The Jurisdictional Difficulties of Defining Charter-School Teachers Unions under Current Labor Law

By DeGory, Amelia A. | Duke Law Journal, November 2016 | Go to article overview

The Jurisdictional Difficulties of Defining Charter-School Teachers Unions under Current Labor Law


DeGory, Amelia A., Duke Law Journal


Abstract

As charter schools have flourished in form, they have also evolved in variety: parents can send their children to a trilingual immersion school or a school whose classes meet entirely online. The same flexibility that charters offer as an alternative to traditional public schools also makes them difficult to classify for purposes of labor law. When charter-school teachers form a union, it is not clear why the National Labor Relations Board (NLRB), and not a state labor analogue, should have jurisdiction over a charter-school labor dispute. And yet, the NLRB has asserted jurisdiction in most charter-school cases. This Note examines the NLRB's test for determining whether the broad protections of the National Labor Relations Act apply to a group of workers in the context of charter-school employees. It proposes a more robust test for differentiating between charter schools for purposes of the Act, and it applies the test to two charter schools.

Introduction

On May 29, 2013, thirty Olney Charter High School teachers' and their supporters waited to address ASPIRA, Inc. of Pennsylvania's nonprofit board. (2) Some sat as others stood, because the board changed its bimonthly public-meeting location from its headquarters' large meeting space to a cramped conference room at the eleventh hour. The teachers had come to ask the board to negotiate with the 65 percent of staff who had signed a petition in support of a union. Although the teachers had requested time on the agenda, the board relegated them to the public-comments section with a new two-minute-per-person time limit kept by a board member's iPhone. (3) As the meeting stretched past 9:00 p.m., the teachers asked the board to recognize their union and work with them. The board chair responded, "At this point we are not entering discussions ... maybe at the next board meeting." (4)

For three years--through substantial staff turnover and changes in administration--the Olney teachers worked to gain recognition for their union. They worked with organizers from the American Federation of Teachers (AFT), a national teachers union that had recently begun to help charter-school teachers launch union campaigns. They filed Unfair Labor Practice charges with the National Labor Relations Board's (NLRB) Regional Office in Philadelphia. The employer, ASPIRA, filed challenges to the NLRB's jurisdiction over the dispute. Eventually, ASPIRA settled with the NLRB and agreed to post notices throughout the school building that it had interfered with the teachers' right to unionize. In April of 2015, after a three-year organizing campaign, Olney Charter High School won its union under an election administered by the NLRB. (5) But it is not clear why the NLRB, and not the Pennsylvania Labor Relations Board, has jurisdiction over this labor dispute. (6) Charter-school teachers unions are new compared to public-school teachers unions, and charter schools exist in something of a middle ground between public and private schools. Therefore, the question of whether the NLRB or state labor boards have jurisdiction over charter-school teachers unions remains relatively open. This Note examines the NLRB's test for determining whether the broad protections of the National Labor Relations Act (the Act) apply to a group of workers in the context of charter-school employees.

Teachers unions are some of America's favorite villains in the story of public education. (7) Why does this narrative have staying power? Simply put, almost everyone has had an ineffective teacher. And unlike an incompetent doctor or a surly DMV employee, an ineffective teacher holds power over his students for hours each week during those students' formative years. Any organization devoting resources to ensuring that (even ineffective) teachers have some kind of process before being fired will likely draw the ire of those who have experienced bad teaching. After first winning their collective-bargaining rights in the 1960s, public-sector teachers unions have grown in power and number over time, increasing teachers' perceived professionalism and securing better working conditions, clearer systems for salary raises, and more generous pension benefits. …

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