Informational Picketing Does Not Fall Under Ten-Day Statutory Notice Requirement
The statute requiring employee-union picketers to give their employers ten days’ notice does not apply to picketing that is only informational in nature, the Supreme Court of Ohio ruled today.
While the Seventh District Court of Appeals held that the statute governing when an employee-union must give notice of picketing or strikes to a public employer and the state employment relations board was unconstitutional, the Supreme Court’s decision today is based solely on interpreting the statute. Justice Sharon L. Kennedy, who authored the opinion, wrote that the statute applies to picketing related to a work stoppage, strike, or refusal to work, but not to the informational picketing at issue in this case.
The case arose during contract negotiations in 2007 between the Mahoning County Board of Developmental Disabilities (MCBDD) and the Mahoning Education Association of Developmental Disabilities, the union representing MCBDD employees.
On November 5, 2007, employer MCBDD held a board meeting in a county-owned building. Union representatives peacefully picketed outside the building before the meeting. The union didn’t notify MCBDD or the State Employee Relations Board (SERB) prior to picketing. The union and the employer agreed that the union’s picketing was related to the successor contract negotiations and the picketers were seeking a fair contract and expressing dissatisfaction with the progress of negotiations. The union didn’t strike or give written notice of any intent to strike.
MCBDD filed an unfair-labor-practice charge later that month with SERB, alleging, in part, that the union had violated the notice requirements of R.C. 4117.11(B)(8). SERB found that the union had committed an unfair labor practice by failing to give the required ten-day notice before picketing.
The union appealed to the Mahoning County Common Pleas Court, arguing that the statute is unconstitutional on its face and as applied to the specific facts of this case because it is a content-based restriction on the union’s right to free speech. The common pleas court, however, agreed with SERB’s decision.
The union appealed to the Seventh District Court of Appeals, which determined that the notice requirement in the statute is unconstitutional. Employer MCBDD and SERB appealed to the Supreme Court.
Justice Kennedy wrote in today’s opinion that the Ohio General Assembly didn’t intend for the statute to apply to informational labor picketing. “The statute applies only to picketing related to a work stoppage, a strike, or other ‘concerted refusal to work.’ Therefore, the statute was improperly applied to the union’s picketing activity in this case, and the union did not commit an unfair labor practice.”
“R.C. 4117.11(B)(8) states that it is an unfair labor practice to ‘[e]ngage in any picketing, striking, or other concerted refusal to work’ without giving the requisite notice. (Emphasis added.),” she continued. “The phrase ‘other concerted refusal to work’ would not have been used unless the previous two activities, ‘picketing’ and ‘striking,’ are also concerted refusals to work. Thus, the legislature intended the notice requirement to apply only to a specific type of picketing, i.e., picketing related to a work stoppage.”
“[W]e hold that R.C. 4117.11(B)(8) does not apply to informational labor picketing unrelated to a concerted refusal to work,” Justice Kennedy concluded. “Because the statute does not apply to the union’s picketing activity in this case, the union did not commit an unfair labor practice.”
The court’s majority opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, and Judith L. French. Justice Judith Ann Lanzinger concurred in the judgment only and wrote separately in an opinion joined by Justice William M. O’Neill.
Because Justice Lanzinger believes that R.C. 4117.11(B)(8) applies to informational labor picketing, she wrote in her concurrence that the constitutional issues should be addressed. While the statute, in her view, doesn’t regulate speech based on content, Justice Lanzinger would hold that the notice requirement “amounts to at least a ten-day ban on speech and thus is a prior restraint.”
“I would hold that justification for R.C. 4117.11(B)(8)’s advance-notice requirement is needed, because the requirement is a prior restraint on speech, and that appellants have not met their heavy burden,” she concluded. “I would hold further that the statutory ten-day notice is not a minimal intrusion on the right to free speech and thus may not be constitutionally applied in this case.”
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