Credit: Darrow Montgomery

An ongoing legal battle between unionized teachers at Chavez Prep Middle School in Northwest D.C. and their charter school escalated today. The union filed a new unfair labor practice charge with the National Labor Relations Board, this time naming TenSquare Group, a charter school consulting firm, a joint-employer of the school. This is the fourthcharge the union has filed against the Cesar Chavez Public Charter School network since August,but the first time TenSquare has also been named liable.

In its latest complaint, the union alleges that the charter network and TenSquare have illegally changed the school’s calendar for the 2018-19 school year in ways that affect terms of employment, have bargained in bad-faith (referred to as “surface bargaining”), and have walked out of a bargaining session before its scheduled end time, “thereby disregarding their bargaining obligation under the [National Labor Relations] Act.”

Chavez Prep became the first unionized charter school in the city when a majority of its staff voted to unionize in June 2017. The union filed its first charge with the NLRB two months later, andin March, the NLRB issued its first complaint against the school, finding that the charter network violated federal labor law, both by making unilateral changes to the working conditions at Chavez Prep instead of allowing teachers to bargain over them, and by issuing rules across all four of its schools “interfering with, restraining, and coercing employees in the exercise of rights” guaranteed under the National Labor Relations Act.

A trial before an administrative law judge to address all the union allegations found meritorious is scheduled for July 24.

Jennie Tomlinson, the school librarian at Chavez Prep who sits on her union’s bargaining team, told City Paper that “over the many bargaining sessions held over the past year, it’s just become really obvious to us that TenSquare is calling the shots here.” Tomlinson is headed into her sixth year working at Chavez Prep.

The school has dismissed the earlier allegations. In March, school CEO Emily Silberstein toldCity Paper that “complaining to the NLRB” is a “common tactic in the AFT’s playbook as the union seeks to expand its membership in charter schools.”

In May, City Paperpublished an investigation into TenSquare, a consulting firm that has largely operated under the radar but has landed lucrative “school improvement” contracts with D.C. charter schools. The Cesar Chavez charter network signed a five-year $5.8 million contract with TenSquare in 2017.

In late April, Chavez Prep teachers staged two outdoor demonstrations to protest their charter’s TenSquare contract. The educators objected to their school paying the company $138,000 every month while also claiming to be unable to afford filling vacant teacher positions.

Following the protests, Silberstein and Rick Torres, the charter’s board chair, emailed the school’s staff to defend their TenSquare partnership. “To continue working in this high stakes environment, we must show immediate and dramatic improvement,” they wrote. “…TenSquare’s proven plan of support focuses on directly improving school performance while simultaneously building infrastructure and systems to ensure that Chavez can sustain improvements on our own into the future. The TenSquare team of 13 that is supporting Chavez is a group of expert practitioners – specialists in curriculum, instruction, data analysis, operations, talent management and other areas where Chavez must improve.” Silberstein and Torres credited TenSquare for helping them implement a number of changes over the past year, including re-negotiating inefficient vendor contracts and reducing excess leased space.

Josh Kern, a TenSquare partner and founder of the company did not return City Paper’s request for comment on the union’s new charge. Neither did Raymond Pascucci, the attorney representing Chavez Prep in contract negotiations. City Paper will update this post should we hear back.

Silberstein, the school’s CEO, who is also listed as an employee on TenSquare’s website, told CityPaper that the union’s latest complaint, like the others, “distorts the nature of negotiations at Chavez Prep.” With regards to the union’s changed-calendar allegation, she says: “We have discussed the calendar for the upcoming school year at the last two bargaining sessions, where management has explained the importance of designing a schedule that maximizes attendance by our scholars and our staff. Our calendar largely follows DC Public Schools, because many of our scholars have family members there, and Prince George’s County Public Schools, where many Chavez employees live and enroll their own children. When we’re out of sync with those systems, attendance and learning suffer. We will continue to negotiate with the union over the calendar, but absent an agreement, we will continue to follow the principles that have determined Chavez Prep’s calendar in recent years. The union is seeking to minimize the number of days its members work, and we are trying to maximize the number of days our scholars learn.”

As for the joint-employer issue, Silberstein says Chavez Prep teachers are “solely employed” by Chavez Schools. “Our legal and management consultants are acting in these contract negotiations as advisors and agents for our network’s board,” Silberstein adds, “just as Chavez Prep’s teachers and staff are being advised and represented by outside counsel from the American Federation of Teachers.”

The question of what constitutes a “joint-employer” is one of the most hotly contested questions in labor law. Companies have historically only been considered joint employers if they exercised “direct and immediate” control over workers. But in August 2015, the National Labor Relations Board issued a decision that expanded legal liability for companies that franchise and contract out services, putting businesses more squarely on the hook for how their contractors treat their workers. In its Browning-Ferris decision the NLRB found Browning-Ferris Industries to be a joint employer of the workers hired to staff its recycling center because Browning-Ferris “exercised control over terms and conditions of employment indirectly through an intermediary.”

In December 2017, the now-Republican-controlled federal labor boardoverturned the decision in a 3-2 vote, returning the joint-employer standard to what it had formerly been before Browning-Ferris. But in an unexpected turn of events, that decision was thenvacated two months later when the agency’s inspector general found that one of the Republican NLRB members should have recused himself from the December vote due to a conflict of interest. If he had recused himself, the vote would have been 2-2, and the Obama-era joint-employer standard would have survived. In other words, the Browning-Ferris standard remains the law. Last month the NLRB announced it now plans to address the joint-employer debate through the rule-making process, rather than through the courts.

A spokesperson for the union representing the Chavez Prep teachers told City Paper that none of this really matters for their purposes, because TenSquare should be held legally responsible no matter which joint-employer standard is used.

“Because they exert direct influence over the school, we would argue TenSquare is a joint employer under both the Obama-era Browning Ferris standard, as well as more restrictive standards supported by Republican NLRB members,” the union spokesperson said.

It is unclear what effect the charge filed today will have on the matter set for trial on July 24.

This post has been updated.