The Pennsylvania Cyber Charter School

National Labor Relations Board - Board Decisions

Apr 9, 2014

06-RC-120811 (N.L.R.B. Apr. 9, 2014)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
THE PENNSYLVANIA CYBER CHARTER
SCHOOL
Employer
and Case 06-RC-120811
PA CYBER SCHOOL EDUCATION
ASSOCIATION, PSEA/NEA
Petitioner
ORDER
The Regional Director directed an election among the Employer’s full-time and
regular part-time virtual classroom instructors. The Employer requests review, asserting
that the Regional Director erred in finding that it was not an exempt political subdivision
under Section 2(2) of the Act. We deny review.
Under the test of NLRB v. National Gas Utility District of Hawkins County, 402
U.S. 600, 604-605 (1971), the Board will find entities to be exempt if they are “either (1)
created directly by the state, so as to constitute departments or administrative arms of
the government, or (2) administered by individuals who are responsible to public
officials or to the general electorate.” In Chicago Mathematics & Science Academy, 359
NLRB No. 41 (2012), a recent full-Board decision, we applied the Hawkins County test
to determine whether a particular charter school established and operated under Illinois
law constituted an exempt political subdivision. The Board found that the school was
not exempt, but also stated that it was not creating “a bright-line rule that the Board has
jurisdiction over entities that operate charter schools, wherever they are located and
regardless of the legal framework that governs their specific relationships with state and
local governments.” Id., slip op. at 1.
Here, the Regional Director, correctly applying the Hawkins County test, carefully
reviewed the particular circumstances of the Employer’s creation, structure, and
operation in light of the relevant legal framework in Pennsylvania. Contrary to our
dissenting colleague, we find that the Employer has not raised any issue, whether
factual or legal, that warrants review. As our colleague rightly acknowledges, there are
“many similarities between this case and Chicago Mathematics.” Further, insofar as our
colleague suggests that the Board revisit its decision there, we see no compelling
reason to do so.
2
Our colleague points to facts suggesting, in his view, that the Employer “may well
have been ‘created’ by the state” of Pennsylvania. We are not persuaded that they
support granting review. The Hawkins County test requires that an entity, to be exempt,
must be “created directly by the state.” 402 U.S. at 604-605 (emphasis added). The
relevant entity here, as in Chicago Mathematics, is a nonprofit corporation created by
private individuals. It may be that, absent the Pennsylvania Charter School law, the
entity would not have been created, but that is not the relevant question under Hawkins
County or Chicago Mathematics. No doubt many private entities would not exist but for
the public contracts they carry out; they nevertheless are not “administrative arms of the
government” (in the word of Hawkins County). See Chicago Mathematics, slip op. at 6.
That Pennsylvania arguably has chosen to cover charter-school employees
under various laws governing public employees is also immaterial under Chicago
Mathematics: the same was true of the charter school in that case, with respect to
Illinois law. Chicago Mathematics, slip op. at 2 & fn. 3 (citing state laws applicable to
charter schools, including Illinois Educational Labor Relations Act). Our colleague also
points out that the Pennsylvania Charter School Law refers to charter schools and their
trustees and administrators as “public school[s]”1 and “public officials.”2 But the Regional
Director correctly noted that while a state’s “characteriz[ation of] charter schools as
being within the public school system is ‘worthy of careful consideration,’” such
characterization is “not controlling in ascertaining whether an entity is a political
subdivision.” Chicago Mathematics, supra, slip op. at 7, citing Hinds County Human
Resource Agency, 331 NLRB 1404 (2000).3
In short, contrary to our dissenting colleague, we see no significant difference
between this case and Chicago Mathematics. Here, the Regional Director correctly
found that no local or state official was involved in the selection or removal of any
members of the Employer’s governing Board of Trustees, or in the hiring of the
Employer’s staff, including its CEO. He further found that neither the Employer's
trustees nor its CEO are directly and personally accountable to any state or local public

1 The statute actually defines charters schools as being “independent public schools.” Penn.
Stat. Ann. Educ. Code § 17-703A (emphasis added).
2 Penn. Stat. Ann. Educ. Code § 17-1715-A (11)-(12).
3 The state law in Chicago Mathematics was similar to that at issue here. The Illinois Charter
Schools Law involved in that case characterized charter schools as being within the public
school system and subjected charters schools to the jurisdiction of the Illinois Educational Labor
Relations Act (IELRA). The IELRA, in turn, was amended to provide that the “governing body of
a charter school” was included within the state’s definition of a public “educational employer.”
Chicago Mathematics, supra, slip op. at 2 & fn. 3.
3
officials or to the general electorate. Under Chicago Mathematics, these findings are
dispositive.4 Accordingly, we deny the Employer’s request for review.
KENT Y. HIROZAWA, MEMBER
NANCY SCHIFFER, MEMBER
Dated, Washington D.C., April 9, 2014
MEMBER JOHNSON, dissenting.
I would grant review. Notwithstanding the many similarities between this case
and Chicago Mathematics & Science Academy, 359 NLRB No. 41 (2012), on which the
Regional Director’s Decision and Direction of Election relies in substantial part, I believe
it prudent for the full Board to reconsider its interpretation of the test for determining
whether a public charter school is a political subdivision exempt from Section 2(2) of the
Act, pursuant to NLRB v. National Gas Utility District of Hawkins County, 402 U.S. 600,
603-605 (1971)(“Hawkins County”).
First, the Employer here may well have been “created” by the state and thus be a
subdivision under Hawkins County. Its charter was originally granted by public officials,
after a hearing and by their own public vote, before any private entity was formed to
operate the school. In my view, issuance of the charter before the private entity was
created resulted in “creation” by the state. One of the operative statutes indicates the
state did create the school as a matter of law, in that the Pennsylvania Department of
Education “act[s] on applications for the creation of a cyber charter school.” Penn. Stat.
Ann. Educ. Code §17-1741-A (emphasis added). Moreover, the Employer’s charter
renewal, necessary to “create” the school for another five year term, was signed by no
less than the acting Pennsylvania Secretary of Education. Further supporting full
consideration by the Board here, Pennsylvania state law defines the Employer as a
“public school” – an entity traditionally seen as a political subdivision of a state. Most
importantly, Pennsylvania has consciously chosen to cover charter school employees
like the Employer with its own system of public employee laws relating to organizational
and collective-bargaining rights, as well as a panoply of other laws applicable only to
public schools, including state oversight of financial integrity. Second, the Employer
may well also be a political subdivision for the independent reason that it is arguably
“administered by individuals who are responsible to public officials.” Hawkins County,

4 Contrary to our dissenting colleague, we do not see renewal of a cyber school’s charter by the
Pennsylvania Secretary of Education as evidence that trustees are “responsible to public
officials,” in the sense contemplated by Chicago Mathematics and Hawkins County, any more
than renewal of a government contract converts a private contractor into a public agency.
4
402 U.S. at 604-605. Pennsylvania’s legal regime classifies the Employer’s own board
of trustees themselves as “public officials,” with its Chief Executive Officer specifically
covered by laws relating to public officials concerning ethics and disclosures. And, as
mentioned above, the Employer can only exist if its charter is renewed, as it has been,
by the Pennsylvania Secretary of Education. That the Secretary decides whether or not
to renew the charter is dispositive evidence that the trustees are accountable to that
public official. Full bore appointment of the trustees by the Secretary is not required
under the test.
In conclusion, the Board’s decision in Chicago Mathematics & Science Academy
held that the Board would not apply a bright-line rule to the question of jurisdiction of
charter schools. 359 NLRB No. 41 (2012), slip op. at 1. Thus, I would have the Board
fully set forth its reasons for asserting (or not asserting) jurisdiction in this case, in order
to develop the law in an area extremely important to states, schools, employees,
parents and children alike.
HARRY I. JOHNSON, III, MEMBER