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

DEGORY IN PRINTER FINAL (DO NOT DELETE) 10/27/2016 9:59 AM Notes THE JURISDICTIONAL DIFFICULTIES OF DEFINING CHARTER-SCHOOL TEACHERS UNIONS UNDER CURRENT LABOR LAW AMELIA A. DEGORY† 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 teachers1 and their supporters waited to address ASPIRA, Inc. of Pennsylvania’s Copyright © 2016 Amelia A. DeGory. † Duke University School of Law, J.D. expected 2017; University of Pennsylvania, M.S.Ed. 2011, B.A. 2009. Thank you to Professors Rebecca Rich, Dan Bowling, and the participants in Duke Law’s Scholarly Writing Workshop for their comments and reassurance during the early stages of this Note. Also, thank you to the participants in Duke Law’s Student Scholarship Series, who gave me valuable feedback, and to the Duke Law Journal’s tireless editors for their support. Finally, I thank my family and Olney Charter High School’s staff and students for inspiring me in countless ways. 1. The author was one of these teachers. Parts of this account are based on the author’s recollections. DEGORY IN PRINTER FINAL (DO NOT DELETE) 10/27/2016 9:59 AM 380 [Vol. 66:379 DUKE LAW JOURNAL 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 2. Jake Blumgart, Back to School for Labor, AM. PROSPECT (June 27, 2013), http://prospect.org/article/back-school-labor [https://perma.cc/TUC5-4HGL]. 3. Id. 4. Id. 5. Laura Benshoff, After Three Years, ASPIRA’s Olney Charter High School Says “Yes” to Union, NEWSWORKS (May 1, 2015), http://www.newsworks.org/index.php/local/education/81381after-three-years-aspiras-olney-charter-high-school-says-yes-to-union [https://perma.cc/WRU8PB3U]. As of the publication of this Note, ASPIRA and the union still have not bargained for a contract. 6. After the election, ASPIRA, Inc. of Pennsylvania challenged the NLRB’s jurisdiction over certification, but then withdrew the challenge. See Olney Charter High Sch., an Aspira of PA Sch., Case No. 04-RC-148637 (N.L.R.B. July 22, 2015) (exception of employer to the hearing officer’s report on objection) (filing exceptions to NLRB Hearing Officer’s finding of jurisdiction over the employer after the union election); Olney Charter High Sch., an Aspira of PA Sch., Case No. 04-RC-148637 (N.L.R.B. Sept. 25, 2015) (executive secretary office letter) (acknowledging the employer’s withdrawal of exceptions and stating the NLRB will not act on the exceptions). DEGORY IN PRINTER FINAL (DO NOT DELETE) 2016] 10/27/2016 9:59 AM CHARTER-SCHOOL TEACHERS UNIONS 381 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 collectivebargaining 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.8 Teachers unions have also fought for job-security protections that can make terminating a teacher prohibitively expensive in terms of both money and time.9 Enter charter schools. Initially invented by unionized teachers who wanted more flexibility,10 charter schools have been touted as a 7. See, e.g., Moriah Balingit, GOP Presidential Hopefuls Tested on Education Issues at N.H. Forum, WASH. POST (Aug. 19, 2015), https://www.washingtonpost.com/local/education/goppresidential-hopefuls (...truncated)