Does a union commit an unfair labor practice by picketing the private employer of a board of education member? The answer is, “yes” according to an Ohio appellate court in the case of Harrison Hills Teachers Assn. v. State Emp. Relations Bd., 2016-Ohio-4661.
The dispute began when “union members picketed on a public street outside of a school board member’s private employer.” Harrison Hills at ¶ 3. “They carried a sign measuring eight feet. The school board member who worked at this private place of employment represented the school board on the negotiating team.” Harrison Hills at ¶ 3.
The school board filed an unfair labor practice charge with the State Employment Relations Board. The union did not deny that its act violated R.C. 4117.11(B)(7), which prohibits a union from “[i]nduc[ing] or encourage[ing] any individual in connection with a labor relations dispute to picket the residence or any place of private employment of any public official.” Rather, the union argued that R.C. 4117.11(B)(7) is unconstitutional as it is a content-based restriction on the exercise of free speech. In other words, the union argued that the law impermissibly regulates speech because of the message being conveyed, which is subject to the strictest form of scrutiny by courts.
On appeal, the state appellate court disagreed with the union’s argument, holding that “[l]abor picketing encompasses more than mere speech as it entails conduct, conduct likely to cause a reaction.” Harrison Hills at ¶ 35. Specifically, the appellate court found that “[t]he ban on picketing of a private employer in (B)(7) is a content-neutral regulation in the realm of economic regulation and collective bargaining of public employees that has an incidental burden on speech in the immediate geographical location of a private employer but is not message-based.” Harrison Hills at ¶ 36.
The reason the appellate court viewed the regulation as an economic and conduct restriction and not a speech restriction is because the real reason to picket a private employer is “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 at ¶ 34. The content or message of the actual speech is incidental to this purpose.
As a final matter, we note, as the appellate court did, that the restriction under R.C. 4117.11(B)(7) “is on picketing, not handbilling or leafletting.” Harrison Hills at ¶ 36. Presumably, a union may argue that it is free to handbill or leaflet the private employer of a board of education member without committing an unfair labor practice.
To read the case, please click here.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.