Friday, April 29, 2011
I called it in 2005. From my (admittedly callow) piece then:
Picture a tenure-based, unionized, public college. Imagine, for the sake of argument, that it has chronic budget issues. (Hard to imagine, I know, but bear with me.) Imagine that a non-trivial faction of its tenured faculty are low performing, highly-paid pains in the neck. (Again, an obvious counterfactual, but let’s go with it.) Imagine that there are lots of good young Ph.D.’s out there looking for work. (Inconceivable, yes, but let’s try.) Imagine that the faculty contract is expiring, and the round of negotiations for the next contract is starting.
The administration makes the union an offer it can’t accept. (“Mandatory calisthenics at 7:00 a.m. every day, no pay raise, and every office computer will play the alma mater when you log on.”) The union tells the administration to perform an anatomical impossibility. The administration shows good faith by compromising a little (“Okay, 7:30. Sheesh, there’s no pleasing you people!”). The union goes on strike.
Here’s the good part.
With a rock-solid right-wing Supreme Court, and with the PATCO precedent on its side, the administration hires “permanent replacements” for all striking faculty. Presto, change-o, budget problems solved, low performers purged, faculty renewed with new blood. The tenured faculty are suddenly unemployed, the young freeway flyers jump at the chance for full-time employment, and budgetary equilibrium has been restored. With Republican appointees throughout the judiciary, and a solid conservative majority on the Supreme Court, the union stands about as much chance of winning as Harold Stassen.
This could actually happen (not the Stassen part).
Admittedly, it would take a pretty confident administration to try it, with a Board of Trustees willing to endure some pretty serious flak, but it could work. And if it works once, in just one place, the legal precedent would be set.
I’d write it differently now, but the basic idea is clearly there.
As a legal issue, it’s fascinating. I assume that the Board of Mt. Hood is basically bluffing, and that it expects to settle. But what if that doesn’t happen?
It seems that strikes by public employees are illegal in Oregon, so the college could claim that an illegal strike vacated any claims to tenure. At that point, barring any state laws to the contrary that I don’t know about -- I don’t live in Oregon -- the college could conceivably hire permanent replacements.
I’m not sure who would actually hire them, though. Even the smartest administrator only has subject matter knowledge in a discipline or two; staffing across fields requires other people with content expertise. If they’re gone, I’d expect a lot of hiring with fingers crossed.
The replacements themselves would be taking a hell of a risk. What if the college restores the status quo ante? What if it rehires some of the replaced folk -- no tensions there! I wouldn’t be shocked to see the replacements effectively blacklisted, at least until some union organizers decided to recruit them, too.
It’s effectively impossible to use a nuclear option like this without doing serious collateral damage. I’d expect to see enrollments drop hard in the short term, though they could bounce back quickly. Some terrific people would be lost. (And yes, some less terrific ones would, too.) Faculty-staff relations could get dicey. I’d expect lawsuits to bloom like mushrooms in springtime. The new hires would be nervous constantly, not knowing when they’d be cast out by a legal or political challenge.
On the other hand, if the college won a legal challenge, I could easily see colleges elsewhere adding this move to their playbooks. As with any nuclear weapon, it isn’t so much what happens when you actually use it, since you hope not to; it’s what happens when you have a sufficiently credible threat to scare the crap out of the other side. Win a legal challenge, and the threat becomes a lot more credible.
It may only have merited a passing mention in IHE, but I consider this one of the more fascinating stories to come along in a while. Predicting the news since 2005...
It will be interesting to see how it all plays out. MT Hood is filing an unfair labor practice AGAINST the union for failing to negotiate in good faith
Note that state employees are not covered by the (federal) Labor-Management Relations Act (as amended), because they are *state* employees; they are governed by Oregon labor law. (Here, by the way, is a link to a discussion of that law: http://www.oregon.gov/ERB/PECBAOverview.shtml).
What follows is a brief description of Oregon's procedure. Mediation appears to be mandatory, and binding arbtration appears to be required (both in "strike-prohibited units" and in other units). Teachers are not in "strike-prohibited units;" however, their employers may implement their final offers (as presented in the mediation process), and a minimum 10-day notice is required before employees can strike. Reading the summary of the law, it looks like the minimum amount of time from the beginning of bargaining until a strike can occus is about 210 days.
Given the mood around the country, the union is probably well advised to make some concessions. Even Massachusetts just passed a law taking away bargaining over health coverage away from public unions.
PS: I love the idea that people follow the rules, get an education, and work full time in their fields should be able to support their families is left-wing. Don't get me wrong; I agree. If there's one things conservatives hate, it's the middle class. But what a fucked up country I live in that said concept is even relevant.
PPS: Tenure and unions are not substitutes for one another. They solve different problems. Tenure protects people who have unpopular opinions from summary dismissal. Unions allow people who are hosed over by arbitrary management decisions to have access to grievance procedures. There is some overlap, but it is perfectly possible to harass the hell out of someone with tenure, and it is perfectly possible to fire a union member for a sufficiently unpopular opinion.
Earlier this year, I was deciding whether to go to college A, which pays well but has a rocky relationship with the faculty union; or college B, which pays significantly less. After doing a bit of research, I decided to play it safe and take the job that pays less -- the prospect of union busting, or even shut-down of some colleges is real. Even my current employer, which is in fairly good terms with the union, hired a union-busting lawyer. I don't want to be back looking for jobs again in a few years, perhaps competing with full-timers that are just laid off from previously well-paid colleges.