06/10/2025: KIPP Academy Bargained in Bad Faith
Effort to block a decertification petition was rejected.
KIPP Academy Charter School, JD-51-25, 02-CA-294235 (ALJ Decision)
This case involves allegations that KIPP Academy Charter School violated the National Labor Relations Act by engaging in bad faith bargaining with the United Federation of Teachers (UFT) and committing various unfair labor practices during contract negotiations spanning over three and a half years.
KIPP Academy is a conversion charter school in the Bronx, New York, operating elementary and middle schools with approximately 70-80 bargaining unit employees. The UFT was certified as the exclusive bargaining representative in May 2021, and negotiations for a first contract began in October 2021.
The ALJ, Michael P. Silverstein, analyzed whether KIPP Academy engaged in lawful "hard bargaining" or unlawful "surface bargaining" designed to prevent reaching an agreement. After examining the totality of KIPP's conduct both at and away from the bargaining table, the ALJ determined that KIPP Academy bargained in bad faith.
Key Findings
The ALJ found several violations of the Act:
Bad Faith Bargaining: KIPP Academy violated Section 8(a)(5) by bargaining with no intention of reaching a first contract. The evidence revealed that KIPP Academy repeatedly conditioned progress on a management rights clause while simultaneously refusing to propose such a clause for over three years. Additionally, KIPP hinted at willingness to offer final and binding arbitration but never did so, despite indicating this intention for over two years.
Anti-Union Communications: In November 2022, KIPP NYC leadership sent an email to all non-Academy staff stating that "the way to grow and get better is absolutely NOT through the UFT" and threatening to withhold resources from KIPP Academy. This communication violated Section 8(a)(1).
Retaliatory Exclusion: After KIPP Academy teachers displayed a pro-union banner at a regional professional development session in September 2022, they were excluded from all future regional professional development events, violating Section 8(a)(3).
Direct Dealing: KIPP Academy principals bypassed the Union by directly soliciting employees to change their work hours and making proposals directly to employees, violating Section 8(a)(5).
Unilateral Changes: KIPP unilaterally increased instructional days, extended daily instructional time, and changed specials teachers' responsibilities without bargaining with the Union, violating Section 8(a)(5).
Threats and Promises: A KIPP administrator told a teacher that KIPP would never agree to a contract with the Union and promised benefits if employees would decertify, violating Section 8(a)(1).
Notable Context
The record revealed that KIPP NYC feared the "domino effect" of KIPP Academy reaching a contract, potentially leading other KIPP NYC schools to unionize. This fear appeared to motivate KIPP's bargaining strategy.
Over three and a half years of negotiations, the parties reached tentative agreements on only six minor contract provisions. KIPP delayed on economic proposals and never proposed a management rights clause, despite claiming it was necessary before agreeing to arbitration.
The ALJ ordered KIPP Academy to cease and desist from its unfair labor practices, rescind unilateral changes, invite KIPP Academy teachers to all future regional professional development programs, and bargain in good faith with the Union.
Significant Cases Cited:
Wendt Corp., 372 NLRB No. 135 (2023): A unilateral change is permitted only when consistent with longstanding past practice and not informed by significant managerial discretion.
District Hospital Partners, L.P., 373 NLRB No. 55 (2024): Bad faith bargaining is determined by examining the totality of a party's conduct both at and away from the bargaining table.
NLRB v. Katz, 369 U.S. 736 (1962): Employers must provide notice and opportunity to bargain before changing mandatory subjects of bargaining.
Permanente Medical Group, 332 NLRB 1143 (2000): Established the three-factor test to determine if unlawful direct dealing has occurred.
RBE Electronics of S.D., Inc., 320 NLRB 80 (1995): Recognized a limited exception to bargaining obligations when economic exigencies compel prompt action.
Centerpark LLC, 02-RD-350924 (Regional Election Decision)
In this decision dated June 9, 2025, NLRB Regional Director John D. Doyle, Jr. addresses a decertification petition filed by an individual employee against Garage Employees Union Local 272, affiliated with the International Brotherhood of Teamsters, at Centerpark Services LLC.
The petition seeks to decertify the union as the collective bargaining representative for employees at seventeen Centerpark facilities in Manhattan and Queens. Centerpark provides parking management services across New York City's five boroughs and in New Jersey.
After the petition was filed on September 19, 2024, the union filed unfair labor practice charges alleging that the employer violated several sections of the National Labor Relations Act by supporting and encouraging the decertification effort, dominating the union, taking adverse actions against union supporters, directly dealing with employees, making unilateral changes to employment terms, and refusing to bargain.
The union requested that the Region block the petition due to these pending charges and requested a merit-determination dismissal under Rieth-Riley Construction Co. The employer denied any unfair labor practices and opposed dismissal.
A critical issue in this case involves the applicable blocking charge policy. In April 2020, the Board issued a rule limiting regional directors' discretion to block petitions pending resolution of unfair labor practice charges. Although the Board reinstated its historical blocking charge policy by rule published August 1, 2024, the 2024 rule applies only to petitions filed after September 30, 2024. Since this petition was filed on September 19, 2024, the April 2020 rule applies.
Following the procedure outlined in the 2020 rule, the Regional Director directed that the petition proceed through an election with ballots to be impounded for up to 60 days after the election if the charges have not been withdrawn or dismissed by then. If a complaint issues during the 60-day period, the ballots will remain impounded until final determination of the charge. The union's request to block the petition was denied.
The Regional Director also denied the union's request for a merit-determination dismissal, noting that the underlying unfair labor practice charge was still under investigation. However, he indicated that if the investigation later warranted a merit-determination dismissal or a hearing under Saint Gobain Abrasives, appropriate action would be taken at that time.
Finding that the petitioned-for unit was coextensive with the existing bargaining unit and that no issues existed to preclude an election, the Regional Director directed a mail ballot election. The decision to use mail ballots rather than manual voting was based on the geographical dispersion of employees across multiple locations and their varied work schedules.
Significant Cases Cited
Rieth-Riley Construction Co., 371 NLRB No. 109 (2022): Establishes that Regional Directors may issue merit-determination dismissals when unfair labor practice charge allegations would undisputedly taint employee disaffection.
Saint Gobain Abrasives, 342 NLRB 434 (2004): Addresses when hearings are necessary to determine the impact of alleged unfair labor practices on representation petitions.
San Diego Gas & Electric, 325 NLRB 1143 (1998): Outlines situations where mail ballot elections are appropriate, including when voters are "scattered" geographically or due to work schedules.