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NLRB Decides to Assert Jurisdiction Over Charter Schools On A Case By Case Basis

The NLRB continues to operate during the novel coronavirus crisis. Regional offices are largely working remotely as is the rest of the country.  The Board itself continues to issue decisions, albeit at a slower pace than usual.  On February 4, 2019, the NLRB invited interested parties to file briefs addressing whether the agency should decline to assert jurisdiction “as a class” to charter schools, which are private educational institutions granted a “charter” to operate pursuant to state public education law.  Generally speaking, unions do not like the NLRB to assert jurisdiction over charter schools because under federal law employees are entitled to a secret ballot election on the question of union representation; many state public education laws only require a “card check” to establish recognition.

On Wednesday, March 25, 2020 the NLRB affirmed a decision by the Regional Director which held that a New York charter school fell under Board jurisdiction.  KIPP Academy Charter School368 NLRB No. 48 (2020).  The union appealed the decision, arguing that under Section 14(c)(1) of the NLRA, charter schools should be exempt from Board jurisdiction as a class, because they are statutorily-exempt public entities.  This appeal led to the NLRB’s request for briefs.  Board law in this area contains cases where the Board asserts jurisdiction and cases where the Board declines to assert jurisdiction.

In a short decision, the NLRB held that, after consideration of all arguments made by parties it would not decline jurisdiction over charter schools as a class.  Beyond its ruling, the NLRB provided no explanation for its decision.

So, for the time being, the Board will continue to decide whether to assert jurisdiction over charter schools using its analysis of Section 14 of the Act on a case by case basis.

© 2020 Proskauer Rose LLP.

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About this Author

Mark Theodore, Employment Attorney, Proskauer Rose
Partner

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. 

Some highlights of his career include:

  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles

  • Successfully defended a major theme park when the NLRB sought bargaining order after the union...

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Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League Baseball, the National Hockey League, the National Football League, the National Basketball Association, and Major League Soccer in collective bargaining, labor relations issues, such as grievance and salary arbitrations, and wage-and-hour issues.

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Samantha Shear Labor Employment Attorney
Associate

Samantha Shear is an associate in the New Orleans office and a member of the Labor and Employment Department. Samantha graduated cum laude from Tulane Law School where she spent two years as a member of the Judge John R. Brown moot court team. She served as coach of the moot court team one year, leading her team to win multiple awards for excellence in oral advocacy.

Prior to law school, Samantha worked as a freelance journalist for music publications.

Education

  • Tulane University Law School, J.D., 2018

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