Tuesday, November 4, 2014

Federal Board Rules OH Charter School Private Sector Employer

Some of you may be aware that the American Federation of Teachers is trying to organize teachers in Cleveland. The organizers are claiming the ICAN school it is trying to organize (University of Cleveland Preparatory School) pursued unfair labor practices. And on Thursday, the National Labor Relations Board agreed with the union when it filed a complaint against ICAN and set a Jan. 20, 2015 hearing on the matter.

But perhaps even more groundbreaking than even that complaint filing was this: In the 17-page complaint, the NLRB claimed that the charter schools run by ICAN were "employers" for the purposes of their jurisdiction. What's that mean? It means they are private employers, not public ones. Here is the definition of an employer under the National Labor Relations Act:
"The term "employer" includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act [45 U.S.C. § 151 et seq.], as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization."
So this means that Ohio charter schools are not considered public schools for labor relations purposes. This is a big deal because throughout the Ohio Revised Code, charter schools are called "public." And, in fact, Ohio law places them under the jurisdiction of the State Employee Relations Board, which handles disputes for public employees. But what the NLRB has done (as it did in Chicago) is determine that how the school operates should determine how it is classified, not what it's called in code. In legal parlance, they are de facto private schools, if not de jure private schools.

This raises all kinds of questions for Ohio's charter schools. If they're not public schools for labor relations purposes, what does that mean for the 14th Amendment, which applies to state actors? Does it mean they can escape from even more public scrutiny? And does it mean that they are not public schools, even though they repeatedly call themselves public (their lobbying groups, after all, are called the Ohio (and National) Alliance for Public Charter Schools)?

It's not immediately clear, but it is certain that these are real questions that now need answers. And to be fair, the schools may make incredible arguments in January and the NLRB may reverse its decision and kick the case down to SERB. But I wouldn't want to have to make that argument.

What I do know is this: the way Ohio's charter schools operate leads federal labor experts to view them as private, not public schools. This complaint filing should give charter school reformers guidance as to how to change charter school law in this state. Make charter school operations more like public schools in fact because it doesn't matter what you call it. What matters is how it actually operates.

After all, if it walks like a duck and quacks like a duck, well, it's a duck.