Labor & Employment Law Daily NLRB grants review, invites briefs on jurisdiction over charter schools
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Wednesday, February 6, 2019

NLRB grants review, invites briefs on jurisdiction over charter schools

By Pamela Wolf, J.D.

The NLRB granted review and invited briefs on whether it should assert jurisdiction in charter school disputes or decline under Section 14(c)(1) for lack of substantial impact on commerce.

On February 4, 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 as to 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 thus, modify or overrule the 2016 Hyde Leadership Charter School—Brooklyn, and Pennsylvania Virtual Charter School decisions.

Insufficient impact on commerce. Section 14(c)(1) provides that the Board may decline to take jurisdiction over labor disputes involving any class or category of employers when the effect of the dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction.

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in granting review and inviting the filing of briefs.

Dissent. Board Member Lauren McFerran dissented, saying that she would deny the union’s request for review because the regional director correctly decided the jurisdictional question under well-settled law. “As the majority concedes, the charter school at issue in this case clearly is not a ‘political subdivision’ under the test set out decades ago in NLRB v. National Gas Utility District of Hawkins County, 402 U.S. 400 (1971) … and consistently applied by the Board to charter schools.[] That should be the beginning and end of our inquiry, and the Board should properly assert jurisdiction,” McFerran wrote.

Briefs. Briefs on review from parties are due February 19, 2019. Amicus briefs must be submitted on or before March 6, 2019. Replies to amicus briefs are due on March 20, 2019. A list of case participants is available here.

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