By: Paul H. Burmeister

Illinois charter schools may be subject to a union organizing drive under federal law pursuant to a recent ruling by the National Labor Relations Board. On December 14, 2012 The National Labor Relations Board (“NLRB”) found that a private, nonprofit corporation that operates a public charter school in Chicago was an employer under Section 2(2) of the National Labor Relations Act (NLRA). Chicago Mathematics & Science Academy Charter School, Inc. and Chicago Alliance of Charter Teachers and Staff, IFT-AFT (359 NLRB 41.  This ruling emanated from the union’s petition to seek representation of the teachers at the Chicago Mathematics & Science Academy (“Academy”) under the Illinois Educational Labor Relations Act (IELRA). In 2010, the IELRA was amended by the Illinois legislature to include charter schools as an ‘educational employer’ under the Act. (115 ILCS 5/2(a)). The IELRA governs union elections of public school employees in Illinois.

The union filed a petition to represent the teachers at the Academy with the Illinois Educational Labor Relations Board (“IELRB”). Presumably, the union filed for an election under the IELRA as the state had modified the law to include charter schools under its definitions of employers. However, in response to the union’s representation petition, the Academy filed its petition for representation with the NLRB approximately one month later.

The NLRB Regional Director dismissed the Academy’s petition, stating that the charter school was a political subdivision of the State of Illinois, and thus under Section 2(2) of the NLRA, the NLRB did not have jurisdiction as the Academy was not an ‘employer’. The Regional Director’s decision was made following the two prong test of Hawkins County (400 U.S.  600), which holds that an entity is not an employer if; 1) the entity was created by the state so as to be an administrative arm of the government, or 2) the entity is administered by elected officials or appointed by public officials.

The NLRB reviewed the Regional Director’s decision and determined that the Academy is, contrary to the opinion of the Regional Director, an employer within Section 2(2) of the NLRA. The NLRB determined that neither Hawkins County prong applied, despite the Academy receiving 80% of its funding from the Chicago Public School District (“CPS”).

First, the state did not create the charter school. The school was created by private individuals under the state’s laws for the establishment of a non-profit corporation. The NLRB reasoned that entities created by individuals, in this case a non-profit charter school, are not ‘created by the state’. The NLRB further stated that merely because the charter school was funded with public money, that fact alone did not translate into ‘formation by the government.’

With respect to the second prong of the Hawkins County test, the board members who run the school are appointed by the charter school’s own board of directors. The Academy’s board is not elected or otherwise appointed by duly elected officials. Thus, the NLRB held that the second prong of Hawkins County was not met since the board members are not elected or appointed by public officials.

Accordingly, the NLRB asserted jurisdiction over the Academy and Illinois charter schools. However, while the NLRB dcision is based upon, “the particular provisions of Illinois law”, this decision did not establish a bright line rule that the NLRB has jurisdiction over all charter schools in every state.

One of the more interesting aspects of this ruling is that it comes on the heels of a somewhat bitter strike by the Chicago Teachers Union. One of the primary issues driving the strike was the growth of charter schools in Chicago, which are typically non-union. The IELRA is much friendlier to unions attempting to organize educational employees in Illinois. Certainly bargaining with teachers unions throughout the state of Illinois may take on a more drastic tone as the unions continue to battle educational employers over the opening of more and more charter schools.

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