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PLRB Decisions Find Privately-Operated Charter Schools Are Not Covered by PERA

October 10, 2013

Two recent decisions by a Hearing Examiner of the Pennsylvania Labor Relations Board (“PLRB”) have found that privately-operated charter schools are not covered by the Pennsylvania Employee Relations Act (“PERA”).  In Agora Employees Education Association PSEA/NEA v. Agora Cyber Charter School, 45 PPER ¶ 6 (Proposed Decision and Order, 2013) (“Agora”) and Alliance of Charter School Employees Local 6056 AFT v. New Media Technology Charter School, 45 PPER ¶ 8 (Proposed Decision and Order, 2013) (“New Media”), the Hearing Examiner concluded that the PLRB did not have jurisdiction over the charter schools in question, but instead, were covered by the National Labor Relations Act (“NLRA”).  
In Agora, the union filed an unfair labor practice charge with the PLRB alleging that the Agora Cyber Charter School, a non-profit corporation operated by a board of trustees, violated Section 1201(a)(1) and (2) of the PERA by interfering with the union election.  Hearings were held on the charges in June and August, 2012.  
In New Media, the union filed a representation petition with the PLRB, seeking to represent employees at the New Media Technology Charter School, a non-profit corporation operated by a board of directors.  After issuing an order and a notice of hearing, the union subsequently filed four separate unfair labor practice charges.  After the filing of the first charge, the Hearing Examiner placed the representation charge in abeyance.  In December, 2011, the Hearing Examiner dismissed two of the unfair labor practice charges.  The remaining two unfair labor practice charges went to a hearing in May and June, 2012.  Pending a decision by the Hearing Examiner, the National Labor Relations Board (“NLRB”) asserted jurisdiction over the employees of New Media.  
In both cases, the central issue was whether or not the PLRB had jurisdiction over the charter schools and its employees.  Section 301(1) of PERA expressly provides that the term “public employer” “shall not include employers covered or presently subject to coverage under . . . the ‘National Labor Relations Act.’” Section 301(2) states that the term “public employee” or “employee” “means any individual employed by a public employer . . .”  Thus, the question before the Hearing Examiner was whether or not the charter schools were “public employers” under PERA. Specifically, the Hearing Examiner was required to determine if those charter schools were covered by the NLRA.  
In both cases, the Hearing Examiner held that the charter schools were not public employers and their employees were not public employees under PERA.  In reaching this conclusion, he relied upon the NLRB decision in Chicago Mathematics & Science Academy Charter School Inc., and Chicago Alliance of Charter Teachers & Staff, IFT, AFT, AFL-CIO, 194 L.R.R.M. 1321, 359 NLRB No. 41 (2012).  In that case, the NLRB held that “where the appointment and removal of a majority of an entity’s governing board members is controlled by private individuals—as opposed to public officials, the entity will be subject to the [NRLB’s] jurisdiction.”  It further found that “[o]ur sole focus is on the composition of [the charter school’s] board of directors and to whom they are accountable.”  In fact, the Board made clear that the sole dispositive factor was whether or not the board of directors was “subject solely to private appointment and removal.”  
Applying the holding of this case, the PLRB Hearing Examiner found that the board of trustees in Agora and the board of directors in New Media were neither elected by the public nor directly accountable to a public official.  Thus, both were subject to the jurisdiction of the NLRB, rather than the PLRB.  In New Media, his conclusion was further supported by the fact that the NLRB already had asserted jurisdiction over the charter school.
In light of these decisions, it is highly unlikely that the PLRB will assume jurisdiction over any labor matter concerning Pennsylvania employees working for a charter school in which the board of directors are neither elected by the public nor accountable to an elected public official.  Thus, any representation petitions concerning such employees should be filed with the appropriate Regional Director that has jurisdiction over the area where those employees work.  
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