraged by the California Charter Schools Association, the ALF published an updated California edition in 2017. Leveling was authored in the main by Atlantic Legal’s Advisory Council member Tom Walsh and Advisory Council member emeritus Roger Kaplan. An updated New York Edition is currently in process for publication later in 2021.