Ohio Senate Votes to Deny Collective-Bargaining Rights to Most Public-College Professors

March 02, 2011

A bill narrowly approved by the Ohio Senate on Wednesday contains even worse news for public colleges' labor unions than they had feared: In addition to scaling back the collective-bargaining rights of all state employees, it would effectively prevent many faculty members from engaging in collective bargaining at all, by classifying them as managers, exempt from union representation, if they engage in any of several activities traditionally associated with their jobs.

The language dealing with how faculty members are classified was inserted into the bill Wednesday, just hours before the full Senate vote, as part of a 99-page omnibus amendment introduced Tuesday by the bill's sponsor, Shannon Jones, a Republican.

"We were completely blindsided by it," said Cary Nelson, president of the American Association of University Professors, which has local chapters on eight Ohio public university campuses that represent faculty members in collective bargaining. "We have just started to fight," he said. "We are not going to settle for this."

The classification provision defines as "management-level employees" those faculty members who, individually or through faculty senates or similar organizations, engage in any of a long list of activities generally thought of as simply part of the jobs of tenured and tenure-track professors. Those activities include participating in institutional governance or personnel decisions, selecting or reviewing administrators, preparing budgets, determining how physical resources are used, and setting educational policies "related to admissions, curriculum, subject matter, and methods of instruction and research."

The Senate passed the measure containing such language—a bill overhauling the state's collective-bargaining laws—on Wednesday by a vote of 17 to 16, with six Republicans joining all of the Senate's Democrats in opposing it. The bill is expected to have an easier time getting through the Ohio House of Representatives, where Republicans hold a 59-to-40 majority, and to be signed by Gov. John R. Kasich, a Republican, who on Wednesday issued a written statement applauding its passage by the Senate.

"This is a major step forward in correcting the imbalance between taxpayers and the government unions that work for them," the governor's statement said. "Our state, counties, cities, and school districts need the flexibility to reduce their costs and better manage their work forces, and taxpayers deserve to be treated with more fairness."

More Limiting Than 'Yeshiva' Decision?

Mike Maurer, director of the AAUP's department in charge of union organizing, on Wednesday called the reclassification provision in the measure "virtually unprecedented."

At private colleges, many faculty members are already legally classified as managers, and are thus precluded from collective bargaining, as a result of a 1980 U.S. Supreme Court decision requiring the decertification of a faculty union at Yeshiva University. But that ruling did not cover public college faculties, and no states have legislated such a change, Mr. Maurer said.

In an interview, Mr. Maurer said the Ohio measure would actually have a more drastic impact on faculty members at public colleges than the Supreme Court's decision 31 years ago, in National Labor Relations Board v. Yeshiva University, had on faculty members at private institutions. The Yeshiva decision applied only to full-time faculty members who are determined to have significant control over managerial functions such as hiring, designing curriculum, and awarding tenure, and leaves such faculty members free to organize and operate collective-bargaining units if the college where they work does not petition the National Labor Relations Board to decertify their union. The Ohio measure, by contrast, appears to automatically preclude from collective bargaining those faculty members who engage in any management activities at all, Mr. Maurer and others said.

"It is trying, in essence, to put every faculty member in the managerial level," said Jack Fatica, a professor of accounting at Terra Community College, in Fremont, Ohio, and the president of the Terra Faculty Association, an affiliate of the American Federation of Teachers that represents faculty members on that campus.

"It is going to basically take the union away from people," Mr. Fatica said. If presented a choice between belonging to a union or having a say over aspects of their job such as curricular decisions, most faculty members will give up their union membership, he predicted.

Mr. Nelson of the AAUP quipped that about the only faculty members who would qualify for union membership under the Ohio measure are a few "on life-support machines in hospitals."

No-Strike Rule

Although the bill no longer contains a flat-out prohibition against collective bargaining by public employees, as it did originally, it nonetheless contains a long list of other provisions that the employees' unions oppose. For example, it prohibits public employees from striking, providing fines and jail time for those who do so. While allowing unions to negotiate their wages, hours, and terms of employment, it does not let them negotiate in many other areas, such as the setting of health-care and pension benefits.

The bill contains what appears, on the surface, to be a victory for public colleges' part-time faculty members and graduate-student employees: a provision that for the first time includes them in the state's collective-bargaining law and therefore allows them to form bargaining units. But Matthew A. Williams, vice president of the New Faculty Majority, an Akron-based national advocacy group for adjunct faculty members, said he suspects the provision was inserted in the bill because otherwise part-time faculty members and graduate students who work for colleges would have retained the legal right to stage strikes.

"We have been fighting for parity, but we never thought it would come in this form," Mr. Williams said. "If you don't have the ability to strike, where is the negotiating leverage?"

Where faculty members are precluded from collective bargaining because of their involvement in management activities, they might end up having less say over management than they did before. That is because the union contracts at many Ohio public colleges cover a long list of management-related issues, such as the rules governing faculty searches, the mechanisms for ensuring due process for faculty members who face discipline, and the criteria for awards of merit pay.

"You bargain, to some extent, over how much you are going to be paid. But just as big a deal as that is how it is distributed and whether it is going to be distributed in a fair way," said Rudy H. Fichtenbaum, a professor of economics at Wright State University and a member of the board of the Ohio state conference of the AAUP.