WASHINGTON – The National Labor Relations Board (NLRB) decided in two separate cases
Aug. 24 that although publicly funded, the Hyde Leadership Charter School in
Brooklyn, New York, and the Pennsylvania Virtual Charter School, based in King of Prussia, are private corporations subject
to the National Labor Relations Act (NLRA).
“Private corporation[s] whose governing board members are privately
appointed and removed” is what the NLRB ruled both schools to be. In its determination, the board compared charter
schools to government contractors, which are considered private corporations
that receive taxpayer dollars.
It reached its conclusion based on the facts
that neither school was created by a state or administered by individuals who
are responsible to public officials or the constituency.
The NLRB’s determination allows the schools’ employees to organize unions
under the NLRA, which applies to private-sector employees, unlike
unionization efforts governed by state laws that apply to public sector
“The charter schools argued they weren’t subject to NLRB because they are
public entities," Matthew Curtin, an employment and labor law attorney with
law firm, told the Pennsylvania Record.
“Under federal law, there is a specific test to determine
public and private entities. The effects of these decisions aren’t immediately
clear, but I think what is clear is this is not the last decision about it.”
Curtin explained that the Aug. 24 NLRB decisions only apply to these two schools and only decide the type of labor laws under which the two charter schools’
These narrowly scoped decisions could potentially create more
issues as a result, which is the message strongly conveyed by one dissenting
member of the NLRB.
Board member Philip Miscimarra said in his dissent that the policy of the NLRB is to produce a
single uniform national rule to displace the variegated laws of several states.
“The most that could result from Board efforts to exercise
jurisdiction over charter schools will be a jurisdictional patchwork — where federal
jurisdiction exists here and state jurisdiction exists there, depending on how
the ‘political subdivision’ question is resolved — with substantial uncertainty
for employees, unions, employers, and state and local governments.”
Curtin weighed in on Miscimarra's dissent.
“The purpose of the dissent was that (Miscimarra)
thought it would be better for the NLRB to decline jurisdiction so there would
be more uniformity in charter schools," Curtin said.
"This ruling only applies to these two
schools. It doesn’t create a decision statewide in either case. So rather than
assessing on a case-by-case basis, it would be better for NLRB to decline
jurisdiction over all charter schools to foster stability of labor relations.”
Curtin said charter schools are relatively new, having
only emerged in the last 25 years. He said each state varies in its
establishment and funding.
Curtin said he believes the purpose of the dissent is to
expose that the decision could lead to more problems because it still leaves charter
schools guessing whether they are subject to the jurisdiction of NLRB. There is
legal uncertainty as to whether federal laws apply going forward, he said.
decisions do not have a national or state impact," he said. "If other charter schools in (Pennsylvania
or New York), or other states, are seeking to organize, or are seeking
protection under the NLRB, they would likely need to have a determination to
see if they fall under the NLRB.”