Tactic's Father Revealed

March 9, 2011

The legal reasoning that underpins the bill that seeks to scuttle collective bargaining for faculty unions in Ohio's public colleges came from the president of the state's association of universities, he said Tuesday.

Bruce Johnson, president and CEO of the Inter-University Council of Ohio, acknowledged that he suggested the language to members of the state Senate, which was later reflected in Senate Bill 5. The bill extends to the faculty of public institutions the same reasoning that was used in NLRB v. Yeshiva University, which previously applied only to private college professors. The 1980 Supreme Court decision barred faculty members at private colleges from bargaining collectively on the grounds that they enjoyed managerial status because of their role in shared governance.

"The IUC believes the same thinking should apply to public universities," Johnson wrote in a Feb. 25 letter to state Senator Kevin Bacon. "Such a change is necessary to improve managerial processes on campus, to increase efficiencies and reduce costs. We request that state public universities simply be given the same consideration as their private counterparts."

The letter also spells out amendments to two sections of the law that governed faculty unions -- both of which were incorporated into the Senate bill, which narrowly passed, 17 to 16, last week. The amendments assert that faculty members are management-level employees if they -- either individually or through a faculty senate or similar organization -- participate in the governance of the institution, which is defined as being "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."

The adoption of the argument used in the Yeshiva case was seen as a new and unexpected tactic, and it required close familiarity with employment law in higher education. But, until now, it remained unclear who had proposed its approach.

Johnson, who has been in his position since the end of 2006 and previously served as lieutenant governor and as a state senator, said in an interview that the move was necessary because university presidents need flexibility in responding to hundreds of millions of dollars in budget cuts. "I think one of the frustrations that exists out there is that when they're negotiating, they're, in fact, negotiating with management," he said.

When asked to point to specific ways in which presidents had been limited at the negotiating table by the managerial status of faculty, Johnson cited reassignments and department reductions.

Faculty union leaders have called the bill "catastrophic," and said the argument that they are managers by virtue of their participation in governance and policy is misleading. "Giving faculty a say in these areas of shared governance doesn’t make them managers," Sara J. Kaminski, executive director of the Ohio conference of the American Association of University Professors, said last week. "It merely ensures that faculty with expertise participate in decision-making for the betterment of the institution. In the end and in almost all cases, administrations still have the final say."




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