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Are Tennessee Charter Schools Ripe for Union Organizing?


By Howard Kastrinsky

From 1978 until 2011, Tennessee law allowed local school boards to negotiate with unions representing their teachers.  The 1978 law only restricted the subjects over which unions could negotiate and limited unions’ ability to engage in certain economic actions, i.e, strikes.  Then, in June, 2011, Governor Bill Haslam signed a law repealing collective bargaining for teachers.  

In the intervening years, Tennessee implemented charter schools, tuition-free public schools that control their own curriculum, staffing, organization and budget.  They are operated by independent, non-profit governing bodies.  Charter schools have, in areas such as Metro, obtained superior results to other local public schools.  Some have attributed their success to their ability to more easily dismiss low-performing teachers – just like a private employer.

A recent federal decision may put unions back into Tennessee’s schools.  In Chicago Mathematics & Science Academy Charter School the National Labor Relations Board (NLRB) held  a private, nonprofit corporation that operated a Chicago charter school under Illinois law was a private employer under federal law.  Therefore, its teachers were not government employees.  Instead, the teachers were private school teachers and had the right under federal labor law to form a union – such as the Teamsters.  In March of this year, the NLRB doubled down on its Chicago Mathematics and Science Academy Charter decision and found teachers at a second Chicago charter school could also vote on union representation.

Of course, the NLRB cautioned its decision was based on Illinois charter school law and was not necessarily applicable to other states, such as Tennessee.  Those assurances are likely empty.  As with the mouse who was given a cookie and then asked for a glass of milk, among other things, the NLRB has a long history of extending its early “limited” decisions to every situation.

Furthermore, there are significant similarities between Tennessee law and the Illinois charter school law.  In Illinois, the charter school had been created by private individuals.  Here, in Tennessee, charter schools are operated by independent non-profit governing bodies.

In Illinois, the board members who run a charter school are appointed by the charter school’s own board of directors.  That fact, according to the NLRB, made the charter school operator a private employer subject to the National Labor Relations Act.  In Tennessee, the local school board must give control of the charter school to an independent governing body.  Would the NLRB find a Tennessee charter school governing body to be a private employer as well?

A corollary of the law of unintended consequences is that “no good deed goes unpunished.”  It is reasonable to assert the charter school law implemented to improve Tennessee public education is now threatened by the NLRB’s Chicago Mathematics and Science Academy decision.  

In a related matter, there are also questions whether President Obama constitutionally appointed the NLRB members responsible for the Chicago Mathematics and Science Academy decision.  That issue is currently being appealed, which outcome may affect Chicago Mathematics, but should the Tennessee General Assembly wait for that?  The General Assembly is considering improved charter school legislation during this year’s legislative session.  Should it also review Tennessee’s charter school laws to make sure our children are being taught their ABCs, and not their AFL-CIOs?

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