Federal or State Jurisdiction

Over New York Charter School

Employees A Conversation
In 2005, Atlantic Legal Foundation published the rst of its
Leveling the Playing Field books, for New York charter school
operators, administrators and board members, introducing
them to state public employee relations law affecting labor
relations at these schools, and best practices to operate
freely and effectively in the face of these laws. This book was
followed by similar books for New Jersey, Massachusetts,
Michigan and California [www.defendcharterschools.org].
Each of these books contained a similar message: that with
sound employee relations, charter schools could operate in an
innovative, exible and education-driven environment, always
keeping the interests of students and their achievement upper-
most, without the need for union representation.
These books were co-authored by Roger Kaplan, Thomas Walsh
and other members of the Jackson Lewis law rm. Mr. Kaplan
also is a member of Atlantic Legal Foundations Advisory Council.
In 2012, however, the National Labor Relations Board, the
federal agency charged with administering labor relations
law applicable to private sector employers and employees,
changed the landscape. It held in Chicago Mathematics &
Science Charter Academy, 359 NLRB No. 41 (Dec. 14, 2012),
that an Illinois charter school was not a political subdivision
of the state, and therefore was not exempt from the coverage
of the National Labor Relations Act (NLRA). The Board based
its decision on its nding that despite receiving a large pro-
portion of its funding from state sources and being subject to
state education mandates, the school was not created by the
state, so as to constitute a department or administration area
of the government, or administrated by individuals either who
are responsible to public ofcials or to the general electorate.
Instead, the Board found the school was created by char-
ter applicants and run by a board of directors that operated
independently of public ofcials. Chicago Mathematics was
followed by another decision in Pennsylvania Cyber Charter
School, NLRB Case No. 06-RC-119003, 2014 WL 1390806
(2014) (not reported in ofcial bound volumes), reaching a
similar result, likening the school in that case to a government
contractor
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. Still, more recently, an NLRB Regional Director in
Brooklyn, relying on these cases, concluded that a New York
charter school also was subject to the National Labor Relations
Act and NLRB jurisdiction, despite arguments from a teachers
union seeking to represent the schools employees, that the
states Charter School Act and Public Employees Relations Act
(Taylor Law) constituted the school a public employer and that
its representation petition should be considered by the States
Public Employees Relations Board. Hyde Leadership Charter
School Brooklyn, NLRB Case No. 29-RM-12644 (May 28, 2014)
(request for review granted). The charter school in Hyde Lead-
ership was represented by Jackson Lewis Tom Walsh.
Charter school operators in New York and elsewhere under-
standably may be uncertain as to the signicance or conse-
quences of state labor law and labor relations board (PERB)
jurisdiction, or federal labor law and labor board (NLRB)
jurisdiction. Recently, Mr. Kaplan sat down with Mr. Walsh to
ask him how jurisdiction over charter schools by the state or
the federal government could affect the rights and obligations
of the schools and their employees. Here is their conversation:
Q. Mr. Kaplan: In your experience, Tom, why might a New York
charter school faced with union organizing among its staff and
a union demand for recognition as their representative prefer to
have the NLRB assert jurisdiction in the case, rather than PERB?
A. Mr. Walsh: The principal reason and its importance cannot
be overstated is that, under the NLRA, an employer may
insist on having the NLRB conduct a secret ballot election
among an appropriate unit of employees, so that employees
can freely choose whether they want union representation or
not, absent, in relatively few cases, an NLRB order based on
authorization cards signed by a majority of bargaining unit em-
BULLETIN
AUGUST 2014
ATLANTIC
LEGAL
FOUNDATION
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On June 26, 2014, the Supreme Court in NLRB v. Noel Canning Company, 572 U.S. __, 2014 WL 2882090 (Docket No. 12-1281), concluded that two of the four Board
members who decided Chicago Mathematics, Richard Grifn III and Janet Block, had been unconstitutionally recess-appointed, thus putting the authority of that decision in
question. The Board panel that later decided Pennsylvania Cyber, however, was conrmed by the Senate, so it appears that the rationale of Chicago Mathematics remains
viable despite the change of Board personnel. 1
ployees directing the employer to recognize and bargain with
the union because signicant employer misconduct has made
the possibility of a fair election unlikely.
Q. Mr. Kaplan: Wont PERB conduct an election, too?
A. Mr. Walsh: Only in certain circumstances which often are
absent. PERB in most cases will certify a union based merely
on authorization cards signed by a majority of employees in
the bargaining unit.
Q. Mr. Kaplan: Whats wrong with basing a certication on cards?
A. Mr. Walsh: Without an election, employees generally have
no timely opportunity to hear the employers side of the rep-
resentation issue. Unions will paint a rosy picture and make
promises to encourage employees to sign cards. Often, heavy
peer pressure and other forms of undue inuence cause em-
ployees to sign cards. Union organizers certainly arent going
to tell employees about the disadvantages of union repre-
sentation. So, when employees sign cards, they often dont
have the full picture. Frequently, employees in card check
certication cases say they never knew all the facts and if they
did, they might well have chosen not to support the union.
Yet, unions give those cards to PERB and get certied as the
employees representatives. Even in those rare cases in which
PERB holds an election, the vote is by mail, not an in-person
government-supervised secret ballot election. The potential
for undue pressure on voters and breaches of condentiality
are much greater with mail ballots.
With an NLRB election, the Board will afford employers a peri-
od of time in which they can discuss with employees facts, ex-
amples and opinions (often based on experiences elsewhere)
about the union and the possible impact on the school if it is
unionized. Then, employees can make up their mind and then
vote in private in a ballot booth, without others looking at them
as they vote or to see if they sign an authorization card. The
balloting usually takes place on the employers premises under
the supervision of an NLRB agent. In short, with an NLRB
election, there is a much greater possibility that employees will
be fully informed and decide knowingly whether or not they
wish to unionize.
Q. Mr. Kaplan: You mentioned bargaining units. What are those?
A. Mr. Walsh: Groupings of employees the NLRB (or PERB)
nds proper for collective bargaining purposes. The agencies
apply various criteria, often involving job duties and work loca-
tions, as well as the petitioners preference, in deciding what
may be appropriate.
Q. Mr. Kaplan: Are there any differences in the approaches tak-
en by the NLRB and PERB on this subject?
A. Mr. Walsh: One signicant difference is that the NLRB, under
the federal law, recognizes that supervisors should owe undi-
vided loyalty to their employer. It will exclude supervisors from
the unit and collective bargaining. A charter school would not
have to recognize union representation for these individuals.
But PERB will allow supervisors to be represented, as long as
they are in a different bargaining unit from the employees they
supervise. This can pose a real dilemma for charter school
employers who expect supervisors to represent their inter-
ests and enforce school policies, and who may want them to
express the schools concerns about union representation to
employees.
Q. Mr. Kaplan: Lets consider collective bargaining. Assume a
union is chosen to represent charter school employees. Would
NLRB jurisdiction make a difference to employers in contract
negotiations?
A. Mr. Walsh: It would. The NLRB, applying the federal law,
leaves parties pretty much to their own devices in collective bar-
gaining. While condential mediation may be arranged to help
resolve disputes, ultimately the parties must resolve their differ-
ences without government intervention. Under the states Taylor
Law, on the other hand, PERB requires mediation, followed by
fact-nding with a published report and recommendations, and
a public hearing to pressure the parties especially the em-
ployer to settle, where negotiations falter over a new collective
bargaining agreement and the parties reach an impasse.
Q. Mr. Kaplan: With the NLRB, does an employer have any other
options if it reaches an impasse in negotiations?
A. Mr. Walsh: It can unilaterally implement its last offer to the
union or a part of that offer assuming it has not acted unlaw-
fully during bargaining. PERBs so-called Triborough doctrine,
however, prohibits any unilateral modication of this sort.
Q. Mr. Kaplan: Lets say you run a New York charter school as
part of an organization that also operates charter schools in other
states. Might that affect your preference as to labor law coverage?
A. Mr. Walsh: It very well might. Employers operating in multiple
states may prefer to have a single uniform system of regula-
tion applicable to all their facilities, instead of a patchwork of
regulation based on individual state laws and agencies. NLRB
jurisdiction promotes consistency and predictability, which
larger employers tend to prefer.
Q. Mr. Kaplan: What if employees represented by a union no
longer wish to be represented? Are there any differences in
the way the NLRB and PERB might tackle this issue?
A. Mr. Walsh: Here, too, the NLRBs approach seems preferable.
The NLRB generally presumes a single establishment, such
as a single school, is an appropriate unit for bargaining, while
under the Charter Schools Act in New York, certain charter
schools those that are converted from a pre-existing public
school to a charter school will be deemed to be part of a
much larger district-wide unit in which the school is located
(assuming the school employees in that district are represent-
ed by a union).
Q. Mr. Kaplan: What is the signicance of this district-wide de-
termination?
A. Mr. Walsh: If employees ever want to decertify the union
as their representative, they will have an easier time with the
NLRB, since that agencys determination typically will be made
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based on a single schools employees constituting an appro-
priate unit. With PERB, the conversion schools employees
will be only a small part of a district-wide unit. It will be much
harder for charter school employees to dismiss a union; it
would require a majority vote of employees in the entire district
to decertify the union.
Q. Mr. Kaplan: Would state politics have anything to do with an
employers preference for the NLRB?
A. Mr. Walsh: There is a perception that charter school employ-
ers may get a fairer shake under federal law. The New York
Charter Schools Act was clearly inuenced by the teachers
union. That union may have less clout at the federal level.
That could help level the playing eld.
Q. Mr. Kaplan: To what extent can a charter school in New York
have a choice as to which law will apply?
A. Mr. Walsh: That is difcult to answer. Until now, there was no
choice and no question as to the applicable law: the Taylor
Law controlled. Now, the NLRB Regional Director in Brook-
lyn, applying the principles of the NLRBs decision in Chicago
Mathematics, has determined that the single school in ques-
tion in Brooklyn is covered by the federal law, not the Taylor
Law. But the Regional Directors ruling applies to that one
school. Since the Chicago Mathematics principles are to be
applied on a case-by-case basis, the same holding would not
automatically apply to all New York charter schools. Having
said that, however, the charter approval process and gover-
nance for other stand-alone, non-conversion schools is quite
similar, so NLRB jurisdiction over such charters could become
the de facto rule. Of course, all this depends on whether the
NLRB upholds the Regional Directors decision.
There is another thing to consider. PERB has held in abeyance
its representation proceedings on this charter school pending
a nal ruling from the NLRB. That could take a while. It is not
clear whether PERB would process cases regarding other
charter schools while it awaits word from the NLRB. Charter
employers who have pending PERB cases may want to ask
that agency to stay its hand in these cases, or seek NLRB
jurisdiction over the matter, or both. Charter operators should
seek guidance from labor counsel as to whether and how
to undertake these actions.
Q. Mr. Kaplan: Okay. Weve discussed some considerations that
a charter school might see as weighing in favor of choosing
federal, or NLRB, jurisdiction. Are there any considerations
that cut in the opposite direction that suggest a charter
school might remain content with PERB jurisdiction?
A. Mr. Walsh: Employees and their unions have more rights
under the NLRA than they do under the Taylor Law. Perhaps the
most obvious of these is that under the NLRA, there is no lim-
itation of the right of charter school employees to strike. Unions
can call strikes, for example, to enforce bargaining demands.
The Taylor Law bars strikes and imposes penalties for violations.
Employers also should be aware that the federal law protects
a wider range of employee actions than does the state law.
Under the Taylor Law, employers may not discriminate against
employees for union activity. However, the NLRB goes
further, guaranteeing employees the right not only to engage
in union activity, but also all forms of protected concerted
activity, even in the absence of a union.
Q. Mr. Kaplan: What is protected concerted activity?
A. Mr. Walsh: Activity that employees engage in together
peacefully for their mutual support, aid and protection, relating
to the terms and condition of their employment. It generally
requires that two or more employees act as one, or that an
employee takes steps to enlist support of other employees for
such activity. The NLRB protects this conduct from interfer-
ence by employers. A single employee acting only on his or
her own behalf doesnt qualify.
Q. Mr. Kaplan: That sounds like it can cover a pretty broad
range of conduct. Can you give us some examples where the
NLRB found a violation involving protected concerted activity?
A. Mr. Walsh: These cases often involve employer policies or
rules that restrict employees from acting or expressing them-
selves in certain ways.
Heres one example: The NLRB found unlawful an employers
courtesy policy that barred employees from using disre-
spectful language and language that injures the reputation
of the employer. The Board felt this could inhibit employees
from voicing criticism of management or supervisors, or from
protesting their working conditions.
Another example: the NLRB found a violation of the NLRA
where an employers blanket rule prohibited employees from
discussing with one another internal complaints that were
under investigation by the employer. The Board felt these
matters involved employees terms and conditions of employ-
ment, and that employees should be allowed to discuss them.
It decided the employer would have to justify this prohibition in
particular cases using criteria it established.
Q. Mr. Kaplan: What about an employers interest in keeping
business-related information and issues from being discussed
outside the organization? That seems understandable. Has
the NLRB addressed that?
A. Mr. Walsh: It has, and unfortunately, the NLRB in many cases
has faulted employers rules to that effect. In one instance,
the Board considered a rule that said employees could not
disclose personnel information and documents to persons
outside the organization. Concluding that employees would
understand the rule to bar them from discussing wages or oth-
er terms or conditions of employment with non-employees, the
Board found it interfered with their statutory rights.
Q. Mr. Kaplan: Do these restrictions cover employee emails,
texts, posts and tweets in electronic communications, too?
A. Mr. Walsh: Yes. Employee speech in electronic media may be
protected.
Q. Mr. Kaplan: What about policies barring contact with the me-
dia without the employers prior authorization?
A. Mr. Walsh: Same thing.
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Q. Mr. Kaplan: Does the NLRB have any standards for address-
ing these employer rules?
A. Mr. Walsh: Yes. If the rules on their face interfere with employee
rights, or were implemented in response to employees protected
activity, or if they could reasonably be interpreted by employees
as interfering with or restraining their ability to engage in protect-
ed concerted activity, they could be found unlawful.
Q. Mr. Kaplan: Tom, apart from labor relations, could New York
charter schools, be affected in other ways as a consequence
of any decision involving NLRB or PERB jurisdiction?
A. Mr. Walsh: Several come to mind, and the answers here are
by no means settled. One of these involves co-location a
subject that became embroiled in recent mayoral politics in
New York City. Some charter schools share facilities with tradi-
tional public schools. If a charter school is found by the NLRB
not to be a political subdivision, could some politicians in-
crease pressure to evict them from these underutilized school
buildings? We dont know. Given the fact that the NLRB is
concerned only with labor relations and not the entire political
and structural relationship of charter schools, it is possible this
concern would not be considered by the NLRB.
Q. Mr. Kaplan: New York public school construction has to com-
ply with the states Wicks Law. The law requires the hiring of four
separate contractors general, electrical, HVAC and plumbing
instead of one general contractor who is responsible for obtain-
ing the necessary subcontractors. Would the Wicks Law still be
applicable to charter schools subject to NLRB jurisdiction?
A. Mr. Walsh: That, too, is unclear. The Wicks Law adds cost to
construction work. The New York State School Boards Association
would like to see the law repealed. An interesting note is that the
states highest court has ruled the New York prevailing wage law for
public works does not apply to charter school contractors proj-
ects, since the schools are considered educational corporations
rather than public entities, and charter school agreements are not
contracts for public work involving the hiring of workers covered by
the law. So perhaps, by analogy, the Wicks Law might not apply.
However, a bill has been introduced in the New York legislature to
overrule this prevailing wage case. I think well have to wait.
Q. Mr. Kaplan: Some charters, not only those in New York, have
expressed concern over a proposal oated by the Internal
Revenue Service to exclude from government plan status
any retirement plan not maintained by a government entity
such as a political subdivision of a state. They worry that this
rule, if adopted, could cause problems under the federal tax
code for charter school retirement plans, if NLRB jurisdiction
prevails. Your thoughts?
A. Mr. Walsh: IRS published an advance notice of proposed
rulemaking on this issue three years ago. However, further
action has not yet been taken; there is not even a formally pro-
posed rule yet. We shouldnt get too far ahead of ourselves.
One might assume that the IRS is not going to do anything
precipitous that would cause harm to a lot of schools and their
employees. If it does make changes, IRS probably would
make some transitional rule to ease the changeover. And it will
probably take time if it happens at all.
Q. Mr. Kaplan: Tom, do you see NLRA coverage as affecting
the personal liability of trustees, or possibly ofcers, of charter
schools, for moneys paid by the state to support the schools?
A. Mr. Walsh: I dont think there would be much change in that
area. The NLRB has recognized the dependence of these
schools on state funding, even where it has found jurisdiction.
It is unlikely, in my view, that trustees will have any greater or
less nancial responsibility for their conduct.
Q. Mr. Kaplan: Tom, do you believe NLRB jurisdiction would
have any effect on the growth of charter schools, generally?
A. Mr. Walsh: To the extent NLRB jurisdiction provides a labor
relations framework that fosters, or at least refrains from inhib-
iting, innovation, creativity and exibility, these schools should
ourish. Parents, students and educators will continue to be
attracted to these schools. They must continue to work to
make sure their voices are heard to encourage a good environ-
ment for charter school education. And lets be honest. One
of the reasons charter schools exist is to offer an alternative to
traditional public schools that are perceived to be encumbered
by bureaucracy, union contracts and oppressive rules. To the
extent that the NLRA gives charter employers and employees
greater opportunity to engage in real dialogue and to make
a democratically informed choice that may result in avoiding
unionization, it may be seen as promoting the innovation that is
at the heart of the charter movement.
Roger S. Kaplan is a shareholder of Jackson Lewis P.C. in the Firms Long Island, NY
office. Thomas V. Walsh is a shareholder in the Firms White Plains, NY office. Mr.
Kaplan can be contacted by email at kaplanr@jacksonlewis.com, or by telephone at
(631) 247-0404. Mr. Walsh can be contacted by email at walsht@jacksonlewis.com,
or by telephone at (914) 872-6000.
Jackson Lewis is dedicated to representing management exclusively in workplace law
and has over 770 attorneys practicing in 55 locations throughout the U.S. and Puerto
Rico, Jackson Lewis is included in the AmLaw 100 and Global 100 rankings of law
firms. The firms wide range of specialized areas of practice provides resources to
address every aspect of the employer/employee relationship. Jackson Lewis has one
of the most active employment litigation practices in the United States. For further
information, visit www.jacksonlewis.com
The Atlantic Legal Foundation is a nonprofit, nonpartisan public interest law firm
with a history of advocating for individual liberty, limited, efficient government, free
enterprise, sound science in the courtroom and school choice. Atlantic Legals work
regarding school choice is focused on supporting charter schools. Atlantic Legal
provides legal representation, without fee.
The Foundations leadership includes current and retired chief legal officers of some
of the nations largest corporations, partners of major law firms and distinguished
scientists and educators. The Foundations work is highlighted at www.atlanticlegal.org.
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