In two decisions issued last month, Pennsylvania Virtual Charter School, 364 NLRB No. 87 (Aug. 24, 2016) and Hyde Leadership Charter School—Brooklyn, 364 NLRB No. 88 (Aug. 24, 2016), the National Labor Relations Board continued to crystallize consensus in its decisions exercising jurisdiction over charter schools.

Under Board precedent, an entity is considered a political subdivision exempt from the coverage of the Act if it is either (1) created directly by the state so as to constitute a department or administrative arm of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.

The Board noted that it “has routinely found employing entities to be exempt political subdivisions where they were created by legislation or statute in order to discharge a state function” or “created by an act of the judiciary.” However, the Board distinguished the Pennsylvania Virtual Charter School (“PVCS”) and the Hyde Leadership Charter School—Brooklyn (“Hyde”) by finding that private individuals actually bore responsibility for their creation.  Even though by Pennsylvania statute, charters schools must be established and operated under a charter issued by the Pennsylvania Department of Education, in the Pennsylvania case, the Board found that PVCS was not exempt because a group of private individuals organized and filed the application for the charter.  Similarly, even though by New York statute, a charter school must be approved by the Board of Regents and is defined as a political subdivision, in Hyde the Board found that it was a private individual’s “initiative and her and the founding board’s preparatory work . . . that ‘created’ the School.”  The Board also found that the charter schools were not exempt even though they were substantially regulated under state and local laws.  Further, the Board decided that it would not decline to assert jurisdiction over the charter schools under Section 14(c)(1) of the Act despite their local character.

The Board’s decision came despite opposition from the union representing New York school teachers and several amici. Board Member Philip Miscimarra dissented from both decisions, noting that “charter schools operate as K-12 public schools, they are substantially regulated under state and local laws, and they are overseen by state and local authorities.”

Ultimately, these decisions, in combination with the Board’s recent decisions involving university graduate assistants, will continue to facilitate unionization via Board processes in American educational institutions at all levels.