4
GOP Forces Senate Bill 5 on Ohio
The absolute determination of Republicans to force Senate Bill 5 on the people of Ohio became crystal clear in the struggle that occurred in the Senate committee where the bill was sourced.
Sen. Bill Seitz is a Republican stalwart from Cincinnati. He is an attorney of the venerable law firm Taft, Stennius & Hollister, the firm that was home to “Mr. Republican” Robert Taft. As noted on its website, “The firm’s labor department led by J. Mack Swigert was instrumental in helping Senator Taft draft and pass 1947’s groundbreaking Taft-Hartley Act despite President Harry S. Truman’s veto.”1 In the Senate Bill 5 fight, however, Seitz was an early critic. He was an acknowledged expert on labor law, and certainly any bill that was going to make historic changes to Ohio labor law should have included him in its formation. Neither he nor other experts on labor law in the Senate were consulted. Seitz believed, as he said more than once, that some changes ought to be made to Ohio’s labor law. But he was opposed to Senate Bill 5 because it failed the basic test of fairness. And he did not mince words. He emphasized that, contrary to pronouncements by Sen. Jones, Sen. Bacon, and others, Senate Bill 5 unilaterally eliminated the reality of collective bargaining in Ohio.
The problem for the Republicans was that Seitz was chair of the Senate Insurance, Labor, and Commerce Committee that held Senate Bill 5, and with Seitz in charge, it was unlikely that the bill would get out of committee. So Senate President Tom Niehaus, a close ally of Gov. Kasich and an ardent supporter of the union-busting legislation, made Sen. Kevin Bacon chair instead and then kicked Seitz off the committee just 30 minutes before the committee was to meet to decide on the bill. Niehaus then replaced Seitz with Cliff Hite, a reliable pro-SB 5 senator. “It was not lost on our hundreds of thousands of police and firefighters and others that if that’s what can be done to a senator, what will happen to other workers?” Seitz told The Wall Street Journal.2
With Seitz off the committee and the threat of a tie vote gone, the committee quickly voted 7–5 to approve Senate Bill 5 and send it on to the full Senate. Ironically, Seitz and Niehaus shared the same residence in Columbus. No matter how often Niehaus emphasized that such a politically ruthless action was normal, no union member who witnessed that pure political power play aimed at their own livelihood would ever forget it. Senate Democratic Leader Capri Cafaro of Mahoning County correctly called the last-minute committee changes “an abuse of power.” A couple of weeks later, Seitz had also been bounced from his lodging with Niehaus and was looking for a new place to live in Columbus.3
After all the fireworks on March 2, the committee vote led to even more rapid action. Only a few hours after passing the committee, the full Senate picked up the bill in the afternoon. Many Senators spoke with anger and eloquence and emotion. It was, in many ways, a great debate in Ohio history. Like the one that would play out in the House, it asked basic questions about fairness, about honesty, about the role of government, about responsibility—and about the kind of state Ohioans wanted and about the values that we held.
I don’t doubt that most of the advocates of Senate Bill 5 really believed the things that they said. But I have become ever more convinced that such an ideology is rooted in economic ideas that are divorced from reality and from American traditions. There was no practical need to vilify public workers and unions. What members of the House and Senate owed to Ohio taxpayers was a more thorough understanding of the problem and a more sophisticated view of the world. Instead, much like the proponents of the Iraq War, they wanted simplistic answers for complex problems and, thus, created an unnecessary and destructive conflict.
Several of the speeches given on the Senate floor were stirring efforts. The scene was tense. Niehaus threatened the spectators on more than one occasion to be quiet or they would be ejected. In the hearing room, firefighters wore their helmets. Union buttons sprouted everywhere. But the crowd outside the Senate chambers, filling the statehouse, was so loud that their cheers and jeers could be heard as the debate was piped through the building. In the Senate chambers, because they had been warned that they would be thrown out if they made vocal their sentiments, the nearly two hundred spectators instead raised their hands over their heads and wiggled their fingers rapidly to indicate applause or agreement with speakers. Much like the whole Senate Bill 5 process itself, the experience was surreal.4
Sen. Tom Sawyer (D-Akron) recounted his experience being involved in politics when Senate Bill 133 passed in 1983 and created the existing labor law. As mayor of Akron at that time, he quickly embraced the bill because it provided for a “creative balance.” In Akron and elsewhere, he said, the new legislation ended years of labor problems. He reminded people of the labor chaos in those years. There were 183 strikes between 1978 and 1980. Now, he said there have been five strikes in the last three years and none in the last year and a half.
“We just ran through a three-week sprint to destroy collective bargaining for all public workers,” said Sen. Joe Schiavoni (D-Canfield). Jobs would not be created, he argued. Instead, Senate Bill 5 would crush job growth. The bill was driving a wedge among Ohioans, he said. It is “not working together” when you tell police they cannot negotiate for bullet-proof vests or when you tell teachers they cannot negotiate for a smaller class size. Senate Bill 5, he said, was “senseless, completely unfair, and will hurt people in so many ways. Thank God we have the ability in Ohio to put a law on the ballot so that the people can override our mistakes.”
Sen. Michael Skindell (D-Lakewood) explained the value of public workers by describing a fire in Cleveland, the difficult snowstorm that had recently crippled Ohio, and his own bicycle accident. In each of those cases, he said, public workers saved lives. “There are many myths about this bill. This is not about the budget. The last budget was balanced because collective bargaining units made concessions.” “Over $200 million in concessions” by state workers, he pointed out, and that did not include concessions offered by city, county, and school employees. “Ohio is the seventh largest state in the nation, yet we have the least number of public employees of any state in the nation. Our public employees make a huge investment for us,” Skindell said, adding that all studies demonstrate that public employees are paid significantly less than their private sector counterparts when total compensation is considered.
Some Black senators gave particularly effective speeches, perhaps because of their great sensitivity to the violation of civil rights that Senate Bill 5 represented. Sen. Edna Brown (D-Toledo) said the bill would “muzzle public workers” and warned that the elimination of longevity as consideration in layoffs would open the door to age discrimination. Sen. Eric Kearney (D-Cincinnati) continually repeated that “Haste makes waste” as he reviewed the flawed and rushed process. He cited the Ohio Constitution, Article 1, Sec. 3: “The people have the right to assemble together, in a peaceable manner, to consult for their common good; to instruct their representatives; and to petition the general assembly for the redress of grievances.” By contrast, Kearney said, the Senate had worked to inhibit the right of the people to petition the General Assembly through the rushed process and even by locking the people out of the statehouse. He went on to mock Gov. Kasich’s frequently used line that he was making Ohio “move at the speed of business.” Eliminating a 27-year collective bargaining system in three weeks is not the “speed of business,” Kearney noted; “it is a bad business decision.” You can’t create jobs by eliminating jobs, he said.
Sen. Nina Turner (D-Cleveland) gave an impassioned critique of Senate Bill 5 and defended public workers vehemently. As she began, she held up a stack of letters from constituents urging a “No” vote on Senate Bill 5. In American society today, she said, “we have three groups of people: The Have a Lots, the Have Some, and the Have Nots. Senate Bill 5 would destroy this middle group, leaving us with only two groups, the Have a Lots and the Have Nots.” Quoting the Rev. Martin Luther King and St. Thomas Aquinas, she said that any law that uplifts human personality is a just law, while any law that degrades human personality is an unjust law. Based on Aquinas, Turner observed, “Senate Bill 5 is an unjust law.” It was introduced “under the cloak and guise of fiscal crisis.” But, Turner noted, “everybody knows that our public workers did not cause this crisis.” It was introduced “under the cloak and guise” of balancing the playing field with the private sector. But she asked, “Who says the private sector has the golden standard on how to treat folks and what it means to serve their community?” Senate Bill 5 was introduced “under the cloak and guise” of taxpayer rights. “Well, my God,” Turner said, “the last time I checked, our public service employees were tax paying citizens.”
Apparently, Turner said, the proponents of Senate Bill 5 were following the old advice to “never let the truth get in the way of a good story.” She pointed out that there was no correlation between collective bargaining and budget deficits. She went on to cite other states that had banned collective bargaining and have budget deficits, too, some of them worse than Ohio’s. “The truth of the matter,” she asserted, “is that this bill seeks to vilify our public employees and turn what used to be the virtues of service into a crime . . . The truth of the matter is that Senate Bill 5 destroys the middle class and their families.” No matter how the bill was disguised, Turner maintained, “it will criminalize the right of hard-working employees to strike, making them second-class citizens to their private sector counterparts.” In a fiery conclusion, Turner told the crowd, “we cannot go back and we will not go back. As Dr. King said, the arc of justice is slow but it bends toward justice. Senate Bill 5 is unjust, Senate Bill 5 is un-American, and Senate Bill is just plain wrong.”
As Sen. Turner took her seat, the audience could not help but offer scattered applause as the roars of thousands of people in and around the statehouse filled the Senate chambers. What followed were two very different kinds of testimony from Republican attorneys Bill Seitz of Cincinnati and Tim Grendell of Chester Township.
Seitz opened with a lawyerly description of what he liked in the bill. He noted that he is not known for being a friend of unions and that his law firm, which helped create the Taft-Hartley Act, is typically on the side of the employers. He said he would leave analysis of the process and political implications of passing such a bill to others and focus on the substance. The flaws in the bill were so serious that he would be breaking with his colleagues and voting no on SB 5. Putting his well-honed speaking skills to work, he calmly moved through much of the bill, but when he got to the flaws, his voice rose as he expressed exasperation and outrage. He noted that he had tried to get amendments on many issues but had been rebuffed. For example, he said, the bill would bar school districts from picking up part of the pension costs for their teachers. Seitz noted that school boards choose to use this option because it is often cheaper for taxpayers than providing a pay raise would be, and thus gives the school boards flexibility. “Even public employers,” Seitz’s own friends and clients, he said, were writing to him and objecting to the ban on pension pickups. He read from a letter he had received from a school administration organization who asked that they not be barred from pension pickup. “Why are we being more pro-employer than the employers?” he asked exasperatedly.
Seitz harshly criticized the restrictions on the ability of safety and emergency forces to bargain for their staffing. “They would be relegated to two men on a fire truck whereas now there are four. That would be dangerous and unsafe,” he noted. The bill, he said, nonsensically sharply restricts the number of safety personnel who can join a union. Seitz also focused on what he said was the “critical” issue of layoffs of longtime employees. State employees are not participants in Social Security and thus will not receive Social Security and, by and large, do not have IRAs to depend on for retirement. “Their pension benefits are all they have for retirement,” he said, adding that their pension is one of the few advantages the public sector has over private sector workers. “When those older workers are ripped out of the workforce they get a big fat nothing” unless they have reached the “magic number,” 25 years for fire departments, 30 years for other state employees. “If they go out with fewer years than that, their pension is much reduced,” Seitz said, repeating for effect, “much reduced, ladies and gentlemen.” He had proposed an amendment to protect those who have 20 or more years in the system, but it had been rejected. In the private sector, he said, lots of people in their fifties are being “sent out to pasture” by big private corporations. “They are the biggest at-risk group today, and they are great people.” They were losing their jobs, he said, not because of bad performance but because those corporations want to “offload those higher-cost employees, get rid of them.”
At least those workers have a 401k, a defined contribution plan, and Social Security, Seitz said. “I am concerned that under this bill, our longest-serving employees are at risk of being the most ill-treated, and I do not buy for one minute” that filing a lawsuit or a federal age discrimination case “is an adequate remedy.” Seitz was also very critical of the provision to allow the state government to declare a fiscal emergency to abrogate contracts. The problem, he said, was the lack of a definition of what constituted a fiscal emergency. He said there was no reason to grant “carte blanche” to the governor or the state auditor to simply determine this issue unilaterally.
“Finally, and of greatest importance to me,” Seitz concluded, “is the woefully, woefully one-sided mechanism that this bill proposes to replace binding arbitration and the right to strike.” Once an impasse was reached after fact-finding and mediation, the employer would submit the findings, the employer’s last best offer, and the union’s last best offer to “the legislative body of the public employer.” This legislative body, such as the school board or county commission, would hold a hearing for both sides. After the hearing, the legislative body would have to accept either the employer’s or the union’s last best offer. Obviously, in such an arrangement, there would be no reason for the school board or county commission not to accept what was in reality their own offer rather than the union’s. So they would then force the employees into a new three-year contract on the employer’s terms. “What a deal,” Seitz said sarcastically. “I’m going to negotiate with Senator [Mark] Wagoner. I have the choice of my offer or Senator Wagoner’s offer. Uh, I think I’ll take my offer.” Laughter filled the hearing room. “This ‘Heads I win, tails you lose’ solution is also, in my opinion, likely unconstitutional,” Seitz said. “No man can be a judge and advocate in his own cause. That’s just Justice 101.”
“I support collective bargaining reform,” Sen. Timothy Grendell said, “and I want to stress ‘reform’”—alluding to Senate Bill 5’s virtual elimination of collective bargaining. He said that he supported much in the bill, just as Sen. Seitz did, but that the bill went too far. “I support barring public strikes as long as you have a fair method for resolving the tension between labor and management,” Grendell stated. “You cannot take away the strike without providing any fair method for resolving the disputes.” The alternative is lawsuits, and Grendell—who, like Seitz, is an attorney—said that any taxpayer who thinks that is a better solution is wrong. “Lawyers,” he said, “are more expensive than negotiators.”
“My biggest problem with Senate Bill 5,” Grendell said, “is that it does not keep the collective bargaining process as is claimed.” Under the language of the bill, “as my good friend from Cincinnati explained, there is no collective bargaining process.” With much animation, Grendell said loudly, “Senate Bill 5 replaces public worker collective bargaining with public worker collective begging.” To have collective bargaining, Grendell said, “both sides have to have something to gain and something to lose; otherwise it is not bargaining, folks.” The government side has only two things to lose: one is service, and the other is money. “Senate Bill 5 eliminates both elements, since there are no more strikes and the employer can simply impose its contract,” Grendell said. “This is not bargaining. It is simply a conversation.” Losing the ability to bargain, he said, leaves police, firefighters, corrections officers, teachers, and everybody else “as beggars.” And the employer will not budge because it knows that at the end of the process it can simply impose its will, he said. “It is downright ‘Pollyannish’ to suggest that the school board, the city council, acting as both advocate and judge, will select the union’s last best offer” over their own offer. “Why in heavens would anybody do that?” said Grendell, with disbelief in his voice. “What are they going to say: ‘We were stupid last week when we made that offer, but now we’ve been enlightened’?”
Other Republicans spoke in favor of Senate Bill 5. They were mostly informed by the misconceptions and ideology that has been discussed earlier in this book. They repeatedly implied that the budget deficit was caused by the public employees—“there is no more money left.” They wrongly suggested that the bill preserved collective bargaining and only placed commonsense restrictions on unions. They frequently compared average salaries in a community with police and fire salaries, thus comparing fast-food workers and retail clerks with highly skilled professionals who sometimes have to risk their lives. Sen. Keith Faber (R-Celina), one of the ringleaders behind Senate Bill 5, hit on all the clichés during his address: “efficiency,” “flexibility,” “budgets are under strain,” “taxpayers have had enough.” He noted that not only was Ohio competing for jobs with neighboring states but also “India and China,” apparently suggesting that American wages and work conditions be reduced to those prevalent in the developing world. Particularly glaring in the wake of Seitz and Grendell, Faber wrongly insisted that SB 5 was not about ending collective bargaining and provided the typical unfounded anecdotal evidence. He accused critics of Senate Bill 5 of “hype and hyperbole.”
Cliff Hite (R-Findlay), the reliable advocate of SB 5 who had replaced Seitz on the Senate committee, gave one of the most bizarre defenses of the bill. He recounted how he had a 30-year career in teaching and coaching, and had been asked by many teachers how he could now be attacking the profession. At Findlay High School, Hite said, he’d had a chance to play quarterback, and that year the school teachers went on strike. Hite didn’t know whether he would get a chance to play. But his football coaches crossed the picket line to coach the team, and thus, Hite said, he had a good year and went on to play at the University of Kentucky. “If my coaches had not crossed that picket line, I would not have gotten a full ride to the University of Kentucky and would not have this ring I have on my hand,” he said holding his hand aloft, as boos and laughter filled the air from the thousands of union workers in the statehouse. The Republican, who said he was proud of Shannon Jones “for sticking to her guns,” insisted he would vote for Senate Bill 5 in honor of his coaches who crossed the picket line. Many in the audience were less than impressed by Hite’s heartwarming story about union busting.
Despite the eloquence of the defenders of collective bargaining, the final vote went down nearly along party lines. The bill made it out of the Senate by a 17–16 vote. The Republicans actually had 23 out of the 33 seats in the Ohio Senate. The one-vote margin occurred because courageous Republican Senators Gayle Manning, Bill Seitz, Timothy Grendell, Tom Patton, Jim Hughes, and Scott Oelslager bravely did the right thing and voted against Senate Bill 5.
Cries of “Vote them out” and “Shame on them” shook the statehouse as the huge crowd reacted angrily to the vote. In the hearing room, Senate President Niehaus futilely pounded his gavel as the vocal criticism echoed through the building.
Having taught that day, I was watching the drama between classes from my office via news reports. In hallways and offices across the university, faculty and staff talked about this assault on our institution and the Ohio way of life. As yet unknown to the faculty, the Republicans, claiming they were open to listening, had added much more radical language to the bill that was, without question, an attempt to eliminate the AAUP in Ohio.
Only hours before the Senate voted on the “amended” document, right-wing committee members had stuffed another nearly one hundred pages of amendments into the massive bill. Hours after the passage, as we were trying to untangle the bill, we saw that the amended bill was much worse than the original version, contrary to Republican claims. It represented a new assault on faculty. Our staff at the Cincinnati AAUP that evening cranked out a new edition of our newsletter that spelled out exactly what was being done to us. The changes to Senate Bill 5 would eliminate bargaining rights of any kind for Ohio college and university faculty by declaring them “management-level employees.” Herman and I wrote in a message in our newsletter to the University of Cincinnati faculty:
If SB 5 passes, everything we as faculty have taken for granted will be up for grabs. But what’s more, the long-term quality of K–12 and higher education is up for grabs. SB 5 has great potential to undermine our ability to recruit and retain excellent faculty and staff in Ohio’s universities. We must stand up for students and their right to a quality public education.5
What we uncovered in our examination of the new bill was that it now contained a concept known as “Yeshiva language.” This refers to a 1980 U.S. Supreme Court case, NLRB v. Yeshiva University, in which the Supreme Court had held by only a narrow 5–4 margin that the faculty at Yeshiva University, a private institution, were considered “managerial employees.” As “managerial employees,” the Yeshiva faculty would not be covered by the National Labor Relations Act, and thus were denied the right to bargain collectively. Obviously, it was unfair to strip from faculty at private universities the right to collectively bargain, a right that exists in the private sector elsewhere and in the public sector as well. Justice William J. Brennan writing in the dissent maintained that:
[W]hatever influence the faculty wields in university decision-making is attributable solely to its collective expertise as professional educators, and not to any managerial or supervisory prerogatives. Although the administration may look to the faculty for advice on matters of professional and academic concern, the faculty offers its recommendations in order to serve its own independent interest in creating the most effective environment for learning, teaching, and scholarship. And while the administration may attempt to defer to the faculty’s competence whenever possible, it must and does apply its own distinct perspective to those recommendations, a perspective that is based on fiscal and other managerial policies which the faculty has no part in developing. The University always retains the ultimate decision-making authority, and the administration gives what weight and import to the faculty’s collective judgment as it chooses and deems consistent with its own perception of the institution’s needs and objectives.6
The language in SB 5 that was specifically designed to eliminate all faculty unions in Ohio read as follows:
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, 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, are management level employees.
The method by which faculty gain appointments, get promoted, gain tenure, and are awarded merit is based on a three-pronged system of responsibilities, a concept developed by the AAUP and broadly accepted nationally. These responsibilities are teaching, research, and service. So the service component is an essential part of the professional contribution of any faculty member. And Senate Bill 5 now said that if you do service—which is good for the university and the students—you can no longer be part of your faculty union.
For example, if a history department is going to hire a historian, it only makes sense that other historians, who are specialists in the field, should be involved in the evaluation of qualified applicants. This makes sense for the department, the university, and the students. People who know the field should contribute to the hiring decision, but the hiring itself is always the responsibility of the administration. It would make no sense to have the administration’s accountants, lawyers, or business managers conduct evaluations that rely on the expertise of the faculty. The same is true in promotion and tenure decisions.
And it is hard to imagine university administrators deciding curriculum issues for nonorganic chemistry or the study of medieval literature or conducting a symphony orchestra. Why would you cut the experts out of the decision-making process? And yet that was the logic now being used to destroy Ohio’s faculty unions.
If this irrational legislation had gone into effect, university professors all over the state would have had to make the decision to do the service that is so badly needed, or not to do the service so that they could continue to have the union—however badly weakened—to advocate for academic and faculty issues. Some would have chosen service, and some the union. In the wake of the imposition of this legislation, the large numbers of faculty doing service activities would have plummeted. It is also a possible interpretation of the law that if any university rules provided for faculty involvement in these service duties that faculty would then be ruled managers and ineligible for union membership automatically whether they actually participated or not.
I am one of those faculty devoted to the importance of service. In addition to my union activities (all volunteer and unpaid) and service on several college-level committees, I’ve also served four years on the Faculty Senate, served on a collegiate restructuring task force, and have twice been on provost search committees. That is in addition to several department and college committees, including one focusing on our study-abroad programs and our scholarship and honors committee. I do not know how many faculty would have maintained their enthusiastic engagement in service if the extremists at the state legislature had been successful in crushing the AAUP and depriving us of our voice at the university.
So, where did this radical approach come from, to disband faculty unions? The details of the sordid operation only became clear in the weeks ahead. Much of our knowledge of the roots of the attack can be credited to the work of Sheldon Gelman, a law professor at Cleveland State University. Making a public records request, Gelman received thousands of pages of documents showing the involvement of the Inter-University Council, its executive director Bruce Johnson, and the presidents of Ohio’s universities in this attack on their own faculty. Gelman published his findings in the Albany Law Review, and it is a richly detailed story that I cannot recommend highly enough. Gelman used the arguments of Benjamin Ginsberg to frame his analysis. Ginsberg is the author of the widely read The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters. Gelman argues convincingly that the Ohio university presidents tried to transform the universities into what Ginsberg has dubbed “the all-administrative university.” “Consistent with that view” in the Senate Bill 5 battle, Gelman argues, “the presidents identified their institutions with themselves, equating presidential authority with institutional freedom and creativity.”7
In the introduction to his book, Ginsberg explains to those unfamiliar with the way that universities work, why this is such a destructive strategy for the academic mission of the institution. Reflecting the explosion in administrative staffing in the last 20 years, he notes that “universities are filled with armies of functionaries—vice presidents, associate vice presidents, assistant vice presidents, provosts, associate provosts, vice provosts, assistant provosts, dean, deanlets, deanlings, each commanding staffers and assistants—who more and more direct the operations of every school.”8
This matters, Ginsberg argues, because “controlled by its faculty, the university is capable of not only producing new knowledge but new visions of society.” Through their teaching and scholarship, university faculty can show that “new ways of thinking and acting are possible.” Controlled by administrators instead, Ginsberg maintains, the university can never be more than a “knowledge factory, offering more or less sophisticated forms of vocational training to meet the needs of other established institutions in the public and private sectors.” Vocational training is a good thing, Ginsberg notes, but a university should be more than that. “We cannot all,” he writes, “be [University of] Phoenixes.”9
In Ohio, however, in 2011, the university presidents took actions to eliminate the biggest advocate for shared governance, their faculty unions. “SB 5 singled out university faculty,” Gelman points out, “for the most stringent treatment of any group and it did so via a provision—known as the Yeshiva amendment—that Ohio’s public university presidents drafted and promoted in secret.” Pointing to Johnson’s committee testimony in favor of Senate Bill 5 and his quoting of the Yeshiva language, Gelman writes that Johnson actually broke from Justice Powell in his view of the faculty role. Powell clearly believed the faculty members were at the core of the university and that shared governance was a very important role for the faculty. Johnson, by comparison, suggests that faculty already have too much power. Gelman goes on to further question Johnson’s interpretation of the Yeshiva decision and argues convincingly why, in the Ohio context, it should not apply.10
But Gelman’s most important contribution was tracing the decision-making process of the IUC that led to the insertion of the language into Senate Bill 5 to destroy the faculty unions. Before Kasich was even elected, at a meeting on October 12, 2010, the presidents had met and had determined to take an aggressive and unified stance with regard to “regulatory relief,” code language—as it turned out, for union busting—and the development of “charter” universities. More will be said about the charter concept in a later chapter, but faculty leaders saw this as a move toward privatization, as well as a backdoor method to abrogate union contracts.
In mid-December, after Kasich’s victory, Johnson and IUC staff first met with an aide to the governor-elect, Wayne Struble. The minutes of the next meeting, January 11, 2011, reveal that discussions among the presidents, IUC staff, and the Kasich administration representatives had resulted in action: “IUC has submitted our very aggressive recommendations to the Governor’s senior staff . . . The details are still unknown but we are making progress.” Also, importantly, the IUC had found allies: “Council members can use regulatory reform in discussion, as part of the IUC message. The business community is coming onboard with this approach, [and] we continue to garner business leaders’ support.” Obviously, the IUC had discussed its proposals with political leaders, business leaders, and administration officials—but not with the faculty.11
The presidents wrote Kasich on January 19, 2011. They said, in part, that they wanted “to make sure [he] underst[oo]d how fervently [they] support[ed] the concept of regulatory reform.” Among the areas where “reform” should be focused were the Administrative Procedures Act, Public Works Law, Civil Service, Purchasing, Office of Budget and Management regulation, public improvements, and “Public Employee Collective Bargaining.” They went on to suggest that charter universities might be a way to move on these reforms.12
While it is hard to gauge each president’s position on union busting, Carol Cartright, president of Bowling Green State University was clearly most enthusiastic. She wrote a personal follow-up letter to Kasich urging support for the IUC goals. But she went beyond the message of the IUC. She did not just support that the universities be relieved of compliance with the statutes; she asked that state universities be specifically exempted from those statutes. “Applied to collective bargaining,” Gelman points out, “that would mean eliminating rather than reforming it.”13
Why the extra hostility? The AAUP, using both state and national resources and volunteers, had worked with faculty activists at Bowling Green State to mount a successful unionization drive. In October 2010, with about 85 percent of the eligible faculty voting, BGSU faculty voted 391–293 in favor of unionization. It had been a long battle. Faculty from all over the state pitched in with their BGSU colleagues. I was one of those who volunteered my own time to walk the halls with BGSU faculty to explain the value of collective bargaining in defending shared governance, academic freedom, and keeping the focus of university resources on the central instructional and research mission. I shared the history of how valuable the AAUP was at the University of Cincinnati. The victory of the BGSU faculty was a satisfying one for many Ohio AAUP members. “The faculty at Bowling Green,” said the national AAUP’s then-president Cary Nelson, “have sent a message to the country—that shared governance and a quality education are best guaranteed by a legally enforceable union contract.”14
The victory at Bowling Green came against an administration that tried in many ways to thwart the will of the faculty. And now it became clear that if they could not win the vote, the Bowling Green administration would try to undo their own faculty’s victory and take the rest of Ohio’s faculty unions down as well.
Interestingly, in preparation for his testimony on SB 5, Johnson emailed the presidents saying he would include a mention that a minority of the presidents wanted “reform” and not “elimination” of collective bargaining. This was a bit disingenuous since, as it stood, SB 5 already effectively made collective bargaining a sham for state employees. It is, nevertheless, evidence that some of the university presidents were uneasy with such a blatant attack on their faculty, and that some clearly held more moderate views. Still, as is now clear, that was not enough for a majority of the presidents. Robert J. Pietrykowski, Cleveland State’s president, said—revealing a deep misunderstanding of collective bargaining—that the process was “deeply flawed” because sometimes administrators could not achieve complete victory. Writing from Bowling Green, Sean Patrick Fitzgerald, BGSU’s general counsel, who probably actually drafted the Yeshiva amendment that found its way into SB 5, also voiced opposition to the bargaining process. To summarize, Fitzgerald’s major complaint was that “bargaining required meetings,” and he was apparently strictly opposed to having meetings. A ridiculous objection since, as Gelman notes, most administrators spend almost all of their time in meetings—that is the nature of the job.15
On February 25, 2011, Johnson wrote to Republican Kevin Bacon, chair of the Senate committee, and proposed the Yeshiva amendment to eliminate faculty unions. David Robinson, a lobbyist for the Bowling Green administration, sent a similar amendment to Johnson and Fitzgerald. The BGSU administration, through either Robinson or Fitzgerald, seems the sure source of the Yeshiva language. “It appears that the BGSU administration,” Sara Kilpatrick, executive director of the Ohio AAUP, told The Toledo Blade when the news surfaced in September, “scorned by the faculty’s success in forming a union, decided that it would get rid of its ‘problem’ by eliminating collective bargaining rights for all professors across the state of Ohio.”16
In the uproar that followed, Fitzgerald tried to minimize his role. He said he had made the suggestion of using the Yeshiva case but that if he had not, then others would have. “From there, others ran with it,” he said. Johnson, for his part, tried to share the burden of blame for the amendment crafted by Fitzgerald, saying that it was “common sense” to university officials.17 Not surprisingly, no university president stepped forward publicly to accept responsibility.
When pressed, University of Cincinnati President Gregory Williams would only talk about how the IUC worked to reach “consensus” on issues. Specifically with regard to Senate Bill 5, he would only say that the bill now would be decided by the public in a vote. To paraphrase Williams’s public statements at the time, he would say that he had been at universities with unions and at universities without unions, and that working together would continue in either outcome, to strive for excellence at the university. His statements were, in fact, eerily similar to what other presidents were saying. University of Akron CEO Louis Proenza said, for example, that there was nothing to worry about, because things had worked well before the union was formed at the University of Akron in 2002, and things were working well currently and would continue to do so if Senate Bill 5 survived the November referendum. “There are great universities with unions and great universities without them,” Proenza said. “and we intend to be a great university.” Williams and Proenza must have received the same memo.18
One of the most consistent and flawed concepts connected with the university presidents’ drive to crush their faculty unions was the idea that doing service—a professional responsibility of every faculty member—made them managers. Managers make decisions. If university faculty actually had decision-making powers, there would certainly be much less administrative bloat. And there would be some better choices made to keep university resources focused on academics.
With Senate Bill 5 now narrowly through the Senate, it would move on to the House. Statewide, there was a historic and broad coalition coming together that would become known as “We Are Ohio.” Because of the threat to our existence and to our ability to influence quality education in the state, the AAUP chapters—both individually and at the state conference—embraced with determination outright political action for the first time in our history.
Part of our awakening was the eye-opening realization that while we had been tending to our profession, teaching students, and breaking new ground in research and ideas, the radical right-wing movement had not only been steadily crippling the nation’s educational system but was even trying to undermine our democracy. A primary driving force was the innocent-sounding but highly destructive American Legislative Exchange Council.