Professor Manager

Full-time faculty members at Ohio public institutions are objecting to proposed legislation with big implications for their right to organize unions. Tucked deep into a 3,090-page budget bill pending before the state’s House Finance Committee is language that would reclassify professors who participate in virtually anything other than teaching and research as supervisors or managers, and therefore exempt from collective bargaining. So serving on a committee, for example, turns a professor into a manager.

The language is nearly identical to another, ultimately failed piece of state-level legislation from four years ago, but faculty members consider the new bill a serious threat -- and they’re warning legislators of the possible consequences of its success.

“What would happen if this passes, I think, is that faculty would choose simply not to do service and without that, universities would grind to a halt,” said John McNay, chair of the history department at the University of Cincinnati’s Blue Ash campus and president of the Ohio conference of the American Association of University Professors. “People ought to be aware that we volunteer to do those things.”

Earlier this week, state legislators introduced new language into the massive budget bill redefining what it means to be a supervisory or management-level faculty member at a public institution. The proposed legislation, Substitute House Bill 64, says that in addition to designated supervisors such as division and department heads, “any faculty member or group of faculty members that participate in decisions with respect to courses, curriculum, personnel or other matters of academic or institutional policy are supervisors or management-level employees.”

The bill also says that “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, and determination of educational policies related to admissions, curriculum, subject matter and methods of instruction and research are management-level employees.”

McNay, who testified against the bill during a hearing at the Ohio Statehouse Thursday, said he thought the bill demonstrated a serious lack of understanding about how universities function. Faculty members do have a certain degree of authority regarding the institution’s academic mission -- for good reason -- but that rarely extends to other kinds of decisions, he said.

“If, for example, a history department is going to hire someone to teach the Cold War, should the director of admissions decide on the qualifications of that individual?” he said. “The reason faculty members are involved in these decisions is that institutions need their expertise.”

Simply put, he said, professors aren't managers. Asked how that opinion squared with the longstanding legal precedent against tenure-line faculty unions at private institutions stemming from the 1980 U.S. Supreme Court decision Yeshiva v. NLRB -- in which the court determined that tenure-line faculty members are managers and therefore not entitled to collective bargaining -- McNay said that ruling was “unfair” and also misinterpreted the faculty role. And the authority of the tenure-line faculty member at many institutions has only eroded since 1980, he said.

Whatever one thinks of the Yeshiva ruling, it applies only to private higher education. Collective bargaining at public colleges and universities is governed by state law, and Ohio is a state with considerable faculty unionization in the public sector.

Rudy Fichtenbaum, president of the national AAUP and a professor of economics at Wright State University in Ohio, called the bill “a major threat” and a thinly veiled attack on unions and faculty generally that’s part of a national trend.

“Certainly we know that what faculty do through shared governance does not amount to real decision-making authority,” Fichtenbaum said. “In light of what’s been happening in Wisconsin, where there have been calls for the outright abolition of tenure and shared governance, it’s pretty clear what these legislators are after. This amounts to a declaration of war on the faculty.”

It’s not only full-time faculty who oppose the bill. Matt Williams, a part-time faculty activist in Ohio who stopped adjuncting 10 years ago due to the low pay and poor job security, said a decades-old prohibition against part-time faculty unionization in his state already has disempowered the majority of the teaching force there.

“We know what public higher education looks like in the absence of collective bargaining for the faculty,” Williams wrote in letter to the committee responsible for the bill. “Nearly three-quarters of Ohio’s faculty at institutions of higher education are employed on a so-called part-time or contingent basis. These highly educated, hardworking educators are denied the right to collective bargaining in violation of international law and treaty. College students are being lured onto our state university campuses under the promise of a better economic future, despite the fact that the instructional staff that they are most likely to encounter during the first and second year of school are, themselves, denied the fulfillment of this promise through an act of the Ohio General Assembly.”

It’s unclear how big a chance the bill has of passing. Representative Ryan Smith, the Republican who sponsored the bill, did not immediately return a request for comment. The Inter-University Council of Ohio also did not immediately respond. But its president, Bruce Johnson, supported a bill containing similar language in 2011, on the basis that the Yeshiva ruling should apply to public institutions as well as private. That bill made it through the state legislature and was signed into law, but was defeated soon after in a voter referendum, by a 2 to 1 margin.

But the language in that bill wasn’t nestled into a budget tome, and because it proposed limitations on other kinds of public employee unions, faculty members at that time enjoyed support from other labor activists. McNay said the “coalition” is already being mobilized to fight this new proposal.

William A. Herbert, Executive Director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College of the City University of New York, noted that this bill emerged just months after the National Labor Relations Board issued its own, much more detailed and nuanced analysis for determining whether a private sector faculty are managerial in a case involving adjunct faculty at Pacific Lutheran University. In contrast to the procedures in that case – which involved a long-term legal process including an invitation to the public to file position papers on the issue – he said, the Ohio language is so broad and developed in the absence of legislative hearings and findings or public input that it will most likely lead to legal challenges and controversies, if passed. In particular, he said, legal questions are sure to emerge about the definition of “participation” in institutional decisions.

“If a faculty member of a committee decides to no longer attend meetings of a particular committee, will they still be deemed to constitute participation, for example?” he asked.

Asked how the Ohio proposal was any different from the Yeshiva decision, Herbert said that the Supreme Court ruling doesn’t prohibit faculty members from forming unions to collectively bargain if their institution allows it – and some have. The Yeshiva decision only concerns managerial employees, he added, while the Ohio bill seeks to bar both managerial and supervisory faculty from the protections granted public employees under Ohio law to form unions and participate in collective bargaining.