An interesting question is now pending before the National Labor Relations Board (“NLRB”): Are labor disputes at charter schools “sufficiently substantial” to effect interstate commerce? If the answer is yes then the National Labor Relations Act (“NLRA”) – the federal law that guarantees most private-sector workers’ collective bargaining rights – will continue to apply to charter schools. If not, then charter schools will not be subject to the NLRA and charter school employees will be subject to whatever protections they may have under their respective state’s collective bargaining laws, if any.

The NLRB’s ultimate decision on this question may impact Connecticut’s charter schools more than you might think. While state law (Conn. Gen. Stat. § 10-66dd) explicitly grants certified school employees (i.e. teachers and administrators) collective bargaining rights, the law is less clear for non-certified charter school employees. Whether such non-certified employees are covered by the Municipal Employees Relations Act (“MERA”) is an open legal question. This is important because if such employees are not covered by MERA then whatever the NLRB decides on the “sufficiently substantial” effect on interstate commerce question above could be a big deal for Connecticut’s charter schools.

KIPP Academy NLRB Case

Back in February the NLRB issued an order granting review of an August 2018 decision by the regional director from the NLRB’s Region 2 in New York. The case decided by the regional director – KIPP Academy Charter School, Case No. 02-RD-191760 (2018) – involved a petition by two teachers at a KIPP charter school in the Bronx that sought to decertify their existing union as the exclusive bargaining representative.

The union – the United Federation of Teachers, Local 2 – filed a motion seeking to dismiss the decertification petition on several grounds, one of which was that the NLRB should decline to exercise jurisdiction over the case pursuant to a provision in the NLRA (Section 14(c)(1)) that allows the NLRB to decline jurisdiction when it determines that labor disputes among a category or class of employers does not have a sufficiently substantial effect on interstate commerce to warrant NLRA jurisdiction.

The regional director denied the union’s motion to dismiss, but the union then filed a request for review by the NLRB which, somewhat surprisingly given the NLRB’s prior charter school rulings, agreed to review the case. As a result, the NLRB is now poised to determine whether it should decline jurisdiction over charter schools on a general/class-wide basis.

Prior NLRB Charter School Rulings

Prior to the NLRB’s order granting review of the regional director’s decision in KIPP Academy the question of whether the NLRA applied to charter schools seemed to have been decided. Back in 2016, the NLRB ruled in two cases – Hyde Leadership Charter School-Brooklyn, 364 NLRB No. 88 (Aug. 24, 2016) and Pennsylvania Virtual Charter School, 364 NLRB No. 87 (Aug. 24, 2016) – that charter schools are in fact employers subject to the NLRA so long as they do not constitute a “political subdivisions” of a state.

In Hyde Leadership and Pennsylvania Virtual cases the then Obama-era NLRB looked to prior NLRB precedent to hold that if a charter school is not “either (1) created directly by the state so as to constitute a department or administrative arm of the government, or (2) administrated by individuals who are responsible to public officials or the general electorate,” Hyde Leadership Charter School-Brooklyn at 3, then the school is not a political subdivision of the state and may be subject to the NLRB.

According to the NLRB, charter approval of Hyde Leadership and Pennsylvania Virtual by the governments of New York and Pennsylvania did not detract from the fact that the schools were in fact created by the private individuals who established their governing documents and submitted their charter applications. Moreover, according to the NLRB, the fact that New York and Pennsylvania have oversight over charter schools did not mean that the schools’ administrators were responsible to public officials. To this end, the NLRB analogized charter schools to government contractors who are routinely found to be subject to the NLRA.

Notably in addition to finding that these charter schools were not exempt from the NLRA as political subdivisions, the NLRB also expressly rejected a claim that it should decline jurisdiction on the grounds that charter schools as a class do not have a sufficiently substantial effect on interstate commerce — the exact question the NLRB in KIPP Academy is now revisiting.

What Does it Mean for Connecticut Charter Schools?

As noted above, Conn. Gen. Stat. § 10-66dd explicitly provides that certified staff at charter schools have collective bargaining rights pursuant to Connecticut’s Teacher Negotiation Act and further provides that state charter schools act as boards of education for purposes of collective bargaining. That law also states that certified staff at local charter schools are members of the teachers or administrators bargaining unit for the local or regional school district in which the charter school is situated.

However the collective bargaining status for non-certified employees (i.e. paraeducators, secretaries, custodians, cafeteria workers, nurses, etc.) is much less clear. The Connecticut State Board of Labor Relations has yet to issue a decision addressing whether such employees are covered under MERA, and there is good reason to believe that if and when the Labor Board has the opportunity to address the question it will find that such employees are not covered. MERA only applies to “municipal employers” a term that refers to political subdivisions of the state. If the NLRB found that charter schools are not political subdivisions will the Labor Board?

If non-certified employees are not covered by MERA then the NLRB’s decision in KIPP Academycould have pretty big stakes, since the NLRB’s denial of charter school jurisdiction would effectively leave Connecticut’s non-certified charter school employees without collective bargaining rights. Stay tuned.