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Unionizing at Charter Schools Gets Another Look From NLRB (2)

Feb. 4, 2019, 9:05 PMUpdated: Feb. 4, 2019, 11:15 PM

The National Labor Relations Board will reconsider whether charter school teachers and other staffers can unionize under federal labor law.

A divided NLRB on Feb. 4 agreed to potentially modify or overrule a pair of Obama-era rulings that asserted jurisdiction over charter schools. The board also invited interested parties to file briefs by March 6 weighing in on the issue in a case involving KIPP Academy Charter School in New York City.

The case gives the Republican-controlled NLRB an opportunity to wade into the politically charged realm of charter schools. Many Republicans, including Education Secretary Betsy DeVos, are supportive of charter schools as a tool for reform, while some Democrats worry they drain resources from traditional public schools.

The National Labor Relations Act gives the NLRB authority over private businesses. In the KIPP Academy case, the board said it would mull whether to decline to assert jurisdiction over charter schools.

The NLRB in 2016 handed down a pair of rulings saying the NLRA applied to charter schools. The board, which was then controlled by Democrats, rejected arguments that the schools were political subdivisions of the state and thus outside of its jurisdiction. A union opposed NLRB jurisdiction in one of those cases, while the charter school fought against it in the other.

The board didn’t establish a categorical rule for all charter schools in those decisions. Instead, it applied its decades-old rule for determining whether an entity is a political subdivision.

The broader issue of how the NLRB will handle charter schools stems from a petition filed by KIPP Academy workers who seek to oust their union, an affiliate of the United Federation of Teachers.

The UFT affiliate, which opposes NLRB jurisdiction, didn’t immediately respond to a request for comment.

KIPP Academy has argued that the board should have authority over the case. Outside of one notable exception that was governed by Texas’ unique charter school law, the board has consistently said the NLRA applies to charter schools, said KIPP Academy’s attorney, Thomas Walsh of Jackson Lewis.

“I don’t know how you put the genie back in the bottle,” Walsh told Bloomberg Law.

The board’s three Republican members didn’t explain why they decided to reconsider opting out of asserting jurisdiction over charter schools, except to say the union’s petition “raises substantial issues” about the topic.

Lauren McFerran, the NLRB’s lone Democratic member, dissented.

“There are no new policy justifications or legal grounds to revisit the Board’s approach to analyzing jurisdictional questions involving charter schools,” McFerran wrote.

The case is KIPP Academy Charter School, 2019 BL 34879, N.L.R.B., 02-RD-191760, Decision 2/4/19.

(Adds comments from KIPP Academy’s attorney and additional reporting.)

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Cynthia Harasty at; Terence Hyland at