## Facts

- Pennsylvania Virtual Charter School (PVCS) operated statewide as a K–12 cyber charter school organized as a Pennsylvania nonprofit corporation.
- A union petitioned to represent a unit of PVCS full-time and regular part-time teachers and academic support staff.
- PVCS was formed when private individuals created a nonprofit corporation and applied for a charter under Pennsylvania’s Charter School Law.
- PVCS was governed by a six-member board of trustees composed of private individuals; trustees were not publicly elected and were not appointed or removable at will by public officials.
- PVCS received most funding through statutory per-pupil payments made by students’ resident school districts.
- Pennsylvania exercised substantial oversight through charter approval, renewal, and possible revocation or nonrenewal by education authorities, and PVCS employees participated in certain public benefit and retirement programs.
- The Regional Director found PVCS was not a “political subdivision” excluded from the NLRA and directed an election; PVCS sought Board review.

## Issues

1. Whether PVCS was a “political subdivision” of Pennsylvania excluded from the NLRA’s definition of “employer” under NLRA § 2(2).
2. Whether PVCS, as organized and governed under Pennsylvania’s charter scheme, met either prong of the Hawkins County political-subdivision test.

## Decision

- The Board affirmed the Regional Director and held PVCS was not a political subdivision under NLRA § 2(2).
- The Board applied the two-prong test from *NLRB v. Natural Gas Utility District of Hawkins County* and concluded PVCS satisfied neither prong.
- The Board directed that the representation proceeding continue and allowed the election to proceed.

## Legal Principles

- Under NLRA § 2(2), the Act does not cover “any State or political subdivision thereof.”
- Under *Hawkins County*, an entity is a political subdivision if it is either:
  - created directly by the state as a governmental department or administrative arm, or
  - administered by individuals responsible to public officials or the general electorate.
- An entity is not “created directly by the state” merely because it operates under a state-issued charter obtained through governmental approval after private formation.
- Extensive public funding, regulatory control, and participation in public benefit programs do not, by themselves, convert a privately formed and privately governed corporation into a political subdivision for NLRA purposes.
- Political-subdivision status is determined case-by-case under the *Hawkins County* framework, focusing on creation and governance rather than function or regulatory intensity.

## Conclusion

The NLRB held that PVCS—though publicly funded and heavily regulated—was privately created and governed by trustees not accountable to public officials or voters, so it was an “employer” subject to the NLRA and the Board’s jurisdiction in the union representation proceeding.


Pa. Virtual Charter Sch., 364 N.L.R.B. No. 87 (2016)