The Pennsylvania Cyber Charter School

National Labor Relations Board - Board DecisionsOct 19, 2016

06-RC-159861 (N.L.R.B. Oct. 19, 2016)

UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD THE PENNSYLVANIA CYBER CHARTER SCHOOL Employer and Case 06-RC-159861 PA CYBER SPECIAL EDUCATION ASSOCIATION, PSEA/NEA Petitioner ORDER The Employer’s Request for Review of the Regional Director’s Decision and Direction of Election is denied as it raises no substantial issues warranting review.1 MARK GASTON PEARCE, CHAIRMAN 1 In denying review, we agree with the Regional Director, for the reasons she stated, that the Employer charter school is not exempt as a political subdivision under Sec. 2(2) of the National Labor Relations Act. We find that the Regional Director correctly applied the test in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971)(“Hawkins County”), in finding that the Employer was neither created directly by the state so as to constitute a department or administrative arm of the government nor administered by individuals who are responsible to public officials or the general electorate. We do not, however, rely on the Regional Director’s citation to Chicago Mathematics & Science Academy Charter School, 359 NLRB 455 (2012), a recess-Board decision. See NLRB v. Noel Canning, 1345 S.Ct. 2550 (2014). Instead, we find that the Regional Director’s analysis is consistent with Pennsylvania Virtual Charter School, 364 NLRB No. 87 (2016). In Pennsylvania Virtual, the Board applied the Hawkins County test to another Pennsylvania cyber charter school operating pursuant to the same statute, whose creation by individual applicants and governance by its board of trustees exhibit only minor, non-substantive differences from the instant case. In addition, in asserting jurisdiction in Pennsylvania Virtual, we rejected arguments that substantially mirror those raised by the Employer in this case. We likewise find no merit in the Employer’s arguments that the Board should, pursuant to Sec. 14(c)(1) of the Act, decline to assert jurisdiction over the charter school, a private, non- profit education corporation, because of its limited impact on interstate commerce, the legislative intent to treat charter schools as public schools, and the state’s authority to regulate the labor relations of its public employees. The Board has rejected similar arguments in Pennsylvania Virtual, supra, slip op. at 9-10, and Hyde Leadership Charter School, 364 NLRB No. 88, slip op. at 7-8 (2016). LAUREN McFERRAN, MEMBER Dated, Washington, D.C., October 19, 2016 Member Miscimarra, dissenting: I would grant the Employer’s Request for Review and dismiss the petition. The Employer is a cyber charter school based in Midland, Pennsylvania that was chartered by the local Midland School District pursuant to the Pennsylvania Charter School Law. For the reasons fully explained in my dissenting opinions in Pennsylvania Virtual Charter School, 364 NLRB No. 87, slip op. at 11-18 (2016) (Member Miscimarra, dissenting), and Hyde Leadership Charter School, 364 NLRB No. 88, slip op. at 14-15 (2016) (Member Miscimarra, dissenting), I believe the Board should decline jurisdiction over charter schools generally and I believe the Board has improperly exercised jurisdiction over the Employer in this case. PHILIP A. MISCIMARRA, MEMBER