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 employees.

“The charter schools argued they weren’t subject to NLRB because they are public entities," Matthew Curtin, an employment and labor law attorney with the Littler 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’ employees work. 

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. He wrote: 

“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.

 “These 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.”

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