Charter School Teachers Organizing Under Federal Labor Law

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By Michael Rose

April 12 — Although public charter schools are funded with government money and are often thought of as public entities rather than private employers, an increasing number of charter school teachers are forming unions under the National Labor Relations Act, which governs union organizing in the private sector.

In recent weeks, the American Federation of Teachers has won representation elections at charter schools in Cleveland and Chicago, the union announced. Both elections were supervised by the National Labor Relations Board.

At University of Cleveland Preparatory School, 22 of 27 eligible teachers voted for representation by an AFT affiliate March 16, and the NLRB certified the results of the election March 28. The initial petition for an election was filed in May 2014.

UCP is part of the I CAN SCHOOLS network, which also operates the Northeast Ohio College Preparatory School, where an NLRB regional director March 30 issued an unfair labor practice complaint against the employer related to the AFT's organizing efforts.

The complaint alleges that the employer “coercively increased the scrutiny of employees performing their work because of their union sympathies and activities,” among other things.

Separately, teachers at Passages Charter School in Chicago voted in favor of AFT representation March 31. That unit will consist of 46 teachers, support staff and clinicians, the union said, with about 80 percent of them voting for the union.

Seminal 2012 Decision

Although the AFT began organizing teachers about 10 years ago, it's only been since late 2012 that there's been an uptick in organizing under the NLRA.

One of the first major cases in which the NLRB asserted jurisdiction over a public charter school was Chicago Mathematics & Science Academy, 359 N.L.R.B. No. 41, 194 LRRM 1321 (2012) .

In that case, although the AFT argued that teachers at the school ought to be organized under the auspices of the Illinois Educational Labor Relations Board, the NLRB found that they were subject to the NLRA.

Since then, the AFT has had a number of other successes organizing under the NLRA, in Chicago and other cities.

AFT President Randi Weingarten told Bloomberg BNA that in Illinois the union originally sought to organize under state law. However, it was forced to organize under the NLRA when “union busting firms that the employers hired to stop our organizing efforts” sought to change the venue to the NLRB, she said.

‘Whatever Entity Claims Jurisdiction.'

“What has happened is that we've decided that when teachers really want a voice, to just organize under whatever law is operational,” Weingarten said.

In many states, she said, laws specify that charter schools should be considered public schools.

“But then as soon as we start organizing, these same charter operators who in one breath say it's a public school, in the other breath say when it comes to school teachers, it's private, not public,” Weingarten said.

“Every day that teachers' voices are stymied is a day that the anti-union forces win. So that's why instead of just waiting for the courts to make this decision, we have tried to organize under whatever entity claims jurisdiction,” she said.

Charter school teachers are motivated to organize for many of the same reasons as those at public schools, such as class size, teacher autonomy and discipline, Weingarten said.

But teachers at charter schools “have some of the challenges that you see in the private sector, because of the lack of transparency” on the part of the employers, she said.

Charter school operators often seem to want to treat teachers “as if they're cogs in the wheel,” Weingarten said. “They get threatened continuously because of their at-will employment.”

Result of Broader Privatization

The growth of charter schools as venues for private sector union organizing is related to a broader trend toward privatization of formerly public entities and subcontracting of public services, Risa Lieberwitz, a professor of labor and employment law at the Cornell University School of Industrial and Labor Relations, told Bloomberg BNA.

“In the charter school question, we're seeing that broader political issue manifesting itself,” Lieberwitz said. The choices that unions and employers make about how to organize “are being made on the terrain where privatization has made changes in what used to be clearly public entities,” she said.

In some states, laws are specific when it comes to how charter school teachers should be treated for organizing purposes. For example, in Maryland, charter school teachers must be covered by districtwide collective bargaining agreements that cover teachers at regular public schools.

Complicated Jurisdictional Issues

But in other cases, Lieberwitz said, “there may be situations where it's not clear” whether federal or state law applies.

She also observed that precedent for charter school organizing may be in flux in the coming years because the Chicago Mathematics case was thrown into question by the U.S. Supreme Court's decision in NLRB v. Noel Canning, 134 S. Ct. 2550, 199 LRRM 3685 (2014), which found some of President Barack Obama's recess appointments to the board unconstitutional .

Lieberwitz noted that in a subsequent decision, Pennsylvania Cyber Charter School, NLRB, No. 06-RC-120811, unpublished 2014, the board relied on the same logic as in the Chicago case.

However, noting that it was an unpublished decision and not precedential, Lieberwitz said there could be additional litigation to come on charter school jurisdictional issues.

Smaller Number of Schools Organized

The number of unionized charter schools remains small, even when schools organized under state labor laws are included, said Todd Ziebarth, senior vice president of state advocacy and support at the National Alliance for Public Charter Schools.

About 10 percent to 12 percent of all charter schools are unionized nationwide and most of those are “conversion schools,” or schools that previously were regular public schools that were converted to charter status, he told Bloomberg BNA.

Ziebarth said his organization generally does not take a pro-union or anti-union tack. Rather, management at a given school evaluates on a case-by-case basis whether it thinks a union would be appropriate, he said.

“Part of the whole concept of charters is to free up schools from state and local laws and regulations, and part of that is collective bargaining agreements,” Ziebart said.

He acknowledged that “charter teachers are free to organize” but said “the number of nonunion schools that are open and opening far exceeds the occasional success” unions have in organizing.

Hawkins Test

The NAPCS takes the position that charter school contracts should be bargained at the school level, rather than having teachers covered under a districtwide contract, Ziebarth said.

To evaluate whether a charter school is a public or private employer, Ziebarth pointed to the test set out by the Supreme Court in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600, 77 LRRM 2348 (1971), for whether an entity is a “political subdivision” of a state government that would be excluded from coverage under the NLRA.

Hawkins found that an entity may be considered exempt if it is administered by individuals who are responsible to public officials or the general electorate.

“We've taken the position and continue to take the position that the facts and circumstances of each case should determine whether it meets the Hawkins test,” Ziebarth said.

“If a group of teachers is unhappy and choose to organize, they should have the right to do that, but we would look at that and make sure the contract respects flexibility and accountability,” he said.

Right to Strike

Daniel DiSalvo, a professor of political science at City College of New York who has studied public sector unions, told Bloomberg BNA that there is really only one potential advantage to a union seeking to organize under the NLRA rather than state law—the right to strike.

In many states public sector employees, including teachers, don't have a right to strike, but charter school teachers organized under the NLRA would be able to do so.

“That would be one more tool in [unions'] toolbox that public employees don't have,” DiSalvo said, calling it “probably the biggest and most immediate advantage” that a union would see from organizing a charter school.

Employers Respond

As for the schools in Cleveland and Chicago where the AFT recently won elections, the charter school operators in both cases said they didn't oppose the teachers' efforts.

Michael J. Bakalis, president of American Quality Schools, which operates Passages Charter School in Chicago, told Bloomberg BNA that the employer remained neutral during the election. The employer believes in the democratic process and teachers' “participation in a vote was what democracy is all about,” he said.

In a statement provided to Bloomberg BNA, I CAN SCHOOLS said it “supports the teachers in their decision” to form a union at University of Cleveland Preparatory School. “We are committed 100 percent to ensuring they receive the tools necessary to excel in the classroom, develop professionally, and fulfill the mission for the success of the scholars.”

However, in its announcement of its election win at UCP, the AFT said several teachers at the school had been fired in retaliation for union activity but were later reinstated after the union filed unfair labor practice charges with the NLRB and the agency issued a complaint.

In response to the NLRB's complaint against Northeast Ohio College Preparatory School, the same charter network said it looks forward “to moving through the processes ahead regarding the allegations made in the complaint, and returning our focus to our scholars.”

Officials with the National Education Association, the nation's other major teachers' union, weren't available to comment for this story.

To contact the reporter on this story: Michael Rose in Washington at mrose@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Text of the complaint issued against Northeast Ohio College Preparatory School is available at http://src.bna.com/d2U.