EASTSIDER-Even as we debate whether Charter Schools at LAUSD are public schools or not, the Trump appointed NLRB is deciding whether or not to exempt them from unionization altogether. No kidding.
Out here on the Left Coast, we tend to forget that in the private sector there is an outfit called the National Labor Relations Board (NLRB), which has national jurisdiction over private sector unionization. However, it turns out that the Board has been tentatively putting a foot in the water of Charter schools for a couple of years.
Without too much fanfare, back in 2106, there were two decisions within a week that involved east coast Charter Schools. In the first case, New York’s Hyde Leadership Charter School, the framework was the same as in California, with the school being established outside the public school system and not directly accountable to the public. There’s a good article about this in the Washington Post.
The second case was The Pennsylvania Virtual Charter School, which was set up as a non-profit corporation. In both cases, the Board basically held that they were private sector entities and hence subject to the National Labor Relations Act. For an analysis from one of the biggest anti-union law firms in the Country, here’s the take from Littler.
Anyway, there was no blanket ruling by the NLRB, and it is evident that they were slowly moving toward the direction of declaring Charter schools as subject to the National Labor Relations Act. For anyone interested in looking at the actual cases, simply go to the following link and do a case search by name.
This was the way things were until the election of Donald Trump.
And Along Came Trump
President Trump having anything at all to say about the NLRB gives him an unprecedented opportunity which has never occurred in the history of the Board itself. He got to appoint three out of the five members, as well as the General Counsel of the Board. As NPR noted:
"We have never seen a situation like this in the 81-year history of the board, where the president who appoints parties has had a financial interest in a matter coming before the board," says William Gould, former NLRB chairman and professor emeritus at Stanford Law School.”
Needless to say, the President’s history with the Board was one of systematic violations and then fighting to the bitter end. The piece I cited gives the details.
As we speak, Trump has seriously stacked the Board, including the all-important General Counsel position, with management-oriented picks. As the NLRB’s own website notes about Peter B. Robb:
“Before becoming the NLRB’s General Counsel, Mr. Robb was a Director at the northern New England law firm Downs Rachlin Martin PLLC (DRM). Robb joined DRM as a Director in 1995. He chaired the firm’s Labor and Employment Practice Group from 2000 to 2009 and served as Deputy Managing Partner from 2009 to 2012. He also served on the American Bar Association’s Practice and Procedures Committee for the National Labor Relations Board.”
What they don’t mention is that he was a serious management side employment lawyer, and this is a big deal because, as The National Law Review notes:
“The position of NLRB general counsel is critical and comes with broader responsibilities than the general counsel position at any other federal agency. At the NLRB, the general counsel has unreviewable discretion in the issuance of complaints based on charges filed with the agency and thus is the gatekeeper in advancing cases to the Board for decision. The general counsel also has broad administrative authority and is responsible for the Board's regional offices and their attorneys throughout the country. The general counsel helps set Board policy by arguing cases before the Board and issuing general counsel memoranda instructing the regional offices and their lawyers on the handling of cases and issues the general counsel chooses to pursue.”
The Shift Has Started
With all this background, the February 4 announcement of the NLRB becomes very understandable:
“Washington, DC—Today, the National Labor Relations Board issued an Order in KIPP Academy Charter School, 02-RD-191760, granting review in part and inviting the filing of briefs regarding whether the Board should exercise its discretion to decline jurisdiction over charter schools as a class under Section 14(c)(1) of the National Labor Relations Act (NLRA) and, therefore, modify or overrule the 2016 Hyde Leadership Charter School—Brooklyn, and Pennsylvania Virtual Charter School decisions. NLRA section 14(c)(1) provides that the Board may decline to assert jurisdiction over labor disputes involving any class or category of employers where the effect of the dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction.”
Prominent in the 3-1 vote were John F. Ring, from Morgan, Lewis & Bockius, and William Emmanuel, formerly from Littler, Mendelson. For those who don’t know them, Littler is also known by the name of Littler, Mendelson, and was referred to by my private sector union buddies as “Littler, Hitler.” Ring, a favorite of the U.S. Chamber of Commerce, represented management for his firm prior to the NLRB appointment.
You don’t even have to read between the lines in this one. In the actual Order, which is included in the February 4 announcement, here is the language:
ORDER GRANTING REVIEW IN PART AND INVITATION TO FILE BRIEFS
The Union’s Request for Review of the Regional Director’s Decision and Direction of Election is granted as it raises substantial issues whether the Board should exercise its discretion to decline jurisdiction over charter schools as a class under Section 14(c)(1) of the Act and, therefore, modify or overrule Hyde Leadership Charter School—Brooklyn, 364 NLRB No. 88, slip op. at 6 fn. 15, 7-9 (2016), and Pennsylvania Virtual Charter School, 364 NLRB No. 87, slip op. at 7, 9-10 (2016). The parties and interested amici are invited to file briefs addressing the issue.
While we in California are having some success in rationalizing our Charter Schools, it is clear that President Trump and his bestest pal beyond rich billionaire Charter School maven Betsy DeVos (with her mega yacht safely under foreign registry) are gonna play us, folks.
Time to dig in, organize, and get California squared away. There are rational ways to handle Charter schools, but the Feds are clearly not going to be the way.
(Tony Butka is an Eastside community activist, who has served on a neighborhood council, has a background in government and is a contributor to CityWatch.) Edited for CityWatch by Linda Abrams.