OHIO 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 education
institutions 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 into
the 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 employer
policy’. 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 why
faculty 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 the
community 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 persistence.

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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 Paper
No. 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.

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