While a significant amount of attention has been focused on the efforts to eliminate collective bargaining for public employees in Wisconsin, Ohio has received little attention. My own, unscientific, informal survey of Daily Kos diaries has found for example, that Wisconsin diaries receive far more attention than Ohio diaries and are far more likely to make the rec list. In this diary, I hope to draw a little more attention to Ohio, and also continue my occasional effort to draw attention to the negative trends impacting higher education. This diary explains how the Presidents of the University system of Ohio may have just busted all existing faculty Unions, by hiding behind the President of the Inter University Council and a little known Supreme Court case known as Yeshiva. This diary of course, expresses my own personal views. In addition, I am posting it from my home computer.
Even though I had arrived at my conclusions independently, for convenience, I will refer you to one single source that provides ample documentation of my arguments. That source is a recently issued report by the Ohio Conference of the American Association of University Professors (for the record, I am a member of the Ohio Education Association) available on the Ohio Conference Website.
If you read the report you will see that as with most academic material, the AAUP has taken the time to vet and source the assertions that are made in its publication so as to insure accuracy and completeness. Compare this to Bruce Johnson’s (CEO of the Inter University Council) completely unsupported assertions discussed below. For the record, at most Universities, when a student makes unsupported assertions in a paper or oral presentation they are usually either marked down or in some instances, depending on the specific circumstances, might be charged with academic dishonesty per University policy. So why does the CEO of the Ohio Inter University Council choose to set such a horrendous example for students?
First, you might be wondering “What do Jewish seminaries have to do with all this? Quite a bit as it turns out. Yeshiva is short for NLRB v. Yeshiva (the text of the case can be linked to from the AAUP site). In 1980, the U.S. Supreme Court overturned an NLRB ruling that the faculty of Yeshiva University in New York were professional employees and therefore entitled to collectively bargain under the National Labor Relations Act. The logic of the ruling is tortuous and rests on the fiction that because faculty at most Universities have a faculty Senate and serve on committees that make recommendations on a wide range of issues, they are managerial employees who have no collective bargaining rights. As more and more Universities have adopted a corporate model, the fiction that Universities function on a the medieval model of shared governance has become increasingly bizarre.
Second, you might be wondering Who is Bruce Johnson. In addition to the Wikipedia article, you can also go to Ohio Inter University Council Weg Page to find more information on Bruce Johnson and the Ohio Inter University Council.
Presently, Johnson is President of the Inter University Council, which represents all of the Presidents of the University System of Ohio. As far as I know, the Inter University Council took no vote on Johnson’s testimony, but to date, no University President is *publicly* willing to criticize his testimony or publicly defend collective bargaining rights. One University President, my own, has however privately indicated to me her disagreement with at least some aspects of Johnson’s testimony.
When Ohio’s Senate Bill 5 was first proposed, a significant number of State Employees were to be entirely denied any right to bargain collectively, while the rights of others, such as K-12 teachers were significantly curtailed. SB5 also did some other rather strange things: such as crossing out the salary steps of even hourly employees pretty low on the state pay scale and replacing it with an injunction that employees would be paid on “merit”. In other words, not only would school districts have to develop a merit plan for their teachers, they would also have to do it for the janitor. How this kind of change would be implemented, is unclear. And I should add that most private sector firms do in fact pay their employees a minimum and a maximum salary for most jobs. Only a very few jobs in the private sector, such as being a managing director of a major financial firm (Shearson Lehman) that goes under get bonuses of $400,000 (for those unfamiliar with Ohio, that was a reference to our governor, John Kasich). It is odd of course, how demands for accountability on public employees seem to exceed by far the demands for accountability on the private sector.
But a curious thing happened on the way to SB5 being passed by the Ohio Senate (well many curious things happened like Republican Committee members suddenly being reassigned). Collective bargaining “rights” (such as they are under this new law) were reinstated for most State Employees while new draconian restrictions were added. For example, strikes are now criminalized in the new bill. One group however, was eliminated by a deceptive sleight of hand from Collective Bargaining Rights: that group is College and University Faculty. The new language of SB5 now says:
"any faculty who, individually or through a faculty senate, or like organization, participate in the governance of the institution, are involved in personnel decisions, selection or review of administrators, planning and use of physical resources, budget preparation, and determination of educational policies related to admissions, curriculum, subject matter, and methods of instruction and research, are management level employees."
This is every single full time, and probably even some part time faculty at an Ohio institution of public education and clearly the intent is to apply Yeshiva to Ohio’s faculty. The idea clearly, at a minimum, came from Bruce Johnson. During his testimony on SB5 Johson said (I am quoting at length to provide the full flavor):
The IUC supports the changes to law that relate to higher education as recommended in Senate Bill 5. For employees of institutions of higher education, the bill is fairly straightforward – it expressly states that employees of any state institution of higher education do not have collective bargaining rights. While the IUC as a whole agrees that the current collective bargaining law equates to over-regulation.
and represents a mandate that stifles the ability of management to administer the day to day affairs of the institution in the most efficient way possible, there is some discussion among our members about how best to address this concern. A minority of IUC presidents believe that the state legislature should amend but not repeal the public sector collective bargaining laws that apply to public universities. The IUC notes that the National Labor Relations Act that governs private employers, and private
universities, does not offer the overly broad bargaining rights that ORC 4117 gives to public employees in Ohio. We believe federal law is preferable to ORC 4117 in at least four important ways:
1. The right of faculty at private universities to unionize and engage in collective bargaining is a matter of federal labor law and governed by the NLRB. In NLRB v. Yeshiva (1980), the U.S. Supreme Court held that faculty included "managerial" personnel and excluded them from the coverage under the National Labor Relations Act. Since then, the right of faculty at private institutions to collectively bargain has turned on the issue of whether the faculty exercises managerial authority.
2. Under federal law strikers can be permanently replaced.
3. The scope of collective bargaining under ORC 4117 is much broader than it is under the federal law. Under Ohio law, the employee has a right to negotiate anything that affects terms and conditions of employment. Over the course of 30 years this phrase has been liberally interpreted, resulting in a very long list of mandatory subjects of bargaining.
4. Under Ohio law, it is more difficult to decertify a union than it is under federal law.
Regardless of whether the current law is repealed or reformed, these are changes that will redefine how business is done in Ohio and on campus, but they will not eliminate our obligation and desire to treat our employees with dignity and respect. These are changes that we believe will move us forward to a better future. These are changes that will help us build an environment that encourages and rewards creativity,
that fosters efficiency, and that provides for pay increases based upon merit in order to promote even greater productivity. I ask you to support Senate Bill 5 and free public higher education from the shackles of inefficiency and inflexibility. In the context of the state's current budget crisis, this excessive regulation severely
hampers the public university's ability to fully and most efficiently utilize the scarce operating resources that we anticipate will be available next biennium.
In addition, Johnson went on to make several unsupported claims which are directly contrary to a substantial body of evidence, much of which is summarized in the AAUP report cited above. He claimed for instance that eliminating collective bargaining at one single institution (the University of Toledo) in Ohio would save $10 million dollars (he gave no documentation for this claim). While providing unsupported and undocumented claims about cost savings is bad enough in any context, it is especially problematic in an academic setting. In addition, when one makes claims in academia where there is extensive documentation that the opposite is true, the bare minimum that is expected is that one acknowledge the counter claim and give some sound reason why you think your data is better. But on this point, Johnson also fell flat. By claiming that collective bargaining is responsible for inefficiencies, increased costs and other similar problems in higher ed Johnson ignored extensive studies (referenced in the AAUP Report) that the cost inflation in higher education is caused by administrative bloat. Again, this kind of conduct would be unacceptable if engaged in by a student in a class assignment or by a Professor in the process of research. So why is it acceptable for Johnson as CEO of the IUC to make unsupported assertions in order to advance his partisan political agenda of helping Kasich bust the Unions?
So there you have it: Ohio’s University Presidents have allowed Bruce Johnson to act as their spokesperson. Consequently, I place the smoking gun that pulled the Yeshiva trigger on Ohio’s faculty in the hands of every single University President.