Informational Picketing Does Not Fall Under Ten-Day Statutory Notice Requirement

On October 23, 2013, the Ohio Supreme Court ruled that the statute requiring employee-union picketers to give their employers ten days’ notice does not apply to picketing that is only informational in nature. According to the Court, the statute, R.C. 4117.11(B)(8), only applies to picketing related to a work stoppage, strike, or refusal to work (Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd., Slip Opinion No. 2013-Ohio-4654).

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 did not 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 did not 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 Ohio Supreme Court.

The Supreme Court affirmed the judgment of the Seventh District Court of Appeals, not on constitutional grounds but based on statutory interpretation. The Court relied on the plain language of the statute and held 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.).” The Court reasoned that: “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 Court concluded that “R.C. 4117.11(B)(8) does not apply to informational labor picketing unrelated to a concerted refusal to work,” and, “Because the statute does not apply to the union’s picketing activity in this case, the union did not commit an unfair labor practice.”

Employers of union employees should be aware of this recent decision and the Supreme Court’s interpretation of R.C. 4117.11(B)(8). Like it or not, picketing unrelated to a concerted refusal to work requires no advance notice. 

Contact: Alex Kipp
216. 820.4204

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