atlantic legal august 2014 bulletin

8/11/2019 Atlantic Legal August 2014 Bulletin

1/4

Federal or State JurisdictionOver New York Charter SchoolEmployees A Conversation

In 2005, Atlantic Legal Foundation published the first 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, flexible 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 Walshand other members of the Jackson Lewis law firm. 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 ChicagoMathematics &

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 finding that despite receiving a large pro-

portion of its funding from state sources and being subject tostate 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 officials 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 officials. Chicago Mathematicswas

followed by another decision in Pennsylvania Cyber Charter

School, NLRB Case No. 06-RC-119003, 2014 WL 1390806

(2014) (not reported in official bound volumes), reaching a

similar result, likening the school in that case to a governmen

contractor1. Still, more recently, an NLRB Regional Director in

Brooklyn, relying on these cases, concluded that a New Yorkcharter school also was subject to the National Labor Relatio

Act and NLRB jurisdiction, despite arguments from a teacher

union seeking to represent the schools employees, that the

states Charter School Act and Public Employees Relations A

(Taylor Law) constituted the school a public employer and tha

its representation petition should be considered by the State

Public Employees Relations Board. Hyde Leadership Charter

School Brooklyn, NLRB Case No. 29-RM-12644 (May 28, 201

(request for review granted). The charter school in Hyde Lea

ership was represented by Jackson Lewis Tom Walsh.

Charter school operators in New York and elsewhere under-

standably may be uncertain as to the significance 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 obligation

of the schools and their employees. Here is their conversatio

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 t

have the NLRB assert jurisdiction in the case, rather than PERB

A. Mr. Walsh:The principal reason and its importance canno

be overstated is that, under the NLRA, an employer mayinsist 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

BULLETINAUGUST 201

1On 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 Griffin 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 confirmed by the Senate, so it appears that the rationale of Chicago Mathematics remains

viable despite the change of Board personnel. 1


2/4

ployees directing the employer to recognize and bargain with

the union because significant 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 certification 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 influence 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

certification 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 certified as theemployees 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 confidentiality

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. Theballoting 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)

finds 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 significant 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 the

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. Wou

NLRB jurisdiction make a difference to employers in contractnegotiations?

A. Mr. Walsh: It would. The NLRB, applying the federal law,

leaves parties pretty much to their own devices in collective ba

gaining. While confidential mediation may be arranged to help

resolve disputes, ultimately the parties must resolve their differ

ences without government intervention. Under the states Tayl

Law, on the other hand, PERB requires mediation, followed by

fact-finding 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 collectiv

bargaining agreement and the parties reach an impasse.

Q. Mr. Kaplan: With the NLRB, does an employer have any oth

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 doctrin

however, prohibits any unilateral modification 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 multip

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. NLR

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 preferab

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 publschool 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 significance 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 mad2


3/4

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 influenced by the teachers

union. That union may have less clout at the federal level.

That could help level the playing field.

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 difficult 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 TaylorLaw. But the Regional Directors ruling applies to that one

school. Since the Chicago Mathematicsprinciples 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 final ruling from the NLRB. That could take a while. It is notclear 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 morerights

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, relatin

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 fosuch 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 th

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 employer

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

particular cases using criteria it established.

Q. Mr. Kaplan: What about an employers interest in keeping

business-related information and issues from being discusse

outside the organization? That seems understandable. Has

the NLRB addressed that?

A. Mr. Walsh:It has, and unfortunately, the NLRB in many case

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 ot

er terms or conditions of employment with non-employees, th

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 b

protected.

Q. Mr. Kaplan: What about policies barring contact with the me

dia without the employers prior authorization?

A. Mr. Walsh: Same thing.

3


4/4

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 consequenceof 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 corporationsrather 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 floated 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 w

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 officers, of charte

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 jurisdictionIt is unlikely, in my view, that trustees will have any greater or

less financial 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 flexibility, these schools should

flourish. 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 enviro

ment for charter school education. And lets be honest. One

of the reasons charter schools exist is to offer an alternative ttraditional public schools that are perceived to be encumbere

by bureaucracy, union contracts and oppressive rules. To th

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

at the heart of the charter movement.

Roger S. Kaplan is a shareholder of Jackson Lewis P.C. in the Firms Long Island,

office. Thomas V. Walsh is a shareholder in the Firms White Plains, NY office. Mr

Kaplan can be contacted by email at [email protected], or by telephone a

(631) 247-0404. Mr. Walsh can be contacted by email at [email protected] by telephone at (914) 872-6000.

Jackson Lewis is dedicated to representing management exclusively in workplace l

and has over 770 attorneys practicing in 55 locations throughout the U.S. and Pue

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 on

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, fre

enterprise, sound science in the courtroom and school choice. Atlantic Legals woregarding 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 som

of the nations largest corporations, partners of major law firms and distinguished

scient ists and educators . The Foundations work is highlighted at www.atlanticlegal.org.

4

atlantic legal august 2014 bulletin

Documents