Riverhead Charter School

National Labor Relations Board - Board Decisions

Oct 7, 2016

29-RD-132061 (N.L.R.B. Oct. 7, 2016)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
RIVERHEAD CHARTER SCHOOL
Employer
and Case 29-RD-132061
JESSICA FARMER
Petitioner
and
RIVERHEAD CHARTER SCHOOL EMPLOYEES’
ASSOCIATION, NEW YORK STATE UNITED TEACHERS
AFT, NEA, AFL-CIO, LOCAL #22170
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). In Hyde, the Board applied the Hawkins County test to another 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 addition, in asserting jurisdiction in Hyde Leadership, we
rejected arguments that substantially mirror those raised by the Union in this case.
We likewise find no merit in the Union’s and amici’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
MARK GASTON PEARCE, CHAIRMAN
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., October 7, 2016
Member Miscimarra, dissenting:
I would grant the Petitioner’s Request for Review and dismiss the petition. The
Employer is a charter school located in Riverhead, 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), 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 would 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

Hyde Leadership, supra, slip op. at 7-8, and Pennsylvania Virtual Charter School, 364 NLRB
No. 87, slip op. at 9-10 (2016).