Ohio Supreme Court Rules in Mahoning Education Association of Developmental Disabilities v. SERB, et al|
Court finds for MEADD, but does not rule R.C. 4117.11(B)(8) unconstitutional.
Written by Anne McNab, Esq., Fishel Hass Kim Albrecht, LLP
The Ohio Supreme Court issued its Opinion in the Mahoning Education Association of Developmental Disabilities v. State Employment Relations Board et al., case on October 23, 2013. The Ohio Supreme Court affirmed the judgment of the Seventh District Court of Appeals, not on constitutional grounds, but based upon statutory interpretation. The Court concluded that R.C. 4117.11(B)(8) does not apply to picketing that is merely information in nature, as opposed to picking related to a work stoppage, strike, or refusal to work.
On November 27, 2007, the Mahoning County Board of Developmental Disabilities filed a claim of unfair labor practice with the State Employment Relations Board (SERB) against the Mahoning Education Association of Developmental Disabilities (MEADD) for violating Ohio Revised Code (R.C.) §4117.11(B)(8) by engaging in picketing related to negotiations for a successor agreement without providing a written ten day notice as required by the statute. On April 29, 2010, SERB found in favor of the employer.
The union filed an appeal to SERB's order claiming that ten day advance notice was unconstitutional as it inhibited free speech. The Mahoning County Court of Common Pleas upheld SERB's decision finding R.C. 4117.11(B)(8) was not unconstitutional in violation of free speech.
The union appealed the case to the Seventh District Court of Appeals of Ohio. The Seventh District held that R.C. 4117.11(B)(8), the statute requiring ten days of notice before picketing, is unconstitutional because the law singles out a "disfavored speaker" and therefore is a content-based restriction subject to strict scrutiny. In applying the strict scrutiny test, the Court of Appeals concluded that the government had not met its burden of showing that the law, requiring ten days of notice before mere picketing, was necessary to serve a compelling state interest and was narrowly drawn to achieve that interest. Accordingly, the Court of Appeals reversed the trial court's judgment and held that the provision at issue in R.C. 4117.11(B)(8) is unconstitutional.
SERB appealed the decision to the Ohio Supreme Court and the Court agreed to hear the case in November 2012.
Positions of the Parties
SERB advanced the proposition of law that "R.C. 4117.11(B)(8), in requiring public employees to give ten days' notice before picketing does not violate the First Amendment's free speech guarantee, whether on its face or as applied to non-strike related picketing." Conversely, MEADD offered two propositions of law: (1) "A statutory notice requirement that does not, itself, prevent speech, is not a content-based restriction on speech"; and (2) "The government, as employer, has far broader powers to restrict expression than does the government, as sovereign; and a court errs when it fails to consider that difference."
Fishel Hass Kim Albrecht, LLP, filed a merit brief of amicus curiae on behalf of Ohio Public Employer Labor Relations Association (OHPELRA), Ohio Public Transit Association (OPTA), County Commissioners Association of Ohio (CCAO), and National Public Employer Labor Relations Association (NPELRA), supporting Appellants SERB and Mahoning County Board of Developmental Disabilities.
Opinion of the Ohio Supreme Court
The Ohio Supreme Court did not address the constitutional issues in advanced by the Parties. Instead, the Court affirmed the judgment of the Seventh District Court of Appeals based upon statutory interpretation. The Court determined that the plain language of the statute indicates that "the notice requirement of R.C. 4117.11(B)(8) does not apply to picketing that is merely informational in nature, as opposed to picketing related to a work stoppage, strike or refusal to work." Accordingly, the Court found that the statute did not apply to the picketing activity in this case; and therefore, the union did not commit an unfair labor practice.
The Court held that the legislature did not intend R.C. 4117.11(B)(8) to apply to informational picketing. "The statute applies only to picketing related to a work stoppage, a strike, or other 'concerted refusal to work.'" In its analysis, the Court found that it R.C. 4117.11(B)(8) was never intended to apply to picketing that is merely information in nature. The statute 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. The Court concluded that the phrase "other concerted refusal to work" would not have been used unless the "picketing" and "striking" were also concerted refusals to work. If the legislature intended the notice requirement to cover general informational labor picketing, the Court indicated that "the legislature would have omitted the word 'other.'"
In conclusion, the Ohio Supreme Court affirmed the judgment of the Seventh District Court of Appeals that R.C. 4117.11(N)(8) cannot be applied to the union's November 5, 2007 picketing, but for different reasons. "Consistent with [the Ohio Supreme Court's] duty to apply the plain language of the statute as written and to construe statutes so as to avoid finding incompatibility with a constitutional provision," the Court held that R.C. 4117.11(B)(8) does not apply to informational labor picketing unrelated to a concerted refusal to work.
This Opinion will have considerable implications for Ohio's public employers. Unions no longer have the obligation to provide advanced notice to public employers for an informational picket under R.C. 4117.11(B)(8). Consequently, public employers will not have the opportunity to prepare for these informational pickets, from a security standpoint or a public relations perspective, which may lead to disruption in public services.
- SERB Findings
- Appellate Court Decision
- OHPELRA Amicus
- OSBA and OASBO Amicus
- SERB, Merit Brief of Appellant
- Mahoning County Board of DD, Merit Brief of Appelant
- Amicus Brief of AFL-CIO
- Amicus Brief of OPELA, OAPSE, OAPSE, AFSCME, ONA, OAPFF, FOP, SEIU
- Merit Brief of Appellee, MEADD
- Ohio Supreme Court's Opinion, 10/23/2013
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