Portage Cty. Educators Assn. for Dev. Disabilities - Unit B, OEA/NEA v. State Emp. Relations Bd. , 2020 Ohio 7004 ( 2020 )

[Cite as Portage Cty. Educators Assn. for Dev. Disabilities - Unit B, OEA/NEA v. State Emp. Relations Bd.,
2020-Ohio-7004.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
PORTAGE COUNTY EDUCATORS : OPINION
ASSOCIATION FOR DEVELOPMENTAL
DISABILITIES – UNIT B, OEA/NEA, :
CASE NO. 2019-P-0055
Appellant, :
- vs - :
STATE EMPLOYMENT RELATIONS :
BOARD, et al.,
:
Appellees.
Civil Appeal from the Portage County Court of Common Pleas.
Case No. 2018 CV 00408.
Judgment: Reversed; remanded.
Ira J. Mirkin, Richard T. Bush, and Stanley J. Okusewsky, Green, Haines, Sgambati
Co., LPA, 100 Federal Plaza East, Suite 800, P.O. Box 849, Youngstown, OH 44501
(For Appellant).
Ronald J. Habowski, 1931 Basswood Drive, Kent, OH 44240 (For Appellee Portage
County Board of Developmental Disabilities).
Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th
Floor, Columbus, OH 43215; and Lisa A. Reid, Assistant Attorney General, 615 West
Superior Avenue, 11th Floor, Cleveland, OH 44113 (For Appellee State Employment
Relations Board).
TIMOTHY P. CANNON, P.J.
{¶1} This appeal stems from a labor relations dispute between the Portage
County Educators Association for Developmental Disabilities–Unit B, OEA/NEA (“the
Association”) and the Portage County Board of Developmental Disabilities (“the Board”),
during which members of the Association picketed outside the private residences of six
Board members and outside the place of private employment of one Board member.
The State Employment Relations Board determined the Association committed an unfair
labor practice. At issue on appeal is whether the statute upon which that determination
was based is an unconstitutional restriction on speech. The lower court affirmed its
constitutionality. Based on our decision that the statute is content-based, not necessary
to serve a compelling state interest, and not narrowly tailored to achieve those interests
by the least restrictive means, we reverse the decision of the Portage County Court of
Common Pleas and remand the matter for further proceedings.
Factual and Procedural History
{¶2} The Board and the Association were parties to a collective bargaining
agreement effective from September 1, 2013, through August 31, 2016 (“the
Agreement”). The Agreement contained a grievance procedure that culminated in final
and binding arbitration. On September 28, 2016, the parties began negotiations for a
successor agreement. They entered into mediation on March 30, 2017.
{¶3} On September 15, 2017, the State Employment Relations Board (“SERB”)
received from the Association a Notice of Intent to Strike or Picket. On October 4, 2017,
the Board declared an impasse in negotiations pursuant to the parties’ Agreement. The
Association went on strike that same day. The strike concluded on November 27, 2017,
and the parties entered into a successor agreement on November 28, 2017.
{¶4} During the strike, members of the Association engaged in picketing related
to the successor contract negotiations, a labor relations dispute, on nine separate days
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during the month of October 2017. The picketing took place on public sidewalks and/or
public streets outside of, in front of, or across the street from the residences of six Board
members, as well as the place of private employment of one of those Board members.
The Association members who engaged in the picketing did so under the inducement
and/or encouragement of the Association. The Association members were aware they
were picketing the residences of the six Board members and the place of private
employment of one of the Board members.
{¶5} The Board filed seven unfair labor practice charges with SERB against the
Association, pursuant to and in accordance with R.C. 4117.12(B) and O.A.C. Rule
4117-7-01. The Board alleged the Association had violated R.C. 4117.11(B)(7) and
(B)(8). The (B)(8) allegations were subsequently dismissed for lack of probable cause.
With regard to the remaining allegations, the parties agreed to stipulate the case directly
to SERB and submitted joint stipulations of fact.
{¶6} The Association challenged the constitutionality of the statute at the
hearing level. SERB declined to determine the constitutional validity of the statute in the
administrative action due to its lack of jurisdiction over constitutional claims. State ex
rel. Rootstown Local School Dist. Bd. of Educ. v. Portage Cty. Court of Common Pleas,
78 Ohio St. 3d 489, 494 (1997), quoting State ex rel. Columbus S. Power Co. v.
Sheward, 63 Ohio St. 3d 78, 81 (1992) (“‘It is settled that an administrative agency is
without jurisdiction to determine the constitutional validity of a statute.’”).
{¶7} On May 3, 2018, SERB found the Association had violated R.C.
4117.11(B)(7), which provides:
(B) It is an unfair labor practice for an employee organization, its
agents, or representatives, or public employees to: * * * (7) Induce
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or encourage any individual in connection with a labor relations
dispute to picket the residence or any place of private employment
of any public official or representative of the public employer[.]
{¶8} The Board is a “public employer” as defined in R.C. 4117.01(B). The
Board members are public officials and representatives of the Board. The Association
is an “employee organization” as defined in R.C. 4117.01(D) and is the exclusive
representative for all Service and Support Administrators as defined in R.C. 5126.15
and O.A.C. 5123-4-02 (previously defined in O.A.C. 5123:2-1-11).
{¶9} The Association filed an administrative appeal in the Portage County
Court of Common Pleas, challenging the constitutionality of the statute on its face and
as applied. It argued R.C. 4117.11(B)(7) is an unconstitutional content-based restriction
on speech, in violation of the First Amendment to the United States Constitution.
{¶10} The lower court upheld SERB’s decision in a March 27, 2019 judgment
entry. The lower court held that R.C. 4117.11(B)(7) is content-neutral, constitutional,
and enforceable.
Assignment of Error
{¶11} From this judgment, the Association appealed to this court and raises one
assignment of error for our review:
The lower court erred in affirming the State Employment Relations
Board’s unfair labor practice determination against Appellant
Association because such determination and the statute upon
which it was based, R.C. 4117.11(B)(7), ban constitutionally
protected picketing activity in violation of the rights of the
Association and its members to free speech and equal protection.
{¶12} We review challenges to the constitutionality of a law de novo. State v.
Weaver, 11th Dist. Trumbull No. 2013-T-0066, 2014-Ohio-1371, ¶10; Am. Fedn. of
State, Cty. & Mun. Emps. Local # 74 v. Warren, 177 Ohio App. 3d 530, 2008-Ohio-3905,
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¶30 (11th Dist.). “De novo review is independent from and without deference to the trial
court’s determination.” State v. Henderson, 11th Dist. Portage No. 2010-P-0046, 2012-
Ohio-1268, ¶10 (citation omitted).
{¶13} R.C. 4117.11(B)(7) is part of the state of Ohio’s Public Employees
Collective Bargaining Act, which was enacted in 1984 to govern labor relation disputes
between the government as an employer and its public employees. It was “intended to
create a comprehensive scheme to facilitate the orderly resolution of or to minimize
labor relation disputes involving public employees by creating clarity and stability in an
area that previously had none.” Harrison Hills Teachers Assn. v. State Emp. Relations
Bd., 7th Dist. Harrison No. 15 HA 0008, 2016-Ohio-4661, ¶32, citing State ex rel.
Dayton Fraternal Order of Police Lodge No. 44 v. State Emp. Relations Bd., 22 Ohio
St.3d 1, 5 (1986).
{¶14} The statute prohibits an “employee organization,” such as the Association,
from “induc[ing] or encourag[ing] any individual in connection with a labor relations
dispute,” such as the Association members, “to picket the residence or any place of
private employment” of any “representative of the public employer,” such as the Board
members. At issue is whether R.C. 4117.11(B)(7) is an unconstitutional content-based
regulation of speech.
Restrictions on Speech in Public Forums
{¶15} “It is well settled that picketing is a ‘pristine and classic’ exercise of First
Amendment freedoms, striking at the core of our nation’s commitment to the principle
that ‘debate on public issues should be uninhibited, robust, and wide-open.’” Seven
Hills v. Aryan Nations, 76 Ohio St. 3d 304, 306 (1996), quoting Edwards v. South
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Carolina, 372 U.S. 229, 235 (1963) and New York Times Co. v. Sullivan, 376 U.S. 254,
270 (1964). “While citizens do not enjoy the absolute right to free speech, neither does
the state enjoy the absolute right to regulate speech. Rather, the degree to which a
state may regulate speech depends upon the place of that speech.” Id., citing Frisby v.
Schultz, 487 U.S. 474, 479 (1988), citing Perry Edn. Assn. v. Perry Local Educators’
Assn., 460 U.S. 37, 44 (1983).
{¶16} The parties agree that the picketing at issue took place on public streets
and public sidewalks in front of or across from the Board members’ residences and
place of private employment. These are “quintessential” public forums. Thus, our First
Amendment analysis begins with a determination as to whether R.C. 4117.11(B)(7) is
“content-based” or “content-neutral.” Id., citing Frisby at 481 and Perry at 45, supra
(“The constitutionality of restrictions on speech in a public forum is measured by
whether the particular restriction is content-based or content-neutral.”).
Content-Neutral Restrictions
{¶17} “Content-neutral speech restrictions are those that are ‘“justified without
reference to the content of the regulated speech.”’” Id., quoting Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989), quoting Clark v. Community for Creative Non-
Violence, 468 U.S. 288, 293 (1984). “A regulation is said to be content-neutral if it
merely incidentally burdens speech by regulating the time, place, or manner of the
speech. * * * ‘A regulation that serves purposes unrelated to the content of expression
is deemed neutral, even if it has an incidental effect on some speakers or messages but
not others.’” Harrison Hills, supra, at ¶21, quoting Ward, supra, at 791 and citing United
States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 817 (2000).
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{¶18} Content-neutral restrictions are subject to “intermediate scrutiny” review.
“In meeting the intermediate scrutiny test for a content-neutral law, the statute must
impose a reasonable restriction that is narrowly tailored to serve a significant (as
opposed to compelling) governmental interest and must leave open alternative channels
for communication of the information.” Id. at ¶18, citing Perry, supra, at 45 and Ward,
supra, at 791, 797-798 (the law need not be the least restrictive means).
Content-Based Restrictions
{¶19} “On the other hand, restrictions that focus on the direct impact of the
speech on its audience are properly analyzed as content-based.” Seven Hills, supra, at
306, citing Boos v. Barry, 485 U.S. 312, 321 (1988).
Government regulation of speech is content based if a law applies
to particular speech because of the topic discussed or the idea or
message expressed. This commonsense meaning of the phrase
“content based” requires a court to consider whether a regulation of
speech “on its face” draws distinctions based on the message a
speaker conveys. Some facial distinctions based on a message are
obvious, defining regulated speech by particular subject matter, and
others are more subtle, defining regulated speech by its function or
purpose. Both are distinctions drawn based on the message a
speaker conveys, and, therefore, are subject to strict scrutiny.
Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163-164 (2015) (citations omitted)
(emphasis added); accord Turner Broadcasting Sys., Inc. v. Fed. Communications
Comm., 512 U.S. 622, 642-643 (1994) and Burson v. Freeman, 504 U.S. 191, 197
(1992) (a law may be content based regardless of whether the law favors or disfavors
the message being regulated).
{¶20} Content-based restrictions are subject to “strict scrutiny” review, as they
necessarily implicate Equal Protection principles. “In meeting the strict scrutiny test for
a content-based law, the government is required to show that the regulation is
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necessary to serve a compelling state interest and is narrowly tailored to achieve that
interest by the least restrictive means.” Harrison Hills, supra, at ¶17, citing Perry, supra,
at 45 and Playboy, supra, at 813; accord Carey v. Brown, 447 U.S. 455, 461-462 (1980)
(citations omitted) (“When government regulation discriminates among speech-related
activities in a public forum, the Equal Protection Clause mandates that the legislation be
finely tailored to serve substantial state interests, and the justifications offered for any
distinctions it draws must be carefully scrutinized.”).
Burden of Proof
{¶21} Content-neutral restrictions are presumed valid; the party challenging the
statute must show it is unconstitutional. See Ward, supra, at 789-790; State v.
Thompkins, 75 Ohio St. 3d 558, 560 (1996). Content-based restrictions are presumed
invalid; the burden is on the government to show that the restriction is constitutional.
Playboy, supra, at 816-817; accord In re Judicial Campaign Complaint, 141 Ohio St. 3d
355, 2014-Ohio-4046, ¶19-20.
Revised Code § 4117.11(B)(7)
{¶22} First, we must emphasize the particular prohibition of the statute. R.C.
4117.11(B)(7) does not directly prohibit picketing. Rather, it prohibits the inducement or
encouragement of picketing:
(B) It is an unfair labor practice for an employee organization, its
agents, or representatives, or public employees to: * * * (7) Induce
or encourage any individual in connection with a labor relations
dispute to picket the residence or any place of private employment
of any public official or representative of the public employer[.]
(Emphasis added.) This distinction was not noted by the parties on appeal, nor is it
evident from certain case law and secondary sources, which often refer to the statute as
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a prohibition on picketing. Nevertheless, in terms of a free speech analysis, it is a
distinction without a difference. The statute must be analyzed in terms of picketing, in
order to determine whether the proscription against inducing or encouraging picketing is
in furtherance of a lawful or unlawful objective. See, e.g., Internatl. Bhd. of Elec.
Workers v. Natl. Labor Relations Bd., 341 U.S. 694 (1951) (“IBEW v. NLRB”) (analyzing
the federal government’s power to prohibit the inducement or encouragement of
secondary picketing under the National Labor Relations Act).
{¶23} Two Ohio appellate districts have analyzed the constitutionality of R.C.
4117.11(B)(7) as it pertains to the regulation of speech:
{¶24} In 1998, the Eighth Appellate District reviewed a challenge to the statute
after union members picketed the residence of a public official. The court held the
statute is an unconstitutional restriction on speech because it “is not content-neutral,
does not serve a compelling state interest, and is not narrowly tailored.” United Elec.,
Radio & Machine Workers of Am. v. State Emp. Relations Bd., 126 Ohio App. 3d 345,
354 (8th Dist.1998), appeal not allowed, 83 Ohio St. 3d 1447 (1998).
{¶25} In 2016, the Seventh Appellate District reviewed a challenge to the statute
after union members picketed a public street outside a school board member’s place of
private employment. In that context, the court held the statute is a constitutional
restriction on speech because it is “‘justified without regard to the content’ of the
regulated conduct and is a reasonable time, place, or manner restriction, most
specifically a place restriction.” Harrison Hills Teachers Assn. v. State Emp. Relations
Bd., 7th Dist. Harrison No. 15 HA 0008, 2016-Ohio-4661, ¶36, quoting Ward, supra, at
791.
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Chicago v. Mosley and Carey v. Brown
{¶26} In United Electrical, the Eighth District reached its decision that R.C.
4117.11(B)(7) is unconstitutional by relying on two United States Supreme Court cases:
Chicago v. Mosley, 408 U.S. 92 (1972) and Carey v. Brown, 447 U.S. 455 (1980).
{¶27} In Chicago v. Mosley, picketing near a school was prohibited except for
peaceful labor picketing of a school involved in a labor dispute. The Chicago ordinance
provided:
‘A person commits disorderly conduct when he knowingly:
‘(i) Pickets or demonstrates on a public way within 150 feet of any
primary or secondary school building while the school is in session
and one-half hour before the school is in session and one-half hour
after the school session has been concluded, provided, that this
subsection does not prohibit the peaceful picketing of any school
involved in a labor dispute. . . .’ Municipal Code, c. 193—1(i).
Mosley, supra, at 92-93.
{¶28} The United States Supreme Court determined this ordinance was content
based because it “describes impermissible picketing not in terms of time, place, and
manner, but in terms of subject matter.” Id. at 99. “Peaceful picketing on the subject of
a school’s labor-management dispute is permitted, but all other peaceful picketing is
prohibited. The operative distinction is the message on a picket sign.” Id. at 95. The
Court explained that, “[o]nce a forum is opened up to assembly or speaking by some
groups, government may not prohibit others from assembling or speaking on the basis
of what they intend to say. Selective exclusions from a public forum may not be based
on content alone, and may not be justified by reference to content alone.” Id. at 96.
The Court further concluded the content-based ordinance was not narrowly tailored to
achieve a compelling governmental interest because “‘[p]eaceful’ nonlabor picketing,
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however the term ‘peaceful’ is defined, is obviously no more disruptive than ‘peaceful’
labor picketing.” Id. at 100.
{¶29} The Court was careful to provide, however, that its holding in Mosley “is
not to say that all picketing must always be allowed. We have continually recognized
that reasonable ‘time, place and manner’ regulations of picketing may be necessary to
further significant governmental interests.” Id. at 98, citing Cox v. New Hampshire, 312
U.S. 569, 575-576 (1941); Poulos v. New Hampshire, 345 U.S. 395, 398 (1953); Cox v.
Louisiana, 379 U.S. 536, 554-555 (1965); and Adderley v. Florida, 385 U.S. 39, 46-48
(1966). “And the State may have a legitimate interest in prohibiting some picketing to
protect public order. But these justifications for selective exclusions from a public forum
must be carefully scrutinized.” Id. at 98-99.
{¶30} In Carey v. Brown, an Illinois statute prohibited picketing of residences or
dwellings unless the residence or dwelling was used as a place of business. The
statute provided:
‘It is unlawful to picket before or about the residence or dwelling of
any person, except when the residence or dwelling is used as a
place of business. However, this Article does not apply to a person
peacefully picketing his own residence or dwelling and does not
prohibit the peaceful picketing of a place of employment involved
in a labor dispute or the place of holding a meeting or assembly on
premises commonly used to discuss subjects of general public
interest.’
Carey, supra, at 457.
{¶31} The U.S. Supreme Court interpreted the “place of employment” exception
as dividing “residences and dwellings” into two categories: (1) “those at which picketing
is lawful (i.e., all places of employment involved in labor disputes)” and (2) “those at
which it is unlawful (i.e., all other residences and dwellings).” Id. at 461, fn. 5. Further,
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the parties and courts involved in the litigation “interpreted the statutory exception for
‘peaceful picketing of a place of employment involved in a labor dispute’ as embodying
the additional requirement that the subject of the picketing be related to the ongoing
labor dispute.” Id. at 460, fn. 4.
{¶32} The Court determined the statute at issue was content based. “On its
face, the statute accords preferential treatment to the expression of views on one
particular subject; information about labor disputes may be freely disseminated but
discussion of all other issues is restricted. The permissibility of residential picketing
under the Illinois statute is thus dependent solely on the nature of the message being
conveyed.” Id. at syllabus.
{¶33} The Court held that the statute in Carey was also unconstitutional under
the Equal Protection Clause of the Fourteenth Amendment. “While the State’s interest
in protecting the well-being, tranquility, and privacy of the home is of the highest order,
the crucial question is whether the statute advances that objective in a manner
consistent with the Equal Protection Clause. Because the statute discriminates among
pickets based on the subject matter of their expression, the answer to that question
must be ‘No.’” Id.
{¶34} Again, the Carey Court warned it was “not to be understood to imply,
however, that residential picketing is beyond the reach of uniform and nondiscriminatory
regulation. For the right to communicate is not limitless. Even peaceful picketing may
be prohibited when it interferes with the operation of vital governmental facilities or
when it is directed toward an illegal purpose.” Id. at 470 (internal citations omitted).
“Moreover, we have often declared that ‘[a] state or municipality may protect individual
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privacy by enacting reasonable time, place, and manner regulations applicable to all
speech irrespective of content.’” Id. (emphasis sic), quoting Erznoznik v. Jacksonville,
422 U.S. 205, 209 (1975). “In sum,” the Court concluded, “‘no mandate in our
Constitution leaves States and governmental units powerless to pass laws to protect the
public from the kind of boisterous and threatening conduct that disturbs the tranquility of
spots selected by the people either for homes, wherein they can escape the hurly-burly
of the outside business and political world, or for public and other buildings that require
peace and quiet to carry out their functions, such as courts, libraries, schools, and
hospitals.’” Id. at 470-471, quoting Gregory v. Chicago, 394 U.S. 111, 118 (1969)
(Black, J., concurring).
R.C. 4117.11(B)(7) is Content Based
{¶35} Relying on Mosley and Carey, the Eighth District declared in United
Electrical that R.C. 4117.11(B)(7) is unconstitutional because the Ohio statute regulates
picketing in a public forum solely on the basis of its content. The court held, “[i]n the
case at bar, the state of Ohio’s purpose is to regulate a very specific type of speech:
residential labor picketing. The statute does not neutrally regulate all residential
picketing; rather, the statute’s proscription against residential picketing applies only to ‘a
labor relations dispute.’” United Elec., supra, at 351-352.
{¶36} Here, the Association urges this court to reverse the lower court’s decision
based on the line of reasoning found in Mosley, Carey, and United Electrical. The
Association argues that, in addition to the “place” regulation found in R.C.
4117.11(B)(7), the phrase, “in connection with a labor dispute,” also regulates content.
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{¶37} The Board and SERB respond that R.C. 4117.11(B)(7) is distinguishable
from the laws at issue in Mosley and Carey because the statute is merely a reasonable
“time, place and manner” regulation irrespective of content.
{¶38} In Mosley, the ordinance prohibited all picketing near a school except for
peaceful picketing of a school involved in a labor dispute. In Carey, the statute
prohibited residential picketing except for peaceful picketing of a place of employment
involved in a labor dispute. Whether an individual violated these laws by picketing in a
particular place depended on the content of the message on the individual’s picket sign:
if related to a labor dispute, it was lawful; any other message was unlawful.
{¶39} R.C. 4117.11(B)(7) provides that an employee organization (e.g., the
Association) commits an unfair labor practice when it induces or encourages any
individual in connection with a labor relations dispute (e.g., the Association members) to
picket in two locations—the residence or place of private employment of a public
employer’s representatives (e.g., the Board members). It is without question, therefore,
that the statute does regulate the “place” of where picketing may be induced or
encouraged. However, it is only a violation of the statute to induce or encourage
picketing at those locations when said picketing is “in connection with a labor relations
dispute.” Whereas the laws in Mosley and Carey favored labor picketing, R.C.
4117.11(B)(7) disfavors it. In other words, if related to a labor relations dispute,
inducing or encouraging the picketing is unlawful under the statute; if not related to a
labor relations dispute, inducing or encouraging the picketing is lawful under the statute.
Thus, similar to Mosley and Carey, whether an individual or organization violates the
statute depends on the content of the message on the picket sign.
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{¶40} Accordingly, we agree with the Eighth District’s holding in United
Electrical. We disagree, therefore, with the Seventh District’s subsequent holding in
Harrison Hills, that the statute is “‘justified without regard to the content’ of the regulated
conduct and is a reasonable time, place, or manner restriction, most specifically a place
restriction.” Harrison Hills, supra, at ¶36, quoting Ward, supra, at 791. The limitation is
not merely upon the place at which the Association may induce or encourage its
members to picket, it is also based upon content.
Secondary Picketing
{¶41} In Harrison Hills, the Seventh District further distinguished picketing a
place of private employment from picketing a private residence by concluding that the
former “is more akin to the secondary picketing labor cases than the Mosley and Carey
cases[.]” Id. at ¶34. As explained below, we disagree with the Seventh District’s
analysis of secondary picketing and, therefore, with its conclusion that strict scrutiny
does not apply to the whole of R.C. 4117.11(B)(7).
{¶42} “The gravamen of a secondary boycott is that its sanctions bear, not upon
the employer who alone is a party to the dispute, but upon some third party who has no
concern in it. Its aim is to compel him to stop business with the employer in the hope
that this will induce the employer to give in to his employee’s demands.” Internatl. Bhd.
of Elec. Workers, Local 501 v. Natl. Labor Relations Bd., 181 F.2d 34, 37 (2d Cir.1950),
aff’d, 341 U.S. 694 (1951).
{¶43} “The typical paradigm in the industrial context features a labor
organization with a dispute against A, but instead of merely pressuring A directly with a
strike, picket, handbill or other action, the labor organization pressures A indirectly, by
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making A’s clients, suppliers or other persons with whom A conducts business the
target of such activity. The desired effect is to pressure A to capitulate to union
demands by virtue of the threat of those other persons terminating their relationships
with A in order to be rid of the unwanted union pressure.” Bock, Secondary Boycotts:
Understanding NLRB Interpretation of Section 8(b)(4)(B) of the Natl. Labor Relations
Act, 7 U. Pa. J. Lab. & Emp. L. 905, 908 (2005) (footnotes omitted).
Lawful vs. Unlawful Secondary Picketing
{¶44} In Harrison Hills, the Seventh District essentially reached a conclusion that
all secondary picketing in the context of a labor dispute may be proscribed by the state
because it is contrary to state policy and was enjoined under the common law. Harrison
Hills, supra, at ¶35. However, this conclusion fails to consider the nuances of the
opinions on this issue from both the Ohio and United States Supreme Courts. Neither
the prohibitions on secondary picketing that have been upheld nor the relevant case law
proscribe all secondary activity. Rather, there are distinctions between lawful and
unlawful secondary activity based on the picketer’s conduct and objective.
{¶45} For instance, the Seventh District relied on the Ohio Supreme Court case
of W.E. Anderson Sons for its statement that Ohio common law enjoined the secondary
picketing of neutrals. However, the definition of a prohibited “secondary boycott” in
W.E. Anderson Sons did not encompass all secondary activity. Rather, it was limited as
follows:
‘A secondary boycott is a combination not merely to refrain from
dealing with a person, or to advise, or by peaceful means
persuade, his customers to refrain from dealing with him, but to
exercise coercive persuasion upon such customers, actually
causing them to withhold or withdraw their patronage from his
through fear of loss or damage to themselves.’
16
W.E. Anderson Sons Co. v. Local Union No. 311, Internatl. Bhd. of Teamsters, 156
Ohio St. 541, 563 (1952) (emphasis added), quoting 24 Ohio Jurisprudence, 676,
Section 61.
{¶46} Indeed, the syllabus of the Court provides that, “Where no unlawful
purpose or object is involved, workers may by means of picketing or bannering
announce their grievances to the public and thus persuade or seek to persuade
prospective employees as well as prospective customers of the person against whom
the picketing or bannering is directed from dealing with such person.” Id. at paragraph
one of the syllabus. “Picketing or bannering as a means of exercising the right of free
speech will be afforded constitutional protection so long as it is lawfully conducted, but
the right of free speech is predicated on the lawful exercise of such right, and if, through
conspiracy or unlawful conduct, the result of its exercise by such means unlawfully
injures another in his property rights, the guaranty ceases and the exercise of the
claimed right by such means may be enjoined or prohibited.” Id. at paragraph four of
the syllabus.
{¶47} The Seventh District also relied heavily on Carpenters & Joiners Union of
Am., Local No. 213 v. Ritter’s Café, 315 U.S. 722 (1942). In Ritter’s Café, a Texas state
court enjoined a union that picketed outside a restaurant. The owner of the restaurant
had permitted the hiring of non-union workers to construct an unrelated building at
another location. The United States Supreme Court upheld the state court’s decision.
Again, while this case recognized the states’ right to regulate some forms of secondary
activity, the specific prohibition that was upheld was characterized by the Supreme
Court as “the exertion of concerted pressure directed at the business, wholly outside the
17
economic context of the real dispute, of a person whose relation to the dispute arises
from his business dealings with one of the disputants.” Id. at 726 (emphasis added).
{¶48} Also contrary to the Seventh District’s broad statements regarding
secondary activity, the Ritter’s Café Court expounded that “[t]he constitutional right to
communicate peaceably to the public the facts of a legitimate dispute is not lost merely
because a labor dispute is involved, or because the communication takes the form of
picketing, even when the communication does not concern a dispute between an
employer and those directly employed by him.” Id. at 725, citing Thornhill v. Alabama,
310 U.S. 88 (1940) and Am. Fedn. of Labor v. Swing, 312 U.S. 321 (1941).
{¶49} We must further note that the Ritter’s Café opinion is of limited
precedential value, as it was decided prior to the enactment of the National Labor
Relations Act (“NLRA”) and the United States Supreme Court’s delineation of prohibited
and permitted secondary activity. The current version of this federal statute, which
prohibits certain secondary activity, was established in 1959 pursuant to the Landrum-
Griffin amendments to the NLRA. See Natl. Labor Relations Bd. v. Retail Store Emps.
Union, Local 1001, 447 U.S. 607, 615, fn. 10 (1980) (“Retail Store”). Specifically,
Section 8(b)(4)(ii)(B) of the NLRA (codified at 29 U.S.C. 158(b)(4)(ii)(B)) makes it an
“unfair labor practice for a labor organization or its agents * * * to threaten, coerce, or
restrain” a person not party to a labor dispute “where * * * an object thereof is * * *
forcing or requiring any person to cease using, selling, handling, transporting, or
otherwise dealing in the products of any other producer, processor, or manufacturer, or
to cease doing business with any other person * * *.”
18
{¶50} In Retail Store, the United States Supreme Court recognized that section
8(b)(4)(ii)(B) of the NLRA “does not prohibit all peaceful picketing at secondary sites.”
Id. at 611 (emphasis added), citing Natl. Labor Relations Bd. v. Fruit & Vegetable
Packers & Warehousemen, Local 760, 377 U.S. 58 (1964) (“Tree Fruits”). Rather, “the
statute directed to an ‘isolated evil,’” which is the “use of secondary picketing ‘to
persuade the customers of the secondary employer to cease trading with him in order to
force him to cease dealing with, or to put pressure upon, the primary employer.’” Id. at
612, quoting Tree Fruits, supra, at 63.
{¶51} After Retail Store, the United States Supreme Court announced: “We have
consistently rejected the claim that secondary picketing by labor unions in violation of §
8(b)(4) is protected activity under the First Amendment. It would seem even clearer that
conduct designed not to communicate but to coerce merits still less consideration under
the First Amendment.” Internatl. Longshoremen’s Assn., AFL–CIO v. Allied Internatl.,
Inc., 456 U.S. 212, 226 (1982) (emphasis added), citing Retail Store at 616 and Tree
Fruits at 63, supra, and Am. Radio Assn., AFL-CIO v. Mobile S.S. Assn., Inc., 419 U.S.
215, 229-231 (1974).
{¶52} Section 8(b)(4)(ii)(B) of the NLRA is expressly limited to “threats,”
“coercion,” or “restraint.” The case law cited above is similarly limited to unlawful
behavior or unlawful objectives. The Supreme Court of the United States has further
“recognized the constitutional right of states to proscribe picketing in furtherance of
comparably unlawful objectives” as described in that section. IBEW v. NLRB, supra, at
705 (emphasis added). The Court has cautioned, however, that even this language is
“‘nonspecific, indeed vague,’ and should be interpreted with ‘caution’ and not given a
19
‘broad sweep.’ Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 578 (1988), quoting Natl. Labor Relations Bd. v. Drivers,
Chauffeurs, Helpers, Local Union No. 639, 362 U.S. 274, 290 (1960).
{¶53} R.C. 4117.11(B)(7) does not contain any such limiting language. Again,
R.C. 4117.11(B)(7)’s restriction on picketing broadly states that “[i]t is an unfair labor
practice for an employee organization, its agents, or representatives, or public
employees to: * * * [i]nduce or encourage any individual in connection with a labor
relations dispute to picket the residence or any place of private employment of any
public official or representative of the public employer[.]”
{¶54} Nevertheless, in Harrison Hills, the Seventh District attempted to liken the
NLRA prohibition with that found in R.C. 4117.11(B)(7): “This picketing of the private
employer [under (B)(7)] seeks to draw a neutral into the collective bargaining strife
against his will and influence or coerce that neutral into pressuring its employee in order
to avoid the negative effects of a picket line.” Harrison Hills, supra, at ¶34.
{¶55} Because R.C. 4117.11(B)(7) does not merely prohibit the act of
influencing or coercing a neutral against his or her will, we reject this comparison and
are unable to rely on these cases to conclude that the entirety of (B)(7) should not be
subjected to strict scrutiny.
The Association Did Not Induce or Encourage Secondary Picketing
{¶56} There is also a critical factual distinction not addressed in Harrison Hills,
namely that the picketing was of a Board member conducted at the Board member’s
place of employment, not of the Board member’s private employer. Unlike the
prohibited secondary picketing or boycott activities discussed above, the picketing here
20
was not directed to a third-party employer in connection with the business of the Board,
with the underlying labor dispute, or with that employer’s business or products. The
third-party employer and its business were not targeted in any way. The Board member
simply worked there, the Association members held signs that read “Board Unfair to
Workers,” and the picketing was done on the public street or sidewalk.
{¶57} We conclude the activity that occurred here was not secondary picketing,
at all; nor was it “akin to” secondary picketing, as found by the Seventh District. Further,
because the restriction in (B)(7) is content based and encompasses the encouragement
or incitement of lawful secondary picketing, the entire restriction is presumed invalid and
subject to strict scrutiny.
Strict Scrutiny Review
{¶58} To overcome the presumption of unconstitutionality, the government must
demonstrate that the regulation is (1) necessary to serve a compelling state interest and
(2) narrowly tailored to achieve that interest by the least restrictive means. Perry at 45
and United Elec. at 352, supra.
Compelling State Interest
{¶59} SERB and the Board contend the governmental interests the statute
seeks to serve are (1) maintaining the residential privacy rights of public employer
representatives; (2) encouraging private citizens to serve as public officials; and (3)
preserving labor peace. The state is primarily concerned that, although government
employees have been granted the right to unionize and strike, public service will be
deterred if the state is not careful to protect the private lives of its public servants.
21
{¶60} We recognize, as higher courts have before us, that protecting individual
privacy is indeed a “significant” governmental interest. The United States Supreme
Court has “often declared that ‘[a] state or municipality may protect individual privacy by
enacting reasonable time, place, and manner regulations[.]’” Carey, supra, at 470,
quoting Erznoznik, supra, at 209. The governmental interest in protecting the “‘“well-
being, tranquility, and privacy of the home”’” has also been recognized as “significant”
by the Supreme Court of Ohio. Seven Hills, supra, at 309, quoting Frisby, supra, at
484, quoting Carey, supra, at 471.
{¶61} Nevertheless, the Supreme Court of Ohio has determined that protecting
residential privacy is not a “compelling” governmental interest, recognizing that the
United States Supreme Court has “expressly preserved the right of protesters to march
through a residential neighborhood or go door-to-door within the residential
neighborhood regardless of the residents’ rights to privacy and well-being.” Id., citing
Frisby, supra, at 483-484; accord Kirkeby v. Furness, 92 F.3d 655, 659 (9th Cir.1996)
(noting the U.S. Supreme Court has never held this to be a compelling interest).
{¶62} We also agree with the Eighth Appellate District, that “the state’s broad
declarations about the government’s interest in preserving labor peace are too vague to
qualify as compelling interests.” United Elec., supra, at 353 (citation omitted). “The law
does not require peace at any price. Nor is peace to be defined as the absence of
dispute.” Id.
{¶63} In fact, the Supreme Court of the United States recognized long ago that
“a function of free speech under our system of government is to invite dispute.”
Terminiello v. Chicago, 337 U.S. 1, 4 (1949). According to the Court:
22
It may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they
are, or even stirs people to anger. Speech is often provocative and
challenging. It may strike at prejudices and preconceptions and
have profound unsettling effects as it presses for acceptance of an
idea. That is why freedom of speech, though not absolute, is
nevertheless protected against censorship or punishment, unless
shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience,
annoyance, or unrest.
Id. (internal citations omitted).
{¶64} Further, the Court has held that “[p]redictions about imminent disruption
from picketing involve judgments appropriately made on an individualized basis, not by
means of broad classifications, especially those based on subject matter.” Mosley,
supra, at 100-101. “‘In our system, undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of expression.’ Some
labor picketing is peaceful, some disorderly; the same is true of picketing on other
themes.” Id. at 101, quoting Tinker v. Des Moines Indep. Community School Dist., 393
U.S. 503, 508 (1969).
{¶65} The people of Ohio, through the state constitution, have expressed their
desire to assure the equal protection and benefit of the law, to protect free speech, and
to allow for legislation concerning employees’ welfare and rights. The Ohio
Constitution is much more detailed in its protection of freedom of speech than the First
Amendment to the United States Constitution, stating as follows: “Every citizen may
freely speak, write, and publish his sentiments on all subjects, being responsible for the
abuse of the right; and no law shall be passed to restrain or abridge the liberty of
speech, or of the press. * * *” Ohio Constitution, Article I, Section 11. Additionally, the
Ohio Constitution addresses the welfare and rights of employees, providing that “[l]aws
23
may be passed fixing and regulating the hours of labor, establishing a minimum wage,
and providing for the comfort, health, safety and general welfare of all employees; and
no other provision of the constitution shall impair or limit this power.” Ohio
Constitution, Article II, Section 34.
{¶66} In light of the above constitutional protections, we conclude that SERB
has failed to meet its burden to establish that R.C. 4117.11(B)(7) is necessary to serve
a compelling state interest.
Narrowly Tailored
{¶67} Even if SERB had established such an interest, R.C. 4117.11(B)(7) is not
narrowly tailored to achieve that interest by the least restrictive means.
{¶68} First, “[t]he state’s interest in labor peace is similarly covered by other
sections of Ohio’s collective bargaining law, which is to be liberally construed to
promote orderly and constructive relationships between public employees and their
employers.” United Elec., supra, at 354, citing R.C. 4117.22. And “[w]e already have
residential ordinances and a criminal code to preserve law and order and residential
privacy. Moreover, these regulations, which focus on a specific abuse, deal
evenhandedly with picketing in general, regardless of subject matter.” Id. at 353, citing
Carey, supra, at 462.
{¶69} Second, in contrast to the prohibited secondary picketing discussed
above, R.C. 4117.11(B)(7) contains no specificity regarding the picketer’s conduct (e.g.,
threats, coercion, or restraint) or the picketer’s objective (e.g., to force or require
cessation of business activity), nor does it draw any distinction regarding the picketer’s
target (e.g., the private employer’s business or products).
24
{¶70} As a result, (B)(7) prohibits the activity involved in this case, which did not
involve threats, coercion, or restraint, was not intended to force or require cessation of
the private employer’s business activity, and was directed at the individual Board
member rather than at the private employer, its business, or even its products. In
essence, (B)(7) also prohibits lawful secondary picketing and, as here, conduct that
cannot even be fairly classified as secondary picketing.
{¶71} Further, there were readily available and significantly less restrictive
alternatives to reach only activity that the Supreme Court of the United States has
previously found to constitute prohibited secondary picketing. For example, in Boos v.
Barry, the Court found that a statute prohibiting the display of signs critical of a foreign
government within 500 feet of an embassy was not narrowly tailored in light of an
analogous statute that prohibited only intimidation, coercion, threats, harassment, and
obstruction. Boos, supra, at 313, 324-325. Here, the General Assembly could have
implemented restrictions similar to those set forth in the NLRA and as interpreted by the
Court.
{¶72} As Justice Black noted in his concurrence in the Tree Fruits case,
legislation restricting the union’s ability to disseminate information about a labor dispute
via secondary, non-coercive picketing in a public forum on a public street or sidewalk
results in “neither a case in which picketing is banned because the picketers are asking
others to do something unlawful nor a case in which all picketing is, for reasons of
public order, banned. Instead, we have a case in which picketing, otherwise lawful, is
banned only when the picketers express particular views. The result is an abridgment
of the freedom of these picketers to tell a part of the public their side of a labor
25
controversy, a subject the free discussion of which is protected by the First
Amendment.” Tree Fruits, supra, at 79 (Black, J., concurring).
Conclusion
{¶73} Given the rights secured by the federal and state Constitutions, and
without the underpinning of a compelling state interest and a narrowly tailored statute,
R.C. 4117.11(B)(7)’s restrictions on inducing and encouraging picketing cannot
withstand strict scrutiny.
{¶74} The Association’s sole assignment of error is well taken. It was error for
the lower court to uphold SERB’s decision that the Association committed an unfair
labor practice when it induced or encouraged the Association members to picket the
residences and place of private employment of the Board members.
{¶75} The judgment of the Portage County Court of Common Pleas is reversed.
This matter is remanded to the trial court for further proceedings consistent with this
opinion.
THOMAS R. WRIGHT, J., concurs,
MARY JANE TRAPP, J., concurs with a Concurring Opinion.
____________________
MARY JANE TRAPP, J., concurs with a Concurring Opinion.
{¶76} I concur with the analysis and judgment of the court in determining that
R.C. 4117.11(B)(7)’s picketing restrictions do not serve a compelling state interest and
26
are not narrowly tailored to survive a constitutional challenge. I write separately to
expand upon the discussion of the important constitutional issues this case presents.
Identity of the Speaker
{¶77} It is critical to add to this court’s analysis that a more recent line of First
Amendment cases supports a finding that R.C. 4117.11(B)(7), in addition to being a
content-based restriction, constitutes a constitutionally infirm restriction based on the
identity of the speaker.
{¶78} In Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd.,
7th Dist. Mahoning No. 11 MA 52, 2012-Ohio-3000 (“MEADD I”), the Seventh District
found that the singling out of public employee organizations and public employees in
R.C. 4117.11(B)(8) constitutes a restriction based on the identity of the speaker and
applied strict scrutiny. See id. at ¶21.
{¶79} It supported this determination by citing the Supreme Court of the United
States’ more recent First Amendment jurisprudence in other contexts. See, e.g., Sorrell
v. IMS Health Inc., 564 U.S. 552, 565 (2011), quoting R.A.V. v. St. Paul, 505 U.S. 377,
391 (1992) (holding that law targeting certain speakers and their messages for
disfavored treatment was “‘actual viewpoint discrimination’”); Turner Broadcasting Sys.,
Inc. v. Fed. Communications Comm., 512 U.S. 622, 658 (1994) (reaffirming its holding
in Buckley v. Valeo, 424 U.S. 1 (1976), that “speaker-based laws demand strict scrutiny
when they reflect the Government’s preference for the substance of what the favored
speakers have to say (or aversion to what the disfavored speakers have to say)”);
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429-430 (1993) (holding that a
law’s burden on commercial handbills that does not burden an ordinary newspaper is a
27
type of content-based law subject to strict scrutiny); and most notably, Citizens United v.
Fed. Election Comm., 558 U.S. 310, 340 (2010) (holding that “restrictions distinguishing
among different speakers, allowing speech by some but not others” are prohibited).
{¶80} As Justice Kennedy observed in writing for the court in Citizens United:
{¶81} “Premised on mistrust of governmental power, the First Amendment
stands against attempts to disfavor certain subjects or viewpoints. Prohibited, too, are
restrictions distinguishing among different speakers, allowing speech by some but not
others. As instruments to censor, these categories are interrelated: Speech restrictions
based on the identity of the speaker are all too often simply a means to control content.
{¶82} “Quite apart from the purpose or effect of regulating content, moreover,
the Government may commit a constitutional wrong when by law it identifies certain
preferred speakers. By taking the right to speak from some and giving it to others, the
Government deprives the disadvantaged person or class of the right to use speech to
strive to establish worth, standing, and respect for the speaker’s voice. The
Government may not by these means deprive the public of the right and privilege to
determine for itself what speech and speakers are worthy of consideration. The First
Amendment protects speech and speaker, and the ideas that flow from each.”
(Citations omitted.) Id. at 340-341.
{¶83} MEADD I involved the constitutionality of R.C. 4117.11(B)(8), which
imposes notice requirements when an employee organization (including its agents or
representatives) or public employees “[e]ngage in any picketing, striking, or other
concerted refusal to work * * *.” However, the language regarding the identity of the
speaker is set forth in subsection (B), which applies equally to both (B)(7) and (B)(8).
28
{¶84} The Supreme Court of Ohio affirmed the Seventh District’s judgment in
MEADD I on non-constitutional grounds, finding that R.C. 4117.11(B)(8) did not apply to
“picketing that is merely information in nature” as opposed to “picketing related to a
work stoppage, strike, or refusal to work” due to the modifying language “or other
concerted refusal to work.” Mahoning Edn. Assn. of Dev. Disabilities v. State Emp.
Relations Bd., 137 Ohio St. 3d 257, 2013-Ohio-4654, ¶4, 15 (“MEADD II”). However, the
picketing restriction in R.C. 4117.11(B)(7) does not contain this language, so it is not
susceptible to the same limiting construction. See Harrison Hills Teachers Assn. v.
State Emp. Relations Bd., 7th Dist. Harrison No. 15 HA 0008, 2016-Ohio-4661, ¶11, fn.
3 (noting that the restriction in R.C. 4117.11(B)(7) encompasses informational
picketing).
{¶85} As the Seventh District noted in MEADD I, the statute “singles out a
certain type of speaker: a public employee organization and the public employees
themselves. That is, anyone can picket * * * except public employees and their union * *
*. Thus, * * * it creates a disfavored speaker by discriminating against public employees
and their unions * * *.” Id. at ¶21.
{¶86} Accordingly, I would find that R.C. 4117.11(B)(7) also constitutes an
unconstitutional restriction based on the identity of the speaker.
Governmental Interests
{¶87} I also wish to elaborate on the discussion of the governmental interests
that R.C. 4117.11(B)(7) purportedly serves.
{¶88} As this court’s opinion notes, SERB and the Board posit that R.C.
4117.11(B)(7) serves three state interests: (1) maintaining the residential privacy rights
29
of the public employer representative; (2) encouraging public service; and (3) preserving
labor peace. SERB and the Board must demonstrate, as opposed to merely assert, the
compelling nature of these interests. United Elec., Radio & Machine Workers of Am. v.
State Emp. Relations Bd., 126 Ohio App. 3d 345, 352 (8th Dist.1998) (“United Elec.”).
{¶89} It should be further noted that the first interest expressly relates to R.C.
4117.11(B)(7)’s restriction on residential picketing, so only the second and third interest
could potentially apply to its restriction on picketing a place of private employment.
{¶90} With respect to the second asserted interest of encouraging public
service, SERB has cited no legal authority recognizing such an interest as compelling.
In fact, the Eighth District determined in United Elec. that such an interest did not qualify
as compelling. See id. at 353 (“There is no evidence that encouraging citizens to serve
as officials of public employers is a ‘compelling’ state interest, although it may be a
desirable goal”).
{¶91} I would find this interest to be, at most, significant but not compelling, nor
is the statute’s restriction narrowly tailored, inasmuch as the interest is already
addressed by existing public peace and safety statutes and ordinances.
{¶92} With respect to the third interest of preserving labor peace, I disagree with
SERB’s position that a prohibition of secondary picketing by labor unions, generally, and
at a board member’s place of private employment, specifically, serves a compelling
state interest in preserving the ability of “neutral employers, employees and consumers
to remain free from coerced participation in industrial strife.”
{¶93} In support of this proposition, SERB quotes the Supreme Court of the
United States’ decision N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982).
30
The court’s 1982 decision in Claiborne distinguished commercial speech and political
speech. See id. at 913. According to the court, picketing may be regulated or even
prohibited because states have broad power to regulate economic activity, but there is
not a “comparable right to prohibit peaceful political activity.” Id.
{¶94} The court’s more modern First Amendment cases, particularly Citizens
United and Sorrell, have moved far beyond Claiborne’s distinctions. See United Elec. at
352, fn. 2 (noting that many labor picketing cases “were decided prior to modern
Supreme Court jurisprudence which applies the content-based/content-neutral
analysis”).
{¶95} For instance, the court’s analysis regarding the identity of the speaker
articulated in Citizens United led to a declaration that corporate independent campaign
expenditures are a form of protected political speech meriting the highest form of
scrutiny. See id. at 365. The court forcefully declared that the government may not
suppress political speech on the basis of the identity of the speaker, be it a corporation,
a labor union, or other association. Id. The political speech in that case was
expenditures for electioneering communications. Id. at 337.
{¶96} The court further noted that it has upheld some speech restrictions that
disadvantage certain persons based on an interest in allowing governmental entities to
perform “certain governmental functions that cannot operate without some restrictions
on particular kinds of speech.” Id. at 341. However, one would be hard-pressed to
identify a governmental function (or for that matter, a private business’ operations) that
would be disabled by union members engaging in informational picketing at either a
board member’s place of employment about the board member’s action taken as a
31
board member, as opposed to informational picketing by a non-union advocacy group
about the same subject at that same board member’s place of employment.
{¶97} In Sorrell, addressing commercial speech, the court held that Vermont’s
statute restricting the sale, disclosure, and use of pharmacy records for marketing
purposes imposed a specific, content and speaker-based restriction on free speech
meriting heightened judicial scrutiny. Id. at 557.
{¶98} In regard to non-labor union picketing, the court has determined that
picketing at a soldier’s funeral with signs displaying negative, “hyperbolic rhetoric” about
the Catholic Church, sexual orientation, 9/11, and dead soldiers was entitled to “special
protection” under the First Amendment because it was speech at a public place on a
matter of public concern, as opposed to matters of purely private significance, subject
only to reasonable time, place, or manner restrictions. Snyder v. Phelps, 562 U.S. 443,
458 (2011).
{¶99} As this court’s opinion correctly notes, the prohibition in section
8(b)(4)(ii)(B) of the NLRA is expressly limited to “threats,” “coercion,” or “restraint,” and
the Supreme Court of the United States has cautioned that this language is
“nonspecific, indeed vague,” and should be interpreted with “caution” and not given a
“broad sweep.” Natl. Labor Relations Bd. v. Drivers, Chauffeurs, Helpers, Local Union
No. 639, 362 U.S. 274, 290 (1960).
{¶100} Despite the court’s limiting constructions, however, commentators have
questioned the constitutionality of section 8(b)(4)(ii)(B) in light of the court’s modern
First Amendment jurisprudence. See generally Joseph L. Guza, Comment, A Cure for
Laryngitis: A First Amendment Challenge to the NLRA’s Ban on Secondary Picketing,
32
59 Buff.L.Rev. 1267 (Dec.2011); Zoran Tasic, Note, The Speaker the Court Forgot: Re-
evaluating NLRA Section 8(B)(4)(B)’s Secondary Boycott Restrictions in Light of
Citizens United and Sorrell, 90 Wash.U.L.Rev. 237 (2012).
Ohio Protections
{¶101} Finally, I believe the interests that R.C. 4117.11(B)(7) purportedly serves
must also be considered in relation to the protections under Ohio law.
{¶102} As this court’s opinion aptly notes, Section 11, Article I, of our state
Constitution is much more detailed in its protections than the First Amendment to the
Federal Constitution, stating, in relevant part, as follows:
{¶103} “Every citizen may freely speak, write, and publish his sentiments on all
subjects, being responsible for the abuse of the right; and no law shall be passed to
restrain or abridge the liberty of speech, or of the press.”
{¶104} Notably, this section specifically protects the right to “publish.” Id.
“Publication” is defined as the “act or process of publishing; a published work.”
Merriam-Webster, https://www.merriam-webster.com/dictionary/publication (accessed
Dec. 17, 2020). “Publish” is defined as “to make generally known; to make public
announcement of; to place before the public: disseminate.” Id., https://www.merriam-
webster.com/dictionary/publish (accessed Dec. 17, 2020). Picketing is one method of
publication of one’s sentiments.
{¶105} It is important to recognize that the word “publish” was not included in the
state’s original Constitution of 1802. See Ohio Constitution of 1802, Article VIII, Section
6. It was added in 1851, as a part of the overarching sentiment from the constitutional
convention of 1850 to create a more democratic system of government. The new
33
Constitution also gave Ohio voters the right to elect the governor, other high-ranking
state officials, and judges. See Ohio Constitution, Article III, Section 1, and Article IV,
Section 6. The voters had to approve all constitutional amendments in the future and
received the option to call a new constitutional convention every twenty years. See
Ohio Constitution, Article XVI, Sections 1 and 3.
{¶106} As this court’s opinion further notes, the Ohio Constitution also addresses
the welfare and rights of employees. Specifically, Article II was added after the Ohio
Constitutional Convention of 1912, which was called in large part as a result of the
Progressive movement seeking social and political reform, especially in the areas of
women’s rights and organized labor. As this court has previously explained:
{¶107} “‘Among those provisions [dealing with the welfare and rights of
employees drafted and recommended for adoption at the Ohio Constitutional
Convention of 1912] was Section 33, Article II, dealing with mechanics’ liens; Section
35, Article II, authorizing a workers’ compensation system; Section 37, Article II,
providing for an eight-hour day for employees engaged in public works; and Section 41,
Article II, setting forth restraints upon the exploitation of prison labor for competitive
advantage.
{¶108} “‘Probably the most comprehensive of the provisions was Section 34,
Article II, which manifested the broad purpose of proclaiming and securing to the
General Assembly the power to enact legislation establishing employee rights and
protections.’” (Emphasis sic.) Am. Fedn. of State, Cty. & Mun. Emps. Local # 74 v.
Warren, 177 Ohio App. 3d 530, 2008-Ohio-3905, ¶47-48 (11th Dist.), quoting Kettering
v. State Emp. Relations Bd., 26 Ohio St. 3d 50, 57 (1986) (Douglas, J., concurring).
34
{¶109} As recognized by the Seventh District in Harrison Hills, the NLRA does not
apply to public employees. Id. at ¶32. Thus, various states, including Ohio, have
enacted collective bargaining laws to govern labor relations disputes between public
employees and public employers. Id.
{¶110} R.C. 4117.11(B) was enacted in 1984 as part of the Public Employees
Collective Bargaining Act (the “Act”), which is codified in R.C. Chapter 4117. See
Kettering at 50. According to the Supreme Court of Ohio, “[t]he Act was designed to
‘minimize the possibility of public-sector labor disputes,’ to bring ‘stability and clarity to
an area where there had been none,’ and to ‘facilitate the determination of the rights
and obligations of government employees and employers, and give them more time to
provide safety, education, sanitation, and other important services.’” Id. at 55, quoting
State ex rel. Dayton Fraternal Order of Police Lodge No. 44 v. State Emp. Relations
Bd., 22 Ohio St. 3d 1, 5 (1986). In addition, “the Act assures that both public employers
and employees will be accorded many of the same rights and be governed by many of
the same responsibilities as employees and employers in the non-public sector.”
Dayton Fraternal Order at 5.
{¶111} The court characterized the Act as the General Assembly’s exercise of its
“police power to promote the general safety and welfare.” Id. And according to the
General Assembly, the Act is to be liberally construed to promote “orderly and
constructive relationships between all public employees and their employers.” R.C.
4117.22.
{¶112} Accordingly, I would also conclude that SERB has failed to meet its
burden under Ohio law to establish that R.C. 4117.11(B)(7) is necessary to serve a
35
compelling state interest and is narrowly tailored to achieve that interest by the least
restrictive means.
36