NOTICE REQUIREMENTS FOR INFORMATIONAL PICKETING UNDER 4117

By

Henry A. Arnett

Livorno and Arnett Co., LPA

1335 Dublin Road, Suite 108-B

Columbus, Ohio 43215

Telephone: 614-224-7771

counsel@oapff.org

Ohio Revised Code §4117.11(B) provides that it is an unfair labor practice for a public employee organization, its agents, representatives, or public employees to do the following:

(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 ten days prior to the action. The notice shall state the date and time that the action will commence and, once the notice is given, the parties may extend it by the written agreement of both.

Does the 10 day notice provision set forth in this section apply to informational picketing and, if it does, is such a restriction in violation of the First Amendment’s free-speech guarantees. These questions were presented in the case of Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd., 2013-Ohio-4654.

In that case, a labor organization, the Mahoning Education Association of Developmental Disabilities, and the public employer, the Mahoning County Board of Developmental Disabilities, were engaged in negotiations for a successor collective-bargaining agreement. Before a meeting held by the Board, Union representatives picketed outside the building where the Board was meeting, carrying picket signs asking the Board to settle the contract and to give a fair deal to the Union. No written notice of the intent to picket was provided to the Board and to the State Employment Relations Board.

The Board filed an unfair labor practice charge against the Union, alleging that it had violated the ten-day notice requirement of §4117.11(B) (8). SERB ruled in favor of the Board and found that the Union had committed an unfair labor practice by failing to give the required 10 day notice before picketing.

The Union appealed to Common Pleas Court, arguing that the ten-day notice requirement, as it applied to picketing, was a content-based restriction on speech and a prior restraint of its right to picket and was, therefore, unconstitutional. This argument was rejected by the Common Pleas Court, which held that the ten-day notice requirement was constitutional. However, the Court of Appeals reversed this judgment and declared the notice requirement to be unconstitutional. The Board and SERB appealed to the Ohio Supreme Court.

The Ohio Supreme Court ruled against the Board and SERB, and in favor of the Union, but not on the constitutional grounds which had been argued in the lower courts. Instead, it examined the statute and determined that was never intended to apply to picketing that is merely informational in nature in the first place. According to the Supreme Court, the intent of the Ohio General Assembly in enacting §4117.11(B) (8) was to address a refusal to work. In other words, the ten-day notice requirement would apply to picketing only if it was part of or connected to a related work stoppage. Informational picketing was not addressed by the statute. Therefore, the ten-day notice provision of that statute did not apply to the Union’s informational picketing before the Board meeting. Having decided that the statute did not apply to the informational picketing, the court upheld the reversal of SERB’s ruling that the Union had committed an unfair labor practice, but did not address the constitutional issue as to whether imposing a restriction on informational picketing, such as requiring 10 days notice, violated the First Amendment.