The U.S. has more than 6,000 charter schools. They are authorized in almost every state. While state laws vary, their purpose is the same: to permit alternatives to traditional public schools, unbound by local school districts or district-wide collective bargaining agreements that can stifle innovation.

These laws frame charters as public schools, subject to the usual educational goals and regulations. While publicly funded, each school is initiated by private individuals, rather than a public entity. Founders apply for a charter to an authorizing body (usually a government entity). If granted, the school is governed by a board of trustees comprised of private individuals. The state does not appoint trustees and has only attenuated power to remove them.

Most states provide collective bargaining rights for public employees. A few do not. However, Section 7 rights for protected concerted activity enjoyed by private sector employees under the National Labor Relations Act have not been applicable. By statute, a “state or a political subdivision” cannot be a covered “employer” under the Act. Thus, it was assumed that charters’ labor relations would be governed by whatever state labor law applied to public schools.

However, in 2012, the National Labor Relations Board returned to an old standard affirmed by the Supreme Court where an employer is deemed a “state or political subdivision” if it is (1) created directly by the state to be a department or administrative arm, or (2) administered by individuals who are responsible to public officials or to the general public.

Under this standard, if the school was not initiated by a government official or entity, its leadership is not appointed by the state, and its trustees are removable only by the state in unusual circumstances, the school is not exempt from the NLRA as a public entity. The Board and its regional offices consistently have held since 2012 that charters in Arizona, California, Connecticut, Illinois, Louisiana, Michigan, Minnesota, New York, Ohio, Oregon, Pennsylvania, Tennessee, and the District of Columbia are subject to the NLRA. Indeed, since 2012, there have been no cases in which the Board failed to find NLRA jurisdiction over a charter school.

Until now.

In LTTS Charter School, 366 NLRB No. 38 (Mar. 15, 2018), an individual employee filed an unfair labor practice charge against her charter school employer, alleging retaliation against the employee for engaging in protected concerted activity. Based on the growing body of Board cases, the regional director found NLRA jurisdiction and issued a complaint. After a trial, an NLRB administrative law judge found the Act did not confer jurisdiction over the school. The Board upheld the decision and dismissed the case.

Texas charter school law differs from other states’. Commonly, under certain circumstances, a state may remove members of school governing bodies; but Texas law permits the state to disband and reconstitute the membership – including appointing new members. This distinction was enough for the Board to find the school’s leadership was “responsible to public officials.”

Thus, Texas law, not the NLRA, governed the employment relationship, and Texas law does not recognize public employees’ rights to engage in concerted activity or to unionize.

LTTS applies only where this Texas law applies. Other states articulate government oversight differently. Charter schools (at least outside Texas) should note that NLRB jurisdiction remains the law in some states (and possibly in states in which the issue has yet to be tested). Schools interested in reviewing the potential for Board jurisdiction (or in considering a challenge to jurisdiction) should consult counsel.

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Photo of Thomas V. Walsh Thomas V. Walsh

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments in the Weingarten Doctrine, The Board Shifts to the Right,” for the St. John’s University Journal of Legal Commentary. He is also co-author of the Atlantic Legal Foundation’s series “Leveling the Playing Field – What Charter School Leaders Need to Know About Union Organizing.” Mr. Walsh is a member of the New York State Bar Association and of the American Bar Association, and participates in the labor and employment law sections of both organizations.

Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.