In recent years, there has been an uptick in union organizing focusing on California charter schools. Traditionally, education related labor groups focused on organizing large public school districts, but with over 1,200 charter schools in California, groups like the California Teachers Association have shifted gears to try to bring unions into charter schools. Such organizing efforts often occur surreptitiously, and relatively quickly; if charter schools are not vigilant in their approach to labor groups, they can quickly be entangled in lengthy union negotiations which can divert attention from curriculum development and student growth.

Under the Educational Employment Relations Act (the “EERA”), which governs labor relations in public and charter schools in California, a labor organization may be certified as an exclusive bargaining representative simply by proof of majority support. Unless the school disputes the bargaining unit sought by the union, the school is obligated to recognize the union, generally without an election. Once a showing of majority support is made, the Public Employment Relations Board (“PERB”) will certify a union and require the employer to begin bargaining in good faith with the union. From that point forward, the school must meet and negotiate in good faith with the union over all terms and conditions of employment, and is generally unable to make changes to these matters pending the exhaustion of negotiations.

In addition, and even prior to full negotiations with an “exclusive representative,” the EERA requires the school employer to “meet and confer” with an “employee organization” over fundamental employment matters. While this latter obligation is less onerous that full-fledged traditional bargaining, it is important and may be used by a group of teachers as a precursor to full bargaining prior to the time the Union gains majority support. In either case, failure to recognize the bargaining obligation conferred under the EERA may subject the public school employer to an Unfair Practice Charge to be litigated before the PERB; the predominate agency which adjudicates cases brought under the EERA.

Based upon growing union interest in gaining new membership, the battle for unionizing charter school teachers has increased dramatically in recent years. With over 1,200 charter schools in California, and only a small fraction of those schools being represented by a labor union, unions have increased focus on targeting charter schools to increase union membership. Recently, CTA targeted California Virtual Academies (“CAVA”), a group of eleven separately managed and operated online charter schools spanning across California. PERB, in an unprecedented decision, granted CTA’s petition to represent all CAVA schools as a collective group, even though each CAVA charter is demonstrably a separate public school employer under the EERA. PERB’s landmark decision makes it much easier for the CTA or other education union to organize certificated teachers who work for charter schools which are commonly branded or within a charter network. The CAVA decision will have far-reaching impact as UTLA is engaged in ongoing organizing efforts in Los Angeles on Alliance College Ready Schools, a group of twenty-six different charter schools.

PERB’s recent decisions affecting union and employee rights to organize have been decidedly pro-union, and there is no reason to expect this trend to reverse. Therefore, it is critical that charter schools be vigilant of employee rights and nascent union organizing. Under the EERA, a public school employer may not threaten, interfere, coerce, or discriminate against employees because they have exercised their rights to join a union or otherwise engage in union organizing activities. However school management also has countervailing rights to non-coercive and non-threatening statements of facts and opinions about unions and union activities; such messaging should be done with the advice of counsel. Moreover, under the EERA, teacher unions may access employee work areas, bulletin boards, mailboxes and other means of communicating with teachers they seek to represent. PERB has taken a liberal view of union access rights, and has held that, in its efforts to organize and represent teachers, a union may have employee email addresses and disseminate its message and literature over the school’s email server. It is also recommended that any access restrictions policies, or other rules or policies which may affect union organizing rights under the EERA be in writing, and narrowly constructed under the guidance of knowledgeable legal counsel. We further recommend that any such rules be formally adopted by the charter school’s governing body prior to the discovery of a union organizing campaign.

Finally, in the event of union organizing, the charter school employer should consider whether to seek jurisdiction under the National Labor Relations Board (“NLRB”) under the National Labor Relations Act (“NLRA”), which is the private-sector analog to the EERA. In some cases, charter schools have done so successfully to gain advantage of the NLRB’s election procedures prior to union certification. Deferral to NLRB jurisdiction and election procedures may give teachers a second chance to reject union representation after having signed a union card or petition without full information about union dues and fees, and the uncertainty of union representation and negotiations.

Unfortunately, for charter school management and teachers alike, union organizing may come quickly, and in stealth, making it difficult or impossible to get all the information out before it is too late. Vigilance and knowledge are the key and it is never too early to air out the issues so that teachers may know what they are getting into before they sign union cards or petitions. If you believe your charter school may be a union target, or that union organizing may be underway, please call us immediately so that you may know your rights and obligations under all applicable laws and regulations.