Originally published in The American Prospect on February 13, 2019.
The National Labor Relations Board announced last week it would be accepting briefs on a case challenging its jurisdiction over charter schools, a matter that’s been settled for several years. Should the Republican-appointed majority rule that charter school employees are not covered under the National Labor Relations Act—thereby reversing two earlier Board rulings—that would leave employees in many states with no way to bargain collectively with their employers.
In 2016, in two decisions issued on the same day, the NLRB ruled that teachers at charter schools are private employees, concluding a charter’s relationship to the state resembled that of a government contractor. This position was affirmed last year by the Fifth Circuit Court of Appeals, when it rejected a New Orleans charter school’s argument that its teachers, who organized a union, were public employees. As there is no statewide collective bargaining law in Louisiana, the teachers would have been unable to negotiate with their employer had the charter school prevailed in court.
Now, however, the Republican-controlled NLRB might reverse this precedent, sending existing charter school unions into chaos, and potentially preventing other charter teachers, like those in Louisiana, from ever unionizing at all.
Ironically, this opportunity has come before the Board through a case from the United Federation of Teachers (UFT—the local teachers union in New York City), which asked the Board to relinquish jurisdiction because some charter school teachers want to decertify their union.
The decision to revisit the issue was made by three Trump appointees—Chairman John Ring, Marvin Kaplan, and William Emanuel. In their statement, they said they may “overrule precedent” on this issue, though pledged to “keep an open mind.” Lauren McFerran, an Obama appointee, dissented, saying the charter school question has been “well-settled.” She noted her colleagues identified “no specific reasons at all” for revisiting the issue.
To determine that charter teachers are private employees, the courts have relied on a 1971 Supreme Court case, NLRB v. Natural Gas Utility District of Hawkins County, where the justices found Hawkins County in Tennessee to be a “political subdivision”—and therefore public—since it met several key tests: It was created directly by the state, and was administered by individuals responsible to public officials or the general electorate. By applying this so-called “Hawkins test” to charter schools, the NLRB and other judicial bodies have concluded that the publicly funded, privately managed schools do not constitute political subdivisions—and hence, their labor relations are subject to NLRB jurisdiction.
In announcing their acceptance of the New York union’s case, the Republicans on the NLRB did not object to using this Hawkins test, and agreed the New York City charter school teachers in question were private employees. What they did say, however, was they wanted to reconsider whether the Board should have jurisdiction over charter schools because of Section 14(c)(1) of the National Labor Relations Act—which says the Board can decline to exercise jurisdiction over labor disputes when it considers the impact on commerce to be insignificant. In her dissent, McFerran said it “seems highly doubtful” that charter school labor disputes have an insubstantial effect on commerce, concluding “the majority’s notice is a solution in search of a problem.”
While most charter school union disputes have involved teachers who unionized and then struggled to negotiate their first contract with a recalcitrant employer, the NLRB in this case has granted review to a very different kind of charter labor conflict, involving an obscure fight taking place in the Bronx.
The drama began in 2016. In New York City, there are 13 charter schools operated by the Knowledge is Power Program, or KIPP, a national nonprofit charter network serving low-income students of color. While most KIPP schools, and most charter schools in general, are non-union, the Bronx-based KIPP Academy school is unionized. It is also one of a small handful of so-called “conversion charters” in the city, which means it formed originally by converting a traditional public school into a charter.
David Levin, the network’s co-founder, launched KIPP originally as a program within a New York City public high school in 1995, and in the spring of 2000, he applied to expand it from a program into the entire school. As part of his application to the city’s school chancellor, Levin submitted a copy of an agreement between the United Federation of Teachers and the school district that said any conversion charter school “shall be subject to collective bargaining agreements for like titles or positions … including but not limited to salary, medical, pension and welfare benefits and applicable due process procedures.” The agreement also said the charter’s board of trustees could negotiate changes to the collective-bargaining agreement.
When KIPP Academy Charter School launched in September 2000, all of its initial employees had been previously employed by New York City public schools, all had worked in the original KIPP program, and all had been represented by the teachers union. But the KIPP Academy teachers and the UFT had virtually no relationship for the next 16 years.
In 2016, though, about 20 KIPP educators approached the union to raise concerns about their working conditions. One of them was Fatima Wilson, a fourth-grade science teacher. “Our day runs from 7:20 in the morning to 5:15 in the afternoon, so we’re there for nine hours and 55 minutes a day, and most of the time there are no breaks,” she told me in 2017. Even going to the bathroom was a stressful experience. “We often have to hold it in, and risk urinary tract infections, kidney infections. This is life as we know it,” she had said.
Seeking to create a more livable and productive environment, as well as to reduce staff turnover, the teachers asked the UFT for help. In June of 2016 the union filed a grievance on behalf of the KIPP Academy teachers. When they received no response, the UFT filed for arbitration that November.
KIPP then filed for an injunction, and in a district court hearing later that month, KIPP’s lawyer argued that the UFT does not actually represent KIPP Academy teachers, as the union has not bargained any agreement, processed any grievance, or attended any meetings for KIPP teachers since the school opened in 2000. The judge rejected KIPP’s petition to thwart arbitration, concluding that none of those facts changed the reality that the UFT has “been deemed and not overruled” as the teachers’ bargaining agent since 2000.
At about the same time, KIPP administrators began talking to their teachers about disaffiliating with the UFT, prompting the union to file charges with the NLRB in January 2017. The union accused KIPP of violating federal labor law by encouraging teachers to decertify, and allegedly threatening teachers with loss of their jobs if they did not do so.
Some KIPP Academy teachers had tried to disaffiliate once before. In 2009, teachers at the school filed a petition to decertify their union, but under the law back then, KIPP teachers would have needed to garner a third of the entire New York City–wide bargaining unit—which included members in all the city’s public schools—to hold a decertification election. There were over 75,000 UFT members at the time. An administrative law judge in 2010 rejected the KIPP teachers’ petition as “numerically insufficient.”
After the UFT filed unfair labor charges against KIPP in January 2017, the charter network’s superintendent emailed his staff to say he “disagree[d]” that the UFT represented KIPP Academy teachers at all, both because of how the school has operated since it opened, and because “of recent changes to the law,” referring to the 2016 NLRB decisions that found charter teachers to be private employees. If KIPP teachers were private employees, his letter suggested, then the number of petition signers needed for UFT decertification might no longer be a third of the entire UFT bargaining unit, as it had been in 2010.
A few days later, some KIPP Academy teachers filed a new union decertification petition with the NLRB, and the regional hearings were held last May. At the proceedings, the UFT argued the federal labor board should disclaim jurisdiction over the KIPP teachers, drawing a distinction between conversion charter schools and regular charter schools. The union argued conversion charters would not pass the “Hawkins test” as a private institution (hence under the Board’s jurisdiction)—but that even if they did, the Board still should stay out of the dispute to preserve labor stability. The NLRB regional director rejected the union’s arguments in August, and also determined that the KIPP Academy teachers are a distinct group, independent of the citywide UFT bargaining unit. The path to decertification suddenly looked much easier.
In September, the UFT decided to appeal the regional director’s ruling to the national board, which it urged to disclaim jurisdiction over conversion charter schools in New York City. To make their case, the union cited an argument advanced by former Republican NLRB Board Member Philip Miscimarra, who had been the sole dissenting vote on the decision to treat charter school teachers as private employees. Miscimarra argued in 2016 that the NLRB should not get involved because those conflicts have an insubstantial effect on interstate commerce. “The same is true here, and the Board should decline jurisdiction over conversion charter schools established in New York, which, like [the school in 2016], have an insubstantial effect on interstate commerce,” the union wrote in its brief. The UFT also approvingly cited Miscimarra’s argument that regulating charter school labor relations would be better left to state and local governments—a position that might help workers in labor-friendly states like New York, but could leave them with no recourse at all in states that haven’t granted bargaining rights to public employees.
In October, KIPP’s lawyer, Thomas Walsh, filed a counter brief, noting that the UFT was requesting the federal labor board disclaim jurisdiction despite “the scores of cases from California to Connecticut” in which the NLRB and its regional offices have recognized that charter school teachers fall under their purview. He argued the union failed to assert “any compelling reason” for the Board to take this case up, and cited over 30 charter schools from 13 different states where teachers had been found to be protected under the National Labor Relations Act. “The [Hawkins’ test] principles have been applied identically across the entire country by the board, its regions, and by administrative law judges,” he wrote. “To reverse course now would be to disrupt the stability which has been years in the making.”
Dick Riley, a spokesperson for the UFT, told The American Prospect the union’s “attorneys are reviewing the decision and we expect to be filing a brief as the case goes forward.” He did not return a request for comment on the concern that an NLRB decision withdrawing jurisdiction could make it harder for some charter teachers, especially educators in states like Louisiana, to unionize.
Neither Thomas Walsh, nor a KIPP spokesperson, returned request for comment.
Randi Weingarten, the president of the American Federation of Teachers, told the Prospect that her union and state and local affiliates are reviewing the case “and seeking some basic consistency when it comes to the legal status of charter schools.” She said that charter operators are trying to have it both ways. “Some, like KIPP, profess they are public schools, yet they want to bypass public labor law when it comes to their employees,” she said. “When the shoe’s on the other foot they try to avoid their obligations and they are determined to be private sector employers under the NLRA. Educators at thousands of charters across the country deserve to know where they stand.”
If the federal labor board disclaims jurisdiction, accepting the argument advanced by the UFT and Miscimarra that a charter’s impact on commerce is too insignificant to warrant NLRB involvement, the fate of existing and future charter school unions is not yet clear. While all existing charter union contracts would remain in effect until they expire, some charter schools that previously recognized their staff’s union may decide they no longer need to. The question will then be if the teachers can turn to some state agency for relief.
In Washington, D.C., for example, the city’s collective bargaining law covers only local government employees, which charter school teachers are not. If they can’t organize under D.C. law, or federal law, they might have nowhere to go. The D.C. City Council could pass legislation expanding its collective bargaining law to include charter school teachers, but in a state like Louisiana, that would prove more difficult, as such states lack any collective bargaining statutes for workers not covered under the NLRA
Should the Board side with the UFT, it might then see more cases based on the nuances of charter employment. “I wouldn’t be surprised if some case would come along and the union would go to the NLRB and say we understand you won’t exercise jurisdiction over new cases, but this one was where you asserted jurisdiction that we had a right to bargain, so please enforce our rights to continue,” said Wilma Liebman, a former Obama appointee as NLRB chairman. “I’m not sure this particular Board would accept that argument, but I could see it being made.”
Or should a more sweeping ruling completely strike down the Board’s jurisdiction over charter school employees—well, the Board is increasingly known for its reversals as its partisan composition shifts. Liebman said it’s unfortunately common for NLRB precedent to change between administrations, especially over areas of employment that tend to be evolving, like those involving social media platforms. “Ideally it would be nice if the precedent didn’t vacillate, but the Board has been famous for decades for what formally is called ‘policy oscillation’ and what informally is called ‘flip-flopping,’” she said. “Any case where there was a Miscimarra dissent, those tend to be ripe for Trump-era Board to take up.”