MAHONING EDUCATION ASSOCIATION OF DEVELOPMENTAL DISABILITIES, APPELLEE, v. STATE EMPLOYMENT RELATIONS BOARD ET AL., APPELLANTS.
No. 2012-1378
Supreme Court of Ohio
Submitted April 24, 2013—Decided October 23, 2013
137 Ohio St.3d 257, 2013-Ohio-4654
KENNEDY, J.
KENNEDY, J., concurs in the foregoing opinion.
Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne Annos, Assistant Prosecuting Attorney, for appellee.
David L. Doughten and Robert A. Dixon, for appellant.
[Cite as Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd., 137 Ohio St.3d 257, 2013-Ohio-4654.]
KENNEDY, J.
I. Introduction
{¶ 1} The State Employment Relations Board (“SERB“) and the Mahoning County Board of Developmental Disabilities (“MCBDD“) (collectively, “the state“) appeal from the decision of the Seventh District Court of Appeals holding unconstitutional the requirement in
{¶ 2} SERB presents the following proposition of law: ”
{¶ 3} MCBDD offers two propositions of law:
- A statutory notice requirement that does not, itself, prevent speech, is not a content-based restriction on speech.
- The government, as employer, has far broader powers to restrict expression than does the government, as sovereign; and a court errs when it fails to consider that difference.
{¶ 4} Upon review of the record and consideration of the briefs and oral argument, we limit our opinion to an analysis of
II. Background
{¶ 5} The parties stipulated to all facts. Appellant MCBDD, a public employer, and appellee, Mahoning Education Association of Developmental Disabilities, an employee organization representing MCBDD employees (“the union“), had operated pursuant to a collective-bargaining agreement that was effective from September 1, 2004, through August 31, 2007. The agreement contained a grievance-arbitration procedure that culminated in final and binding arbitration. In June 2007, the union filed a notice with SERB and MCBDD to begin negotiations for a successor contract.
{¶ 6} MCBDD held a board meeting in a county-owned building on November 5, 2007. Immediately before that meeting, union representatives peacefully
{¶ 7} The parties agree that the union submitted no notice of its intent to picket to SERB or MCBDD before the November 5, 2007 picketing.
III. Procedural Posture
{¶ 8} MCBDD filed an unfair-labor-practice charge with SERB on November 27, 2007, alleging, among other things, that the union had violated the notice requirements of
{¶ 9} The union appealed to the Common Pleas Court of Mahoning County, asserting that
{¶ 10} In defense of its decision, SERB responded that the statute regulates only conduct. It argued that
{¶ 11} The union appealed to the Seventh District Court of Appeals, which reversed the judgment of the trial court and declared the notice requirement of
{¶ 12} We affirm the court of appeals’ judgment reversing the decision of the trial court, but on alternative grounds. We hold that the legislature did not intend
IV. Legal Analysis
{¶ 13} A statute is presumed constitutional. “In enacting a statute, it is presumed that * * * [c]ompliance with the constitutions of the state and of the United States is intended.”
{¶ 14}
(B) It is an unfair labor practice for an employee organization, its agents, or representatives, or public employees to:
* * *
(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.
{¶ 15} To discern legislative intent, we read words and phrases in context and construe them in accordance with rules of grammar and common usage. State ex rel. Barley v. Ohio Dept. of Job & Family Servs., 132 Ohio St.3d 505, 2012-Ohio-3329, 974 N.E.2d 1183, ¶ 20. Reading the word “picketing” in the context of the statute, and particularly in the context of the phrase “picketing, striking, or other concerted refusal to work,” we find it clear that
{¶ 16} “Picketing” has more than one definition. The American Heritage Dictionary of the English Language 1327 (4th Ed.2000), for example, defines “picket” 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.” (Emphases added.) “Picketing” under this definition, therefore, would mean the conduct associated with protests during a strike or work stoppage. But 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.” Id. See also Merriam-Webster‘s Collegiate Dictionary 937 (11th Ed.2003) (defining “picket” as “[a] person posted for a demonstration or protest“).
{¶ 17} We conclude that the legislature sought to regulate the first type of picketing defined above. The statute addresses “any picketing, striking, or other concerted refusal to work” (emphasis added), and this language expresses the drafters’ understanding of picketing as part of a work stoppage. Had the legislature intended the notice requirement to cover general informational labor picketing, it would have omitted the word “other.”
{¶ 18} This reading is consistent with our duty to refrain from deciding constitutional issues unless absolutely necessary. State ex rel. Miller v. Brady, 123 Ohio St.3d 255, 2009-Ohio-4942, 915 N.E.2d 1183, ¶ 11. Because the statute does not apply in this case, the issue of the statute‘s constitutionality is beyond the scope of our review.
{¶ 19} We affirm the judgment of the Seventh District Court of Appeals that
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, and FRENCH, JJ., concur.
LANZINGER and O‘NEILL, JJ., concur in judgment only and concur separately.
LANZINGER, J., concurring in judgment only.
{¶ 20} Because I cannot agree with the majority‘s holding that “the legislature did not intend
The Statutory Language
{¶ 21} When a union engages in “any picketing, striking, or other concerted refusal to work” without giving written notice ten days beforehand, it has committed an unfair labor practice. (Emphasis added.)
{¶ 22} The majority opinion concludes that addition of the word “other” to the phrase “concerted refusal to work” limits the meaning of picketing to “picketing as part of a work stoppage.” But the word “any” before “picketing” means that informational picketing is included by definition. Although the parties have agreed that the circumstances here involved “informational” picketing unrelated to a strike or other work stoppage, I believe that it is irrelevant, because notice applies to “any picketing.”
{¶ 23} The primary question we accepted on appeal was whether the statute is constitutional, facially or as applied. In reversing the judgment of the trial court that upheld SERB‘s decision, the Seventh District Court of Appeals held that the notice provision of
{¶ 24} The first issue is the standard under which the advance-notice provision should be reviewed. If the regulation is content-based, it is subject to strict scrutiny under the First Amendment. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). If the regulation is content-neutral, it is subject to a lesser intermediate scrutiny. Turner Broadcasting Sys., Inc. v. Fed. Communications Comm., 512 U.S. 622, 661-662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In my view, the provision that mandates advance notice before picketing does not regulate speech based on its content.
{¶ 25}
{¶ 26} Applicability of
{¶ 27} Nevertheless, I would hold that the requirement under
{¶ 28} Federal courts have struck down a number of laws involving notice provisions. For example, a content-neutral city ordinance that required 20-day
{¶ 29} Appellants bear a heavy burden to show that
{¶ 30} In Turner Broadcasting Sys., 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497, the court stated:
When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply “posit the existence of the disease sought to be cured.” Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (C.A.D.C.1985). It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.
Id. at 664.
{¶ 31} SERB argued that the advance-notice provision of
{¶ 32} Finally, although SERB contends that the statute is a mere time, place, or manner regulation, it does not explain the necessity of the length of ten days for advance notice. In sum, this ten-day ban on speech created by
Conclusion
{¶ 33} I would hold that justification for
O‘NEILL, J., concurs in the foregoing opinion.
Green Haines Sgambati Co., L.P.A., Ira J. Merkin, Charles W. Oldfield, and Stanley Okusewsky III, for appellee.
Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor General, Stephen P. Carney, Deputy Solicitor, and Lori Weisman and Michael D. Allen, Assistant Attorneys General, for appellant State Employment Relations Board.
Eugene P. Nevada, for appellant Mahoning County Board of Developmental Disabilities.
Britton Smith Peters & Kalail Co., L.P.A., John E. Britton, Sherrie C. Massey, and Giselle S. Spencer, urging reversal for amici curiae Ohio School Boards Association and Ohio Association of School Business Officials.
Fishel Hass Kim Albrecht, L.L.P., Jonathan J. Downes, Anne E. McNab, and Marc A. Fishel, urging reversal for amici curiae Ohio Public Employer Labor Relations Association, Ohio Transit Association, County Commissioners Association of Ohio, and National Public Employer Labor Relations Association.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, and Marc J. Jaffy, urging affirmance for amicus curiae Ohio AFL-CIO.
Cloppert, Latanick, Sauter & Washburn and Ronald H. Snyder, urging affirmance for amici curiae Ohio Public Employees Lawyers Association, Ohio Associ-