The Pennsylvania Cyber Charter School

National Labor Relations Board - Board Decisions

Oct 19, 2016

06-RC-159861 (N.L.R.B. Oct. 19, 2016)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
THE PENNSYLVANIA CYBER CHARTER
SCHOOL
Employer
and Case 06-RC-159861
PA CYBER SPECIAL EDUCATION
ASSOCIATION, PSEA/NEA
Petitioner
ORDER
The Employer’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
MARK GASTON PEARCE, CHAIRMAN

1 In denying review, we agree with the Regional Director, for the reasons she 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 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).
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., October 19, 2016
Member Miscimarra, dissenting:
I would grant the Employer’s Request for Review and dismiss the petition. The
Employer is a cyber charter school based in Midland, Pennsylvania that was chartered by the
local Midland School District pursuant to the Pennsylvania Charter School Law. 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 jurisdiction over charter schools generally and I believe the Board has
improperly exercised jurisdiction over the Employer in this case.
PHILIP A. MISCIMARRA, MEMBER