Agora Cyber Charter School

National Labor Relations Board - Board Decisions

Nov 16, 2016

04-RC-170767 (N.L.R.B. Nov. 16, 2016)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
AGORA CYBER CHARTER SCHOOL
Employer
and Case 04-RC-170767
AGORA CYBER EDUCATION
ASSOCIATION, PSEA
Petitioner
ORDER
The Employer’s Request for Review of the Acting Regional Director’s Decision and
Direction of Election is denied as it raises no substantial issues warranting review.1
MARK GASTON PEARCE, CHAIRMAN
LAUREN McFERRAN, MEMBER

1 In denying review, we agree with the Acting 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 Acting 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 Acting
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 Acting Regional Director’s analysis is consistent with
Pennsylvania Virtual Charter School, 364 NLRB No. 87 (2016). In Pennsylvania Virtual, the
Board applied the Hawkins County test to another Pennsylvania cyber charter school operating
pursuant to the same statute, whose creation by individual applicants and governance by its
board of trustees exhibit only minor, non-substantive differences from the instant case. In
addition, in asserting jurisdiction in Pennsylvania Virtual, we rejected arguments that
substantially mirror those raised by the Employer in this case.
We likewise find no merit in the Employer’s arguments that the Board should, pursuant
to Sec. 14(c)(1) of the Act, decline to assert jurisdiction over the charter school, a private, non-
profit education corporation, because of its limited impact on interstate commerce, the legislative
intent to treat charter schools as public schools, and the state’s authority to regulate the labor
relations of its public employees. The Board has rejected similar arguments in Pennsylvania
Virtual, supra, slip op. at 9-10, and Hyde Leadership Charter School, 364 NLRB No. 88, slip op.
at 7-8 (2016).
Dated, Washington, D.C., November 16, 2016
Member Miscimarra, dissenting:
I would grant the Employer’s Request for Review and dismiss the petition. The
Employer operates a charter school chartered by the Commonwealth of Pennsylvania pursuant to
the Charter School Law (“CSL”) enacted in 1997. For the reasons fully explained in my
dissenting opinions in Pennsylvania Virtual Charter School, 364 NLRB No. 87, slip op. at 11-18
(2016) (Member Miscimarra, dissenting), and Hyde Leadership Charter School, 364 NLRB No.
88, slip op. at 14-15 (2016) (Member Miscimarra, dissenting), I believe the Board should decline
to assert jurisdiction over charter schools generally and in this case.
PHILIP A. MISCIMARRA, MEMBER