PORTAGE COUNTY EDUCATORS ASSOCIATION FOR DEVELOPMENTAL DISABILITIES – UNIT B, OEA/NEA, Appellant, - vs - STATE EMPLOYMENT RELATIONS BOARD, et al., Appellees.
CASE NO. 2019-P-0055
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
2020-Ohio-7004
[Cite as Portage Cty. Educators Assn. for Dev. Disabilities - Unit B, OEA/NEA v. State Emp. Relations Bd., 2020-Ohio-7004.]
TIMOTHY P. CANNON, P.J.
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
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
{¶5} The Board filed seven unfair labor practice charges with SERB against the Association, pursuant to and in accordance with
{¶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
(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[.]
{¶8} The Board is a “public employer” as defined in
{¶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
{¶10} The lower court upheld SERB‘s decision in a March 27, 2019 judgment entry. The lower court held that
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,
{¶13}
{¶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
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 Carolina, 372 U.S. 229, 235 (1963) and
{¶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
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).
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
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.
(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
{¶23} Two Ohio appellate districts have analyzed the constitutionality of
{¶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.
{¶26} In United Electrical, the Eighth District reached its decision that
{¶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).
{¶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 “‘peaceful’ nonlabor picketing,
{¶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.’
{¶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,
{¶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
R.C. 4117.11(B)(7) is Content Based
{¶35} Relying on Mosley and Carey, the Eighth District declared in United Electrical that
{¶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
{¶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}
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
{¶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
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.’
{¶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
{¶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 (1980) (“Retail Store“), fn. 10. Specifically, Section 8(b)(4)(ii)(B) of the NLRA (codified at
{¶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
{¶53}
{¶54} Nevertheless, in Harrison Hills, the Seventh District attempted to liken the NLRA prohibition with that found in
{¶55} Because
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
{¶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
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.
{¶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:
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.
{¶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. * * *”
{¶66} In light of the above constitutional protections, we conclude that SERB has failed to meet its burden to establish that
Narrowly Tailored
{¶67} Even if SERB had established such an interest,
{¶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
{¶69} Second, in contrast to the prohibited secondary picketing discussed above,
{¶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
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,
{¶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
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
{¶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
{¶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
{¶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
{¶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
Governmental Interests
{¶87} I also wish to elaborate on the discussion of the governmental interests that
{¶88} As this court‘s opinion notes, SERB and the Board posit that
{¶89} It should be further noted that the first interest expressly relates to
{¶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).
{¶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
{¶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
{¶100} Despite the court‘s limiting constructions, however, commentators have questioned the constitutionality of
Ohio Protections
{¶101} Finally, I believe the interests that
{¶102} As this court‘s opinion aptly notes,
{¶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.”
{¶105} It is important to recognize that the word “publish” was not included in the state‘s original Constitution of 1802. See
{¶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).
{¶110}
{¶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.”
{¶112} Accordingly, I would also conclude that SERB has failed to meet its burden under Ohio law to establish that