Supporters of faculty unions were bracing themselves Wednesday for a vote in the Ohio Senate to bar collective bargaining by professors at the state's colleges and universities. When the vote came -- on a bill to limit collective bargaining by a variety of state agencies -- the Senate acted in a way that faculty advocates say poses dangers to their cause that were unexpected even a few days ago.
The Senate passed -- 17 to 16 -- an amended version of the bill  that included language seemingly based on a 1980 Supreme Court decision that has largely eliminated collective bargaining for private college professors.
The legislation declares to be "management," and thus ineligible for collective bargaining, all public college faculty members who either "participate in decisions with respect to courses, curriculum, personnel, or other matters of academic or institutional policy" or, "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."
So any faculty member whose institution has a faculty senate would be barred from unionizing under the bill, which has been backed by Governor John Kasich , a Republican, and is expected to be approved by the state's Republican-controlled House soon.
"This would basically exclude every faculty member except someone exiled to Mars," said Cary Nelson, national president of the American Association of University Professors, which has 11 locals with contracts  at the state's public colleges and universities. "If this is sustained, it is catastrophic."
Currently, Ohio law bars part-time faculty members from collective bargaining. The new legislation appears to lift that explicit ban, however some public colleges give adjuncts various degrees of representation on faculty senates or committees -- and it is unclear whether that would rule out adjunct unions.
As is common with complicated pieces of legislation, a large substitute bill was used for the final Senate vote Wednesday, and most parts of the bill were not the subject of public debate. Nelson said AAUP officials had not been able to determine who came up with this approach to the union issue for faculty members. He called it "a very targeted aggression toward faculty members."
Sara Kaminski, executive director of the Ohio Conference AAUP, sent a newsletter to members in the state late Wednesday asking "why are Ohio's university faculty being Yeshiva'd," referring to the 1980 Supreme Court decision, NLRB v. Yeshiva University.  That decision said that faculty members at private colleges -- because of their participation in shared governance -- are managers, but Yeshiva applies only to private institutions. State governments determine for themselves whether faculty members can unionize, and Ohio has given full-time professors that right.
"At colleges and universities, there currently exists clear distinctions between administrators and faculty. This Yeshiva-like language is an attempt to mislead and misdirect by claiming that because professors have a say in the aforementioned areas, they are managers and not employees. Giving faculty a say in these areas of shared governance doesn’t make them managers.... 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," Kaminski wrote.
Ohio's public university leaders have not gone public about their views on the moves to strip faculty members of collective bargaining. But some faculties in the state that have voted for unions have seen subsequent pushes by administrations to limit the faculty role in governance, most recently at Bowling Green State University,  which voted to unionize with the AAUP last year.
The Yeshiva decision -- while welcome to plenty of college presidents -- has been a source of great frustration to academic labor unions, which have until now been able to console themselves only with its limitation to private higher education.
Nelson said that in the years since Yeshiva, faculty rights have been eroded such that "Yeshiva as a claim about the capacity of faculty to influence university decisions is even more ludicrous than it was at the time" it was handed down.
From a strategic perspective, Nelson said that splitting faculty members off from other public employees makes it more difficult to defend academics' right to collective bargaining. The idea that employees have the right to a union is -- even if everyone doesn't agree with it -- a fairly straightforward argument to make, he said. Explaining why faculty members at state universities aren't managers (effectively having to explain and argue against the Yeshiva decision) is much more complicated, Nelson said.
He added that the AAUP in Ohio was continuing to oppose the bill in the House, but was also looking ahead to the possibility that the legislation passes. He said that union backers plan to explore the possibility of a state referendum to preserve collective bargaining rights, or to start campaigns to unseat legislators who have voted against union rights for faculty members. "We simply can't let this stand," he said.