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When is it an unfair labor practice to picket?

Justice Paul E. Pfeifer

March 7, 2014

Paul E. Pfeifer


Senior Associate Justice


The Supreme Court of Ohio


When is it an unfair labor practice to picket? That’s the question that we — the Ohio Supreme Court — had to answer in a case involving the employees of the Mahoning County Board of Developmental Disabilities (MCBDD), who are represented by Mahoning Education Association of Developmental Disabilities, a public union. MCBDD and the union had operated under a collective-bargaining agreement that was effective from September 2004 to August 2007. In June 2007, the union filed a notice with MCBDD and the State Employment Relations Board (SERB) to begin negotiations for a successor contract.


MCBDD held a board meeting in a county-owned building on November 5, 2007. Immediately before that meeting, union representatives peacefully picketed outside the building. Picket signs included the messages “Settle Now,” and “Tell Superintendent Duck to Give us a Fair Deal.” The picketers positioned themselves so people entering the building could see them. Everyone agrees the union was “engaged in picketing related to the successor contract negotiations,” and the picketers “were expressing their desire for a fair contract and their dissatisfaction with the progress of negotiations.” The union wasn’t engaged in a strike and hadn’t given written notice of an intent to strike.


All parties involved also agreed that the union submitted no notice to SERB or MCBDD of its intent to picket before the November 5, 2007 picketing. Afterward, MCBDD filed an unfair-labor-practice charge with SERB, alleging that the union had violated the labor law’s requirement to give 10-days notice before picketing. SERB investigated and, on April 10, 2010, concluded that the union had committed an unfair labor practice by failing to give the required ten-day notice before picketing. The union turned to the court of common pleas, asserting that the law’s notice requirement is unconstitutional on its face and as applied. The union claimed that the law is a content-based restriction on its speech and a prior restraint of its right to picket and is therefore presumed unconstitutional.


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


In defense of its decision, SERB responded that the law regulates only conduct. It argued that the notification requirement imposes no restraints on speech so long as the picketing entity gives the required notice. Furthermore, the state asserted a compelling interest in receiving notice of picketing: to provide for labor peace and prepare for disruptions that picketing might impose on public services.


The trial court concluded that the law was constitutional on its face and as applied, and it upheld SERB’s decision. The court of appeals, however, reversed the trial court’s judgment and declared the notice requirement unconstitutional. The court of appeals concluded that the law is subject to strict scrutiny as a “disfavored speaker” law – that is to say, a content-based restriction that burdens speech by persons with certain viewpoints. Applying that strict standard, the court determined that the state had failed to show that the restriction was necessary to meet a compelling state interest or that it was narrowly tailored to achieve that interest.


After that, the case came before us for a final review. By a seven-to-zero vote, we affirmed the court of appeals’ judgment, but on alternative grounds.


The law in question states that it is an unfair labor practice for an employee organization to “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 ten days prior to the action.” The notice must state the date and time that the action will commence.


When we review a law, we discern legislative intent by reading the words and phrases in context and construe them in accordance with rules of grammar and common usage. So, reading the word “picketing” in the context of the law, and particularly in the context of the phrase “picketing, striking, or other concerted refusal to work,” we found it clear that the law’s notification requirement was never intended to apply to picketing that is merely informational in nature.


The law states that it’s an unfair labor practice to “engage in any picketing, striking, or other concerted refusal to work” without giving the requisite notice. 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, as Justice Sharon L. Kennedy concluded in writing the majority opinion, the legislature intended the notice requirement to apply only to a specific type of picketing — that is, picketing related to a work stoppage.


The word “picketing” has multiple definitions. One definition describes it as “a person or group of persons stationed outside a place of employment, usually during a strike, to express grievance or protest and discourage entry by nonstriking employees or customers.” This definition would apply to the conduct associated with protests during a strike.


Picketing also refers to an activity expressing a grievance not associated with a strike or work stoppage: “A person or group of persons present outside a building to protest.”


We concluded that the legislature sought to regulate the first type of picketing. The law addresses “any picketing, striking or other concerted refusal to work,” and this language expresses the drafters’ understanding of picketing as part of a work stoppage.


If the legislature had intended the notice requirement to cover general informational labor picketing, it would have omitted the word “other.” We therefore affirmed the court of appeals’ judgment that the law cannot be applied to the union’s picketing, but for different reasons. We concluded that the notice requirement does not apply to informational labor picketing unrelated to a concerted refusal to work.


Because the law does not apply to the union’s picketing activity in this case, the union did not commit an unfair labor practice.


Paul E. Pfeifer is a senior associate justice on The Supreme Court of Ohio