Evergreen Charter School

National Labor Relations Board - Board Decisions

Oct 27, 2016

29-RD-175250 (N.L.R.B. Oct. 27, 2016)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
EVERGREEN CHARTER SCHOOL
Employer
and Case 29-RD-175250
ALISON GREENE
Petitioner
and
EVERGREEN CHARTER STAFF
ASSOCIATION, NYSUT, AFT
Union
ORDER
The Union’s Request for Review of the Regional Director’s Decision and Direction of
Election is denied as it raises no substantial issues warranting review.1

1 In denying review, we agree with the Regional Director, for the reasons he stated, that the
Employer charter school is not exempt as a political subdivision under Sec. 2(2) of the National
Labor Relations Act. We find that the Regional Director correctly applied the test in NLRB v.
Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971)(“Hawkins County”), in
finding that the Employer was neither created directly by the state so as to constitute a
department or administrative arm of the government nor administered by individuals who are
responsible to public officials or the general electorate. We do not, however, rely on the
Regional Director’s citation to Chicago Mathematics & Science Academy Charter School, 359
NLRB 455 (2012), a recess-Board decision. See NLRB v. Noel Canning, 1345 S. Ct. 2550
(2014). Instead, we find that the Regional Director’s analysis is consistent with Hyde Leadership
Charter School, 364 NLRB No. 88 (2016)(“Hyde Leadership”). In Hyde Leadership, the Board
applied the Hawkins County test to a New York charter school operating pursuant to the same
state statute, whose creation by individual applicants and governance by its board of trustees
exhibit only minor, non-substantive differences from the instant case. In asserting jurisdiction in
Hyde Leadership, the Board rejected arguments that substantially mirror those raised by the
Union in this case.
Additionally, to the extent that the Regional Director found that the New York Education
Law does not empower the New York State Board of Regents with the authority to remove
members of the charter school’s board of trustees, we clarify that mischaracterization. Indeed,
Sec. 226(4) of the Education Law provides that the Board of Regents may remove trustees for
certain forms of misconduct or malfeasance. As we found in Hyde Leadership, however, this
limited removal authority is “insufficient to make the trustees individuals who have ‘direct
personal accountability’ to public officials or to the general electorate within the meaning of the
MARK GASTON PEARCE, CHAIRMAN
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., October 27, 2016
Member Miscimarra, dissenting:
I would grant the Union’s Request for Review and dismiss the petition. The Employer is
a charter school located in Hempstead, New York, that was chartered by the New York State
Board of Regents pursuant to the New York Charter Schools Act. For the reasons fully
explained in my dissenting opinion in Hyde Leadership Charter School, 364 NLRB No. 88, slip
op. at 9-16 (2016) (Member Miscimarra, dissenting), I believe that the Employer is a political
subdivision of the State of New York exempt from the Board’s jurisdiction pursuant to Section
2(2) of the Act under the standard set forth in NLRB v. Natural Gas Utility District of Hawkins
County, 402 U.S. 600 (1971). In addition, I believe that the Board should in any event decline
jurisdiction over the Employer, and over charter schools as a class, pursuant to Section 14(c)(1)
of the Act for the reasons fully explained in my dissenting opinions in The Pennsylvania Virtual
Charter School, 364 NLRB No. 87, slip op. at 11-18 (2016) (Member Miscimarra, dissenting),
and Hyde Leadership Charter School, above, slip op. at 14-15 (Member Miscimarra, dissenting).
PHILIP A. MISCIMARRA, MEMBER

Hawkins County test.” Hyde Leadership, supra, slip op. at 7 citing Cape Girardeau Care Center,
278 NLRB 1018, 1019 (1986) and the cases cited therein.
We likewise find no merit in the Union’s arguments that the Board should, pursuant to
Sec. 14(c)(1) of the Act, decline to assert jurisdiction over the Employer because education is a
matter of local and state concern, and the state legislature intended to treat charter schools as
public schools and political subdivisions. The Board rejected similar arguments in Hyde
Leadership, supra, slip op. at 7-8, and Pennsylvania Virtual Charter School, 364 NLRB No. 87,
slip op. at 9-10 (2016).