S.B. 5 - Opposition Testimony - OEA Higher Education

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OHIO EDUCATION ASSOCIATION

225 E. Broad St., Box 2550, Columbus, OH 43216 PHONE: (614) 228-4526 or 1-800-282-1500 FAX: (614) 228-8771

An Affiliate of the National Education Association

Opposition Testimony: Senate Bill 5

House Commerce and Labor Committee

Thursday, March 14, 2011

Chairman Uecker and members of the Committee,

My name is Gregg Gascon, and I am the Ohio Education Association’s higher education liaison. On

behalf of the 1,900 faculty, professional and support staff higher education employees represented in

the Higher Education Division of the Ohio Education Association (OEA), thank you for the opportunity

to offer testimony on Senate Bill 5. While other staff of the OEA will speak to other parts of the bill, I

rise to address the language attached to the bill that would make faculty at public higher educationinstitutions exempt from union representation, language added during the final hours of Senate

deliberation as part of a 99-page omnibus amendment.

Currently, O.R.C. § 4117.01(L) states that “a ‘management level employee’ is a person who formulates

policy on behalf of the public employer, who responsibly directs the implementation of policy, or who

may reasonably be required on behalf of the public employer to assist in the preparation for the

conduct of collective negotiations, administer collectively negotiated agreements, or have a major role

in personnel administration… With respect to members of a faculty of a state institution of higher

education, no person is a management level employee because of the person's involvement in the

formulation or implementation of academic or institution policy.”

In the bill before this Committee, faculty members that participate in the formulation or

implementation of academic or institution policies would be deemed supervisors or managers, and

prohibited from collective bargaining. This language declares faculty to be management if they,

individually or through a faculty senate or similar organization, 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.

This past week, an investigative reporter from the Chronicle of Higher Education revealed that the

author of this language was not an elected representative of the people, but a private citizen (Schmidt,2011). A follow-up story from Inside Higher Ed found that this citizen, Inter-University Council of Ohio

president and CEO Bruce Johnson, had urged legislators to treat public college and university faculty as

management because of their historic role in shared governance, using the reasoning advanced in the

1980 U.S. Supreme Court case National Labor Relations Board v. Yeshiva University to address his

organization’s desire to “increase efficiencies and reduce costs” (Berett, 2011).



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In Ohio, public college and university faculty have been covered by the state’s collective bargaining law

since its inception. S.B. 5 would deny collective bargaining rights to over seven thousand five hundred

faculty members without the benefit of a legal review of the responsibilities of each faculty member

and without articulating an appeals process for faculty who are adversely impacted. If this bill is passed

as written, it will compel faculty members to choose to participate in either their institution’s faculty

senate or faculty union. Through this action, faculty will lose their existing right to provide input intothe strategies employed by their college or university to meet their institution’s educational goals. As

such, it can only weaken Ohio’s higher education system, one of the primary drivers of economic

development in this state.

The Ohio law providing collective bargaining protections to public sector workers was built on the

intellectual foundation of the National Labor Relations Act (NLRA) and an understanding of the legal

distinction between covered professional employees and excluded managers and supervisors that

developed from the implementation of the Wagner Act in 1935 and Taft-Hartley amendments of 1947.

Briefly, these amendments excluded supervisors from the protection of the NLRA and granted

professionals the right to join any bargaining unit in which the employees had a community of interest.

Faculty members were not considered to be managerial or supervisory employees under the National

Labor Relations Board (NLRB) until 1980. In that year, the U.S. Supreme Court heard arguments that

arose from a representation petition filed with the NLRB in 1974. That case, National Labor Relations

Board v. Yeshiva University, has been used by the author of this amendment to advance the particular

fact pattern of one private university settled 31 years ago and apply it broadly to all Ohio public higher

education faculty members a priori .

In that particular case, Yeshiva had argued that its faculty members were professionals who acted as

supervisors using ‘independent judgment in overseeing other employees in the interest of the

employer’ and as managerial employees ‘who were involved in developing and enforcing employerpolicy’. While the Board allowed the petition to proceed, the University refused to bargain, and the

NLRB sought enforcement in the Court of Appeals for the Second Circuit, which denied the faculty’s

petition. The Second Circuit’s analysis of the fact pattern of faculty responsibilities found that the

school employed a ‘shared governance’ model of higher education management, holding that, at that

particular university, faculty acted in a managerial role. That fact pattern, that model of higher

education administration, has not been observed among Ohio public colleges and universities. The

author of the amendment simply assumes it, and asks the Committee to take away union

representation of over seven thousand five hundred faculty members without evidence, without

proper consideration, and without pause. I would argue that the shared governance model observed in

the Yeshiva case is not the rule at Ohio public higher education institutions. That is one reason whyfaculty members at 10 of the 13 universities represented by the author of the amendment have chosen

democratically to be represented by a union.

The author of the amendment would have this Committee believe that today’s faculty members

employed at public higher education institutions wield management power by holding a seat on the

faculty senate, assisting in the preparation of a departmental budget, deciding on certain texts in the

context of course development, or participating in a tenure committee. While these activities are



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ubiquitous in the job descriptions of any faculty position, the inference that such responsibilities rise to

the level of a management level employee begs proof. At a minimum, such evidence should further

demonstrate the control that faculty members hold over the workforce levels at their institutions. In a

report published by the Ohio Board of Regents in 2010, the State found otherwise. According to their

latest data, the percentage of student credit hours taught by full-time faculty ranged from a high of 61

percent at public university main campuses to 47 percent at public community colleges (Ohio Board of Regents, 2010). Clearly, if full-time faculty held the management power that the author of the

amendment believed they do, part-time faculty would not be employed at such high levels among

Ohio public colleges and universities.1

The author of this amendment to S.B. 5 would also make faculty at public higher education institutions

exempt from union representation without the benefit of a legal review of the responsibilities of each

faculty member. In the Yeshiva case, the Second Circuit examined the responsibilities of the faculty

members of the University in order to determine that their authority in academic matters was

absolute.

Among the public colleges and universities of Ohio, no such review of faculty responsibilities has been

conducted. Had such a review been undertaken, it would have shown how much control the State,

institutional boards of trustees and higher education administrators exercise over policies and

practices.

Lastly, this amendment would take the legal rights granted under existing state law to public higher

education employees without articulating an appeals process for faculty who are adversely impacted.

Without such an appeals process, faculty members could be denied a right granted to similarly situated

individuals without an opportunity to redress their grievances through a formal venue. In so doing, the

facts of the particular case would be swept under the rug and the rights of the individual trampled.

Thus, I offer a succinct remedy: I urge the Committee to strike the language inappropriately making

faculty members that participate in the formulation or implementation of academic or institution

policies supervisors or managers, and therefore prohibited from collective bargaining, and revert to

the original definition of a ‘management level employee’ under O.R.C. § 4117.01(L).

1 While the report cited above indicates that only 57 percent of student credit hours taught at Ohio’s public higher

education institutions were taught by full-time faculty in 2005, at some colleges the percentage is as low as 29 percent. It is

difficult to see how faculty so dependent upon contingent staff could effectively interact with students, work collaboratively

planning a departmental curriculum, contribute to the academic life of the institution, or work to contribute to thecommunity to which the institution belongs, let alone be considered to be management.

Several studies have examined the extent to which a significant reliance on contingent faculty adversely impacts a variety of

student learning and institutional quality measures (see, for example, Jacoby, 2006; Benjamin, 2003; Ehrenberg & Zhang,

2004; Harrington & Schibik, 2001; and Umbach, 2007). The overall picture that emerges is that greater use of contingent

faculty by higher education institutions is associated with less effective interactions with students, lower curricular

cohesion, lower instructional quality, lower student learning, and lowers rates of student p ersistence.



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Thank you, Chairman Uecker and members of the Committee. I would be happy to answer any

questions of the Committee at this time.



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References

Benjamin, E. (2003). Reappraisal and implications for policy and research. New Directions for Higher

Education, 123, 79-113.

Ehrenberg, R.G., & Zhang, L. (2004). Do tenured and tenure track faculty matter? NBER Working PaperNo. W10695. Cambridge, MA: National Bureau of Economic Research.

Harrington, C., & Schibik, T. (2001). Caveat emptor: Is there a relationship between part-time faculty

utilization and student learning retention? AIR Professional File, 91, 1-10.Berrett, D. (2011).

Tactic’s father revealed. Inside HigherEd . Downloaded from

http://www.insidehighered.com/news/2011/03/09/head_of_ohio_university_association_hatche

d_idea_to_kill_faculty_unions on March 9, 2011.

Jacoby, D. (2006). Effects of part-time faculty employment on community college graduation rates. The

Journal of Higher Education, 77, 1081-1103.

Ohio Board of Regents (2010). Instruction by Faculty Type at University System of Ohio Institutions, Fall

2004 to Fall 2008. Downloaded from

http://regents.ohio.gov/perfrpt/statProfiles/Instruction_by_Faculty_Report_AU04-08.pdf on

March 7, 2011.

National Labor Relations Board v. Yeshiva University, 444 U.S. 672 (1980).

Rabban, D. M. (1989). Distinguishing excluded managers from covered professionals under the NLRA.

Columbia Law Review, 89, 1775-1860.

Schmidt, P. (2011). Anti-faculty-union proposal in Ohio came from public university association.

Chronicle of Higher Education. Downloaded from http://chronicle.com/article/Anti-Faculty-Union-

Proposal-in/126648/

on March 8, 2011.

Umbach, P.D. (2007). How effective are they? Exploring the impact of contingent faculty on

undergraduate education. The Review of Higher Education, 30, 91-123.

http://www.insidehighered.com/news/2011/03/09/head_of_ohio_university_association_hatched_idea_to_kill_faculty_unions



http://regents.ohio.gov/perfrpt/statProfiles/Instruction_by_Faculty_Report_AU04-08.pdf


http://chronicle.com/article/Anti-Faculty-Union-Proposal-in/126648/









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