Austin J. Wishart, Associate Member, University of Cincinnati Law Review
One of the fundamental labor rights of workers across the world is the right to associate with one another to collectively bargain the terms of their employment with their employers. In the United States, that right was fought for with blood and was eventually codified in the National Labor Relations Act of 1935 (“NLRA”). The NLRA, and the rights it protects, applies to a broad range of employees in the United States, yet also excludes a substantial portion of the nation’s workforce. Employees of public, state-run institutions are excluded from coverage under the NLRA. Employees of public institutions must instead turn to their home state’s labor law and institutions, largely modeled after the NLRA, for recognition and protection of their labor rights. Such labor rights in the public institution context include the ability to unionize and collectively bargain for benefits such as adequate compensation, better working conditions, or autonomy from institutional oversight.
This article will examine Ohio public sector labor law in Chapter 4117 of the Ohio Revised Code (“ORC”) as a potential means to unionizing Law Review members at a hypothetical Ohio public institution. First, Chapter 4117 of the ORC and a precedential Supreme Court of Ohio case will be examined as background. Next, the plainly read definitions, rules, exclusions, and regulations of Chapter 4117, and how these have been interpreted by the Ohio Supreme Court, will be applied to the fact pattern of a hypothetical Ohio public institution’s Law Review. Finally, if Chapter 4117 does not permit unionization of the hypothetical Law Review, modification of Chapter 4117 and modification of the workload of the Law Review will be proposed to permit the Law Review to successfully seek unionization.
Chapter 4117 of the ORC codifies the right of public employees to form, join, assist, or participate in an employee organization of their own choosing. Further, public employees may engage in concerted activity for the purpose of collective bargaining or other mutual aid and protection. Both of these rights beg the question: Who qualifies as a public employee under Chapter 4117? A public employee, under Ohio law, is any person holding a position by appointment or employment in the service of a public employer, including any person working pursuant to a contract between a public employer and a private employer. This definition however, explicitly excludes students whose primary purpose is educational training, including graduate assistants or associates, residents, interns, or other students working as part-time public employees less than fifty percent of the normal year in the employee’s bargaining unit. Under a plain reading of Chapter 4117 of the ORC, students at Ohio public institutions are broadly precluded from claiming a right to unionize as public employees.
The Supreme Court of Ohio has, however, offered guidance and further nuance in the case of graduate students attempting to unionize at public institutions. When the Court found that graduate medical students seeking to unionize pursuant to Chapter 4117 devoted at minimum seventy-five percent of their working time to patient care, it became inarguable for the Court to conclude that the students were precluded from unionizing. While the students were technically enrolled at their institution as students, their performance of patient care for seventy-five percent of their working time placed them within the Court’s interpretation of Chapter 4117’s public employee definition. Had the medical graduate students spent less than fifty percent of their working time on patient care, within the bargaining unit of medical employees, the Court would have had no issue precluding them from unionizing, as they would squarely fall under Chapter 4117’s student exception. Thus, under the Supreme Court of Ohio’s interpretation of the student public employee exception, graduate students who spend more than fifty percent of their working time working, and not merely studying or engaging in other student activities, are not excluded from the rights, procedures, and protections of Chapter 4117.
As it currently stands, the plain reading of public employee in Chapter 4117 of the ORC likely precludes standard Law Review members at a public institution from unionizing. Law Review members are students in law school and spend the bulk of their time in class and doing homework for those classes. Law Review membership, like membership in Moot Court, another journal, or in any of the many clubs and student organizations, is an extracurricular that, while earning the student academic credit, takes up a minority of students’ time when compared to classes and coursework. However, the interpretation of the statute by the Supreme Court of Ohio in Univ. Hosp., Univ. of Cincinnati Coll. of Med. v. State Emp’t Relations Bd. indicates that otherwise excluded graduate students may fall under Chapter 4117 protection if they spend over fifty percent of their working time on their work. In the case of a Law Review, law student members may fall under that statute if they spend over fifty percent of their working time on Law Review work. This work typically includes, but is certainly not limited to, cite checking, writing articles, managing publication, scheduling events, and meeting with administration.
An over-fifty-precent division of work-time is well within the realm of possibility. By their second year of law school, when students compete to join Law Review, students have likely reduced the number of credit hours they are receiving from traditional doctrinal courses. For example, at the University of Cincinnati College of Law, first year students complete thirty three of their required ninety hours of academic credit, leaving only fifty seven hours of credit to be completed over two more years. These remaining credits may be earned by completion of additional doctrinal courses, from extracurriculars such as Law Review and Moot Court, or experiential learning in judicial and legal internships. Such credit-earning extracurricular activities lower the required classroom time for second and third year law students, while increasing the amount of time that these students work instead of study.
Continuing with the hypothetical example of a University of Cincinnati law student, they are required to earn approximately fourteen hours of academic credit per semester in their second and third years. In a given semester, it is not difficult to imagine that they may take three traditional courses totaling nine credit hours. To achieve the remaining five credits needed to exceed the fourteen credit hour threshold, the student may earn two hours from Law Review membership and three from an internship. This hypothetical student’s schedule thus meets the fourteen credit hour threshold with nine hours of classroom credit, two hours of Law Review credit, and three hours of internship credit. Under this hypothetical, approximately sixty percent of the students credit comes from classes and twenty percent from their internship, totaling eighty percent of their credit coming from what is traditionally considered student work. With only twenty percent of their credit coming from Law Review, the hypothetically University of Cincinnati law student is seemingly well-below the fifty-percent threshold established by the Ohio Supreme Court. However, academic credit hours as decided by the university and actual working hours are seldom aligned.
A student on Law Review is likely to spend far more of their academic time on Law Review work than their academic credit hours reflect. Trainings, meetings, writing topic decision, research, pre-emption checking, drafting, Bluebooking citations, meeting with editors, substantively editing, citation editing, re-drafting, ad-nauseum, takes far more time and effort than a two credit hour label suggests. While a transcript may approximately reflect twenty percent of the semester being spent on the Law Review, the actual, day-to-day work of law students is likely to yield a much greater number. As students take fewer classes and become more proficient in reading their casebooks, time spent studying for traditional classroom courses is likely to decrease. Such a decrease in time spent leads to a three credit hour course in second or third year, while worth the same academic credit, being less actual work than a first year course.
Due to this decrease in actual time spent by second and third year Law Review members on their classroom courses, coupled with the amount of actual work that is done by members of the Law Review, it is not outside the scope of possibility that Law Review members spend over fifty percent of their working time on Law Review work. If this is the case then, like the medical graduate student facing the Ohio Supreme Court, members of the Law Review may fall outside of the student exception in ORC Chapter 4117. If Law Review members fall outside of the student exception, they are able to unionize and collectively bargain with their public institution, as is their right guaranteed under Chapter 4117.
It is possible, however, that an Ohio court would find this argument unpersuasive and instead rule that Law Review students do not spend over fifty percent of their time working, thus they fall under the student definition of Chapter 4117. In this instance, the language of Chapter 4117 could be modified to permit Law Review unionization. This could be done by modifying the student definition of Chapter 4117(C)(11) to a lower percentage threshold. The threshold could be lowered to, for example, twenty five percent. Doing so would lower the bar for graduate students, Law Review membership or not, to prove that they work over the threshold percentage prescribed by Ohio statute. It would be much easier to prove that Law Review students spend twenty five percent of their time on the Law Review, which consists of twenty percent of their academic credit, than fifty percent. Such a change would require a plea to the Ohio legislature to exercise their authority to modify the statute and the chances of that change occurring is unknown.
Alternatively, the Law Review could rely on a tactic that is within their ability as an independent organization: increasing student work and time commitments. While this tactic would likely be justifiably unpopular with members wishing to minimize the work they do on the Law Review, increasing work and time commitments would increase the number of hours that members spend on Law Review work. This increase would push the already high percentage of time spent on Law Review work further towards or exceeding the fifty percent threshold as established by Chapter 4117 and interpreted by the Supreme Court of Ohio.
Ultimately, the Law Review could pursue both tactics simultaneously as they are not mutually exclusive. The Law Review could, within its own power, increase work and time commitments for members while also petitioning the Ohio legislature to modify the percentage found in Chapter 4117’s student exception. Whether both options are pursued simultaneously, or one is pursued in lieu of the other, the Law Review can take steps towards organizing to pre-empt a change in Chapter 4117 or an increase in workload. The Law Review could issue a survey to members to gauge unionization interest, discuss the process of unionization with members and the administration, and declare an intent to begin an organization campaign with the administration. While this campaign may ultimately be unsuccessful, the mere discussion of gauging interest in organization could serve as a useful piece of leverage in this hypothetical Law Review’s relationship with their hypothetical institution’s administration.
Unionization of a Law Review at an Ohio public institution, under a plain reading of the student exception in Chapter 4117 of the ORC, is likely impossible. However, the interpretation of the statute set by the Supreme Court of Ohio opens an avenue on which Law Review members may seek unionization. Should Law Review members be able to demonstrate that they spend over fifty percent of their working time on Law Review work, with other student responsibilities and activities occupying a minority of their time, a credible case may be made for unionization pursuant to Chapter 4117.
If a court could find that Law Review members do not spend over fifty percent of their working time on Law Review work, a plea to the Ohio legislature to lower the percentage of time required in Chapter 4117 or the Law Review increasing the amount of work and time commitments for members could allow the Law Review to reach the percentage threshold to fall outside the student exception of Chapter 4117. Alternatively, both tactics could be pursued simultaneously. While the success rate of a Law Review unionization effort is unknown, as this author is unaware of any attempt to do so in Ohio history, a credible threat of unionization is a powerful tool to bargain with an employer. Should an Ohio Law Review require leverage in bargaining for better working conditions or autonomy from institutional oversight, a credible threat of unionization may be fist in the velvet glove needed for Law Review workers to bargain for what they need.
See Labor Wars in the U.S., American Experience, https://www.pbs.org/wgbh/americanexperience/features/theminewars-labor-wars-us/
29 U.S.C. § 152(2)-(3).
29 U.S.C. § 152(2).
Univ. Hosp., Univ. of Cincinnati Coll. of Med. v. State Emp’t Relations Bd., 587 N.E.2d 835 (1992).
Id. at 839.