Earlier this month, the National Labor Relations Board announced that it again would wade into the murky waters of whether charter schools are employers under the National Labor Relations Act.  The question that the Board has put before itself this time, however, is different and potentially much more significant than it previously has posed in considering the status of charter schools.

Background

In 2016, the Board first asserted jurisdiction over charter schools in Hyde Leadership Charter School-Brooklyn and Pennsylvania Virtual Charter School.  The Act’s definition of employer under Section 2(2) explicitly excludes states and their political subdivisions from the Board’s jurisdiction.  The Board held that charter school cases required a case-by-case application of its longstanding Hawkins County test to determine whether the school at issue was a political subdivision under state law and therefore not an employer under the Act.

The case now before the Board involves a decertification petition filed by teachers at the Kipp Academy Charter School in New York City.  The union representing the Kipp Academy teachers, United Federation of Teachers, Local 2 AFT, opposed the decertification election on two grounds: (1) that Kipp Academy is excluded from the Act’s definition of employer as a political subdivision of the state of New York and (2) that there are public policy grounds to exclude all charter schools from the Board’s jurisdiction, regardless of whether they meet the definition of a political subdivision or not.  The Regional Director disagreed with the union on both grounds and ordered the decertification election to go forward.  The union asked the Board to review the Regional Director’s decision.

Board’s decision

On February 4, a majority of the Board voted to grant the union’s request to review the Regional Director’s decision to allow the decertification election to go forward.  The Board left in place the Regional Director’s finding that under Hyde Leadership and Pennsylvania Virtual the Kipp Academy charter school is not a political subdivision of the state.  Instead, the Board invited the parties and amici to file briefs on whether to overrule those cases and create a categorical exclusion from the Act’s jurisdiction for charter schools under Section 14(c)(1).  Member McFerran strongly dissented from the Board’s grant of review.

Analysis

The usual scorecards for figuring out which side in a Board case is “pro-union” and which is “anti-union” are useless in these charter school cases.  For example, in this case, the union is advocating to take the federal guarantee of collective bargaining rights away from workers and the Republican Trump Board members have halted a decertification election.  These sides make sense, however, when considered in the context of what the alternatives are for charter school teachers.

In trying to get charter school teachers out from under the NLRA, the union is not hoping to deprive them of collective bargaining rights.  Instead, the union wants charter school teachers to be able to organize and bargain under the state collective bargaining law that governs public school teachers.  It is easy to see how state statutory schemes could be more attractive than the NLRA.  For example, New York public sector labor law allows workers to form a union by card check, while federal law requires elections.

So, why are Republican Board members, who have proven themselves to be quite hostile to collective bargaining rights, aligning with the union in Kipp Academy.  They may see the odds differently.  While they may have to forestall decertification of the union in this case, they could be clearing the way for thousands of teachers around the country to be left with no collective bargaining rights.  If the Board was to categorically exclude charter schools from the Act’s jurisdiction, teachers in blue states may get an easier path to unionization under state law, but teachers in red states may be left without any right to organize, if their state laws do not provide one.

Even more alarmingly, the Board majority may be playing a longer game to deny even more workers collective bargaining rights.  The Board has been very hesitant to exercise its discretion under Section 14(c)(1) to exclude workers from the Act’s protection.  Exclusion under Section 14(c)(1) requires the Board to find that the labor dispute’s impact on interstate commerce is likely to be insignificant.  The Board has declined jurisdiction under this section only for horseracing and dog racing industries.  In the cases that predated the Board’s rulemaking on the racing industry exclusion, the Board relied in part on the “unique circumstances” of that industry to justify the exclusion, holding that the pattern of short-term employment minimized the impact on commerce and presented enforcement challenges.  Those conditions do not pertain to the charter school industry and therefore those cases provide no support for a similar exclusion.

A closer analogy is how the Board dealt with the request to use its discretion under Section 14(c)(1) to decline jurisdiction over TSA agents who worked for private contractors.  In Firstline Transportation Security, 347 NLRB 447 (2006), the Board rejected the employer’s argument that the Board should create a categorical exclusion for TSA agents, noting that it had repeatedly rejected similar requests for a national security exclusion.  In Firstline, the Board noted that “prudence cautions against crafting . . . a broad” exception. The Board took the position that only Congress could author such a wide deprivation of workers’ rights.  Similarly, the Board in San Manuel Indian Bingo & Casino rejected the request by tribal employers to create a categorical exemption for tribal-run businesses under Section 14(c)(1), noting that tribal enterprises were “playing a an increasingly important role in the Nation’s economy.”  341 NLRB 1055, 1062 (2004).  Instead, the Board adopted a policy of reviewing on a case-by-case basis whether a tribal enterprise was fulfilling a traditional tribal function and therefore should be excluded from the Act’s jurisdiction.

There are now almost three million students enrolled in almost seven thousand charter schools.  Finding that a labor dispute in an industry that big is not likely to have a significant impact on interstate commerce would constitute a pretty radical departure from the Board’s traditional interpretation of “significance” under Section 14(c)(1).  It could open the door to more frequent exercise of the Board’s Section 14(c)(1) discretion.  No doubt, more employers would make such requests.  Likely next requesters could be tribal employers or employers engaged in public-private partnerships.

With a different Board, this situation could be a test of how a relaxation of NLRA preemption could work.  One could imagine the Board declining jurisdiction over charter schools in those states where the state public sector collective bargaining law was at least as protective of teachers’ rights as the NLRA and asserting jurisdiction where the law was inferior.  (Admittedly, it is unclear whether such a scheme would be lawful under the Act, but it certainly would be interesting to see the Board try it.) Sadly, however, there is no reason to believe that the majority of the Trump Board would be willing to undertake such an experiment.  The much more likely interpretation of their action is that they are betting it is another avenue to deny workers voice in a large and growing sector of the economy.