Youngstown Daily Legal News

Informational picketing is permissible without notice

JESSICA SCHAMBAUGH
Special to the Legal News
Published: October 31, 2013

In an opinion released last week, the Supreme Court of Ohio ruled that employee picketers are not required to give their employers a 10-day notice of their intention to picket if it is only informational in nature.

The majority opinion written by Justice Sharon Kennedy explained that the fair labor statute requiring a 10-day notice applies only to picketing that would cease workflow, strikes or other forms of work stoppage.

The requirement is not applicable to picketing that is merely informational and not related to a refusal to work, according to the court decision.

The case stemmed from a union’s decision to peacefully picket a board meeting in November 2007 without giving any prior notice.

The meeting was held for the Mahoning County Board of Developmental Disabilities and a union representing its employees, the Mahoning Education Association of Developmental Disabilities.

The parties operated under a collective bargaining agreement from September 2004 through August 2007 and were negotiating a successor contract at the meeting.

Leading up to the meeting, union representatives “peacefully picketed outside the building,” according to case background.

They held signs that read “Settle Now,” “MEADD Deserves a Fair Contract” and “Tell Superintendent Duck to Give us a Fair Deal.”

The picketers and their signs were arranged so that they would be visible to those entering the building.

The union did not give a written notice of an intent to strike and did not engage in a strike following the meeting.

Both parties agree, however, that the union failed to submit a notice of its intent to picket to MCBDD or the State Employee Relations Board.

MCBDD filed a complaint with SERB on Nov. 27, 2007 alleging the union committed an unfair labor practice by failing to comply with notice requirements outlined in the Ohio Revised Code.

After review, SERB found that the union had committed an unfair labor practice when it failed to notify the board or the employer of its intent to picket at least 10 days in advance.

The union appealed to the Mahoning County Court of Common Pleas, arguing that the statute was unconstitutional in that it restricted their right to freedom of speech.

“Because of that presumption, the union continued, the statute can withstand a First Amendment challenge only if it reflects a compelling state interest and is narrowly tailored to effectuate that interest,” Justice Kennedy stated.

The common pleas court found that the statute was constitutional on its face and upheld SERB’s decision.

The union then appealed to the 7th District Court of Appeals, which declared the notice requirement unconstitutional and reversed the lower court’s ruling.

MCBDD and SERB both appealed to the high court and the justices accepted jurisdiction over the matter.

Upon review, the justices held that “courts have a duty to liberally construe statutes ‘to save them from constitutional infirmities.’”

They stated that they must review the plain language of R.C. 4117.11(B)(8) prior to considering its constitutional nature.

The statute states that “It is an unfair labor practice for an employee organization, its agents, or representatives, or public employees to: ...(8)Engage in any picketing, striking, or other concerted refusal to work without giving written notice to the public employer and to the state employment relations board not less than 10 days prior to the action.”

The majority maintained that it must review the words and phrases in context and construe them based on their common usage.

“Reading the word ‘picketing’ in context of the statute, and particularly in the context of the phrase ‘picketing, striking, or other concerted refusal to work,’ we find it clear that R.C. 4117.11(B)(8) was never intended to apply to picketing that is merely informational in nature,” Justice Kennedy stated.

“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.”

The majority held that the word “picketing” has numerous definitions and does not always imply a work stoppage.

In fact, it held that at times it could refer to expressing a grievance that is not associated with a work stoppage.

In a separate opinion, justices Judith Lanzinger and William O’Neill held that the word “any” in the phrase “any picketing” meant that all forms of picketing, including informational, were required to submit notification 10 days in advance.

They found that they must then review the constitutional issues surrounding the statute and stated that it “amounts to at least a 10-day ban on speech and thus is a prior restraint.”

They further maintained that SERB failed to explain why a 10-day notice was necessary in this case.

“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. I would hold further that the statutory 10-day notice is not a minimal intrusion on the right to free speech and thus may not be constitutionally applied in this case,” Justice Lanzinger wrote.

Justice O’Neill concurred with her assessment, but the remaining justices disagreed, finding that the statutory language allowed for informational picketing without the notice requirements.

“This reading is consistent with our duty to refrain from deciding constitutional issues unless absolutely necessary. Having concluded that the statute does not apply in this case, the issue of the statutes constitutionality is beyond the scope of our review,” Justice Kennedy stated.

Chief Justice Maureen O’Connor and justices Terrence O’Donnell, Paul Pfeifer and Judith French joined Justice Kennedy to form the majority.

The case is cited Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd., 2013-Ohio-4654.

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