NLRB Holds Michigan Charter School Is Private Employer Subject To Jurisdiction of NLRB

Charter School Administrative Services, 353 NLRB No. 35 (Sept. 30, 2008), is an important decision. The issue in the case was whether a Michigan Charter school was an employer subject to the jurisdiction of the NLRB and the Board held that it was.   Charter School Administrative Services, 353 NLRB No. 35 (Sept. 30, 2008), is an important decision. The issue in the case was whether a Michigan Charter school was an employer subject to the jurisdiction of the NLRB and the Board held that it was.

The Board reached this result even though Michigan considered the school to be a governmental entity and was subject to state laws such as the Freedom of Information Act. In finding that the school was subject to the Act, the Board applied the following test and reasoned as follows:

In determining whether an entity is a political subdivision, the Board applies the test described in NLRB v. Natural Gas Utility District of Hawkins County,
402 U.S. 600, 604–605 (1971) (Hawkins County). Under
that test, an entity is exempt from the Board’s jurisdiction
as a political subdivision if it is either (1) created
directly by the State so as to constitute a department or
administrative arm of the government, or (2) administered
by individuals who are responsible to public officials
or to the general electorate. . . .
The “courts and the Board generally consider whether a
majority of the employer’s governing body—the governing
board and executive officers—is appointed by or
subject to removal by public officials.” Aramark Corp.
v. NLRB, 156 F.3d 1087, 1093 (10th Cir. 1998), vacated
in part on rehearing en banc 176 F.3d 872 (10th Cir.
Specifically, the Board looks to whether the
composition, selection and removal of the employer’s
board of directors are determined by law or by the employer’s
own governing documents. Research Foundation,
337 NLRB at 969.
The Board routinely has asserted jurisdiction over private
employers who have agreements with government
entities to provide certain types of services. For example,
in Research Foundation, supra, the employer was a private,
non-profit corporation that had a contract with the
City University of New York (CUNY), a public university.

Mitchell H. Rubinstein