"Decertifying" the AAUP in Ohio Public Sector Institutions of Higher Education by Legislation: Profs as Managerial Employees

"There is an assault on public sector workers throughout many parts of this country," writes Mitchell Rubinstein in his Adjunct Law Prof Blog post, Union Busting In Wisconsin And In Other Parts of the Country, And Rubinstein should know. He and I both worked for one of the very largest management-side labor law firms in the country once. Private sector labor relations was my speciality so I'm a bit out of my comfort zone to be writing about Ohio public sector labor-management relations but OH SB 5 is a substantial dilution of public sector collective bargaining rights. It's a game-changer, particularly for AAUP-represented faculty in public colleges and universities.

A provision inserted in SB 5 just hours before the Ohio Senate passed the bill would in effect decertify AAUP as bargaining representative for public sector IHE faculty. The provision would classify all public sector faculty as managers. That would make them exempt from union representation. My hunch is that would include public sector college and university tenure or tenure-track librarians who have some sort of "faculty" status.

In Ohio Senate Votes to Deny Collective-Bargaining Rights to Most Public-College Professors, The Chronicle reports

The classification provision defines as "management-level employees" those faculty members who, individually or through faculty senates or similar organizations, engage in any of a long list of activities generally thought of as simply part of the jobs of tenured and tenure-track professors. Those activities include participating in institutional governance or personnel decisions, selecting or reviewing administrators, preparing budgets, determining how physical resources are used, and setting educational policies "related to admissions, curriculum, subject matter, and methods of instruction and research.

Ohio SB 5 is expected to pass in the Ohio House and to be signed into law by Gov. John R. Kasich, a Republican. Gov. Kasich supports the bill and has just announced the appointment of James M. Petro to serve as Chancellor of the Ohio Board of Regents, effective March 14. A graduate of Case Western Reserve Law School, Petro previously served as Ohio Auditor of State (1995-2002) and Ohio Attorney General (2003-2006). I'm thinking  he is ready, willing and very able to enforce Ohio SB 5 when it is enacted into law.

Now, is this a bad thing? I guess that depends on what, if any, impact SB 5 has on tenure. In the legal academy there are some law school deans and law school library directors who give lip service to how important tenure is while whispering how they wish they could unload tenured law profs and law librarians who are and have been for years "coasting." That old argument about "academic freedom" as the justification for tenure just isn't very persuasive; hell it is downright counter-productive for executing curricular changes in the legal academy and skills-based changes required in law library staff because few in the public law library sector have the budget to increase staff. There are plenty of ways to protect intellectual freedom without granting lifetime employment.

When SB 5 passes in Ohio and public sector profs are classied as "managerial," there are two important things to watch for. One is the probable increase in part-time professors hired to replace retiring full-time profs and the second is to see what happens to tenure over the course of this decade.

The Taxpayer Sponge. There is another interesting provision in Ohio SB 5 of much more general applicablity in Ohio public employment, namely management being able to unilateral implement its final offer if agreement cannot be reached at the bargaining table. Very "private sector" like. Been there, done that. It was one of the reasons I worked in private sector negotiations. The other was private sector negotiations always boiled down to the nexus of profit earning potential, unit labor costs (meaning wage-productivity-capital investment) and ability to pay during the duration of typical multi-year contracts.

In the worst economic climate since the 1930s depression, ability to pay in the public sector is based on the ability of taxpayers to pay by way of increased taxes and levies. That sponge won't soak up any more. If private sector taxpayers in Ohio don't have lifetime job secutity, why should public sector profs?

Some would call this union-busting. I would call it time to face economic reality; it's not budget cuts in public sector education. Produce something of value to your employer or here's your pink slip. Higher education is important. Hell, foreign students come to the US and contribute substantially to the economy but public sector IHEs are no longer immune to the economic realism of the private sector. [JH]