Harrison Hills Teachers Assn. v. State Emp. Relations Bd. ( 2016 )

[Cite as Harrison Hills Teachers Assn. v. State Emp. Relations Bd., 2016-Ohio-4661.]
STATE OF OHIO, HARRISON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
HARRISON HILLS TEACHERS ) CASE NO. 15 HA 0008
ASSOCIATION, OEA/NEA, )
)
PLAINTIFF-APPELLANT, )
)
VS. ) OPINION
)
STATE EMPLOYMENT RELATIONS )
BOARD AND HARRISON HILLS CITY )
SCHOOL DISTRICT BOARD OF )
EDUCATION, )
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Harrison County, Ohio
Case No. CVH-2010-0052
JUDGMENT: Affirmed.
JUDGES:
Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: June 17, 2016
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APPEARANCES:
For Plaintiff-Appellant: Atty. Charles W. Oldfield
Atty. Ira J. Mirkin
Atty. Stanley Okusewski, III
Green Haines Sgambati, Co., LPA
City Centre One, Suite 800
100 Federal Plaza East
Youngstown, Ohio 44503
For Defendants-Appellees: Atty. Lori J. Freedman
Assistant Attorney General
615 W. Superior Avenue
Cleveland, Ohio 44113
Atty. Thomas C. Holmes
Atty. Megan D. Mauer
Pepple & Waggoner, LTD.
5005 Rockside Rd., Suite 260
Cleveland, Ohio 44131
[Cite as Harrison Hills Teachers Assn. v. State Emp. Relations Bd., 2016-Ohio-4661.]
ROBB, J.
{¶1} Appellant Harrison Hills Teachers Association, OEA/NEA (“the union”)
appeals the decision of the Harrison County Common Pleas Court in an
administrative appeal. The trial court upheld the decision of Appellee State
Employment Relations Board (“SERB”), which found the union committed an unfair
labor practice in violation of R.C. 4117.11(B)(7) by inducing or encouraging another,
in connection with a labor dispute, to picket the private employer of a member of
Appellee Harrison Hills City School District Board of Education (“the school board”).
The union argues the statutory provision is an unconstitutional restriction on speech
in violation of the First Amendment. Specifically, the union claims the trial court erred
in finding R.C. 4117.11(B)(7) is not a content-based restriction on speech subject to
strict scrutiny.
{¶2} The picketing restriction is not content-based merely because it entails
picketing “in connection with a labor relations dispute.” The law is contained within
the Ohio’s Public Employee Collective Bargaining Act and is a reasonable time,
place, or manner restriction in the labor picketing genre. The provision is not subject
to strict scrutiny. The trial court’s judgment upholding SERB’s unfair labor practice
decision is affirmed.
STATEMENT OF THE CASE
{¶3} As their collective bargaining agreement ended in June 2007, the union
and the school board conducted negotiations for a successor contract. On
September 12, 2007, the union provided a notice of intent to strike (to occur on
October 1). On September 26, 2007, union members picketed on a public street
outside of a school board member’s private employer, located in St. Clairsville, Ohio
(outside of the school district). 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.
{¶4} The school board filed an unfair labor practice charge with SERB. The
case was submitted to SERB on the briefs and a joint stipulation of facts. The union
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wished to advance a constitutionality argument and essentially admitted its violation
of R.C. 4117.11(B)(7), which provides:
It is an unfair labor practice for an employee organization, its agents, or
representatives, or public employees to: * * * 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[.]
{¶5} On March 31, 2010, SERB issued an order finding an unfair labor
practice in violation R.C. 4117.11(B)(7). SERB pointed out that it had no authority to
declare its enabling statute unconstitutional. See State ex rel. Rootstown Local
School Dist. Bd. of Edn. v. Portage Cty. Court of Common Pleas, 78 Ohio St.3d 489,
494, 678 N.E.2d 1365 (1997), citing State ex rel. Columbus S. Power Co. v.
Sheward, 63 Ohio St.3d 78, 81, 585 N.E.2d 380 (1992) (“It is settled that an
administrative agency is without jurisdiction to determine the constitutional validity of
a statute.”).
{¶6} The union appealed the administrative decision to the trial court. The
union filed a brief in the trial court, urging R.C. 4117.11(B)(7) is unconstitutional as it
is a content-based law and does not meet the strict scrutiny test. The school board
and SERB each filed response briefs arguing the statutory provision is constitutional.1
{¶7} On July 23, 2015, the trial court issued a decision upholding the
administrative order. The court ruled R.C. 4117.11(B)(7) is content-neutral rather
than content-based, finding the speech restriction to be incidental to the law, not the
reason for the law. The court rejected the Eighth District’s decision that (B)(7) is an
unconstitutional content-based restriction on labor speech, in a case involving the
residential picketing portion of (B)(7). The trial court found the law narrowly tailored
as it prohibited picketing at only two specific locations. The court cited a United
States Supreme Court case for the proposition that a prohibition on the picketing of a
1 The case was fully briefed in the trial court in August 2010. Supplemental authority was filed
in 2012 and 2015. After the union filed a request for a status conference in February 2015, the trial
court removed the case from the docket of a retired visiting judge and scheduled oral argument.
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business unrelated to the labor dispute is not unconstitutional as it leaves open other
traditional modes of communication. See Carpenters & Joiners Union of America,
Local 213 v. Ritter's Café, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143 (1942). The
union filed a timely appeal.
ASSIGNMENT OF ERROR
{¶8} The union’s sole assignment of error provides:
“The trial court erred when it found that R.C. 4117.11(B)(7)’s ban on peaceful
labor picketing does not violate the right to freedom of speech.”
{¶9} The union points out that a public street is a traditional public forum and
picketing has been characterized as a classic example of First Amendment
expression. The union asserts R.C. 4117.11(B)(7) should be presumed
unconstitutional due to its restriction on speech. There is no contention that R.C.
4117.11(B)(7) is unconstitutional if a standard less than strict scrutiny were to apply.
Rather, the union asserts the provision fails the strict scrutiny test. In positing strict
scrutiny is applicable, the union urges (B)(7) is content-based as it regulates
picketing only on the subject of a labor relations dispute. See R.C. 4117.11(B)(7) (“in
connection with a labor relations dispute”).
{¶10} According to the union, United States Supreme Court precedent has
shifted dramatically since the 1942 Ritter’s Café case relied upon by the trial court.
The union asks us to apply the United States Supreme Court cases of Mosley and
Carey, which struck laws that favored labor picketing. The union says (B)(7) does
the opposite by favoring non-labor picketing. The Eighth District applied these cases
to find (B)(7) an unconstitutional subject-matter based restriction on labor speech.
See United Electrical, Radio and Machine Workers of America v. SERB, 126 Ohio
App.3d 345, 710 N.E.2d 358 (8th Dist.1998) (where the fact-pattern involved only the
residential picketing portion of the statute and did not involve private employer
picketing). The Colorado Supreme Court invalidated a law which made it an unfair
labor practice to picket the home of a fellow employee, finding it was a content-based
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law which failed strict scrutiny. CF&I Steel, L.P. v. United Steel Workers of America,
23 P.3d 1197 (Colo.2001) (not a public employer case).2
{¶11} The union notes that in evaluating a different restriction under (B)(8) of
the same statute, this court pointed out (B)(7) specifically applies to picketing “in
connection with a labor relations dispute.” See Mahoning Edn. Assn. of Dev.
Disabilities v. State Emp. Relations Bd., 7th Dist. No. 11MA52, 2012-Ohio-3000, 973
N.E.2d 322, ¶ 18; R.C. 4117.11(B)(8) (requiring public employees to give ten days’
written notice before engaging “in any picketing, striking, or other concerted refusal to
work”). As that case did not involve picketing of a private employer, the line of cases
on the topic of secondary picketing was not raised or considered by this court. In any
event, the union does not rely on the constitutional holding made by this court in that
case, apparently recognizing the Ohio Supreme Court ruled this court should not
have addressed the constitutional claim. Mahoning Edn. Assn. of Dev. Disabilities v.
State Emp. Relations Bd., 137 Ohio St.3d 257, 2013-Ohio-4654, 998 N.E.2d 1124(affirming the decision to reverse SERB but only on unrelated, predicate grounds).3
The union relies on the argument that the law is content-based because it only
applies “in connection with a labor relations dispute.”
{¶12} In applying strict scrutiny, the union asserts the state’s interests
proffered by SERB were not compelling; it is claimed that protecting residential
privacy is merely significant, encouraging public service is merely desirable, and
protecting labor peace is vague. The union also says SERB failed to show the law is
narrowly tailored to serve these interests since order can be preserved via residential
ordinances and/or the criminal code. The union notes (B)(7) has been unenforceable
in Cuyahoga County since 1998 but no evidence shows the state’s interests were
negatively affected as a result of that appellate court’s decision.
2 In the underlying appeal, the Colorado appellate court expressly adopted the Eighth District’s
position in United Electrical. CF&I Steel, 990 P.2d 1124 (Colo.App.1999).
3 The Supreme Court found the picketing prohibited by (B)(8) was only that related to a work
stoppage due to the modifying language, “or other concerted refusal to work.” As (B)(8) did not apply
to informational picketing, the SERB decision was reversed with no need to reach any constitutional
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{¶13} The school board relies on Ritter’s Café for the proposition that the
state has the power to confine labor picketing to the sphere of communication. It
points to cases upholding secondary boycott bans designed to protect innocent
neutrals from being entangled in a labor dispute. The school board emphasizes that
nothing in Mosley and Carey suggests the Court was overruling long-standing case
law permitting this type of restriction on labor picketing. It urges the prohibition on
picketing a private employer in connection with a labor relations dispute with a public
employer is a content-neutral time, place, or manner restriction.
{¶14} In addition to these arguments, SERB points out that this case deals
with the government as an employer enforcing a law regarding the collective
bargaining process rather than the government regulating the conduct of its citizens.
See Painter v. Graley, 70 Ohio St.3d 377, 381, 639 N.E.2d 51 (1994) (“This court has
consistently held that rational restrictions on a public employee's right to run for office
may be imposed without violating rights arising from the Ohio Constitution.”), citing
Waters v. Churchill, 511 U.S. 661, 672, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994)
(“Even something as close to the core of the First Amendment as participation in
political campaigns may be prohibited to government employees.”). As (B)(7) is part
of the Ohio Public Employee Collective Bargaining Act, SERB emphasizes it applies
to labor relations disputes and public employees by its very nature. SERB urges
(B)(7) serves a purpose unrelated to the content of the speech and is content-neutral,
even if there are incidental effects on some speakers or messages.
{¶15} SERB distinguishes the recent United States Supreme Court decision
in Reed v. Gilbert, where sign restrictions were entirely based on the communicative
content of the sign. SERB contends (B)(7) does not seek to ban speech based on
the message: the union is free to express its message, just not at two specific places
unrelated to the dispute. After arguing strict scrutiny is inapplicable, the school board
and SERB conclude by arguing (B)(7) is narrowly tailored to serve significant
issues. The type of picketing prohibited in (B)(7) is not modified by a “concerted refusal to work” and
thus includes informational picketing. See Mahoning Edn. Assn., 137 Ohio St.3d 257.
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government interests under the intermediate scrutiny test. SERB also claims the law
would pass the strict scrutiny test if the court found it content-based.
LAW & ANALYSIS
{¶16} As the parties concede, this case involves public streets and sidewalks:
a public forum. See Perry Educ. Assn. v. Perry Local Educators Assn., 460 U.S. 37,
45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (a street and parks are “quintessential
public forums”). If a statute that burdens speech in a public forum is challenged on a
First Amendment basis, there is generally an inquiry as to whether the regulation is
content-based or content-neutral. See id.; Seven Hills v. Aryan Nations, 76 Ohio
St.3d 304, 306, 667 N.E.2d 942 (1996). The answer to this question determines
whether the law is subject to strict scrutiny (as in the case of content-based speech
restrictions) or intermediate scrutiny (as in the case of content-neutral speech
restrictions). See id.{¶17} In meeting the strict scrutiny test for a content-based law, the
government is required to show that the regulation is necessary to serve a compelling
state interest and is narrowly tailored to achieve that interest by the least restrictive
means. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120
S.Ct. 1878, 146 L.Ed.2d 865 (2000); Perry Ed. Assn., 460 U.S. at 45. See also In re
Judicial Campaign Complaint Against O'Toole, 141 Ohio St.3d 355, 2014-Ohio-4046,
24 N.E.3d 1114, ¶ 19-20 (content-based speech restriction is presumed invalid;
burden is on government to show restriction is constitutional).
{¶18} 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. Ward v. Rock Against
Racism, 491 U.S. 781, 791, 797-798, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (the
law need not be the least restrictive means); Perry Ed. Assn., 460 U.S. at 45.
{¶19} As to whether the restriction is content-based or content-neutral, the
distinction is not always easy, “has proved problematic in practice,” and is considered
a “perplexing problem in First Amendment jurisprudence.” Painesville Bldg. Dept. v.
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Dworken & Bernstein Co., L.P.A., 89 Ohio St.3d 564, 568, 733 N.E.2d 1152 (2000).
A law is content-based if it regulates speech because of the message being
conveyed. Turner Broadcasting Sys. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445,
129 L.Ed.2d 497 (1994) (regardless of whether the law favors or disfavors the
message). “As a general rule, laws that by their terms distinguish favored speech
from disfavored speech on the basis of the ideas or views expressed are content
based.” Id., citing Burson v. Freeman, 504 U.S. 191, 197, 112 S.Ct. 1846, 119
L.Ed.2d 5 (1992) (“Whether individuals may exercise their free-speech rights near
polling places depends entirely on whether their speech is related to a political
campaign”). Even if it is not viewpoint-based, a law can still be content-based if it
burdens speech on a topic of expression. Burson, 504 U.S. at 197.
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., __ U.S. __, 135 S.Ct. 2218, 2227, 192 L.Ed.2d 236(2015) (citations omitted).
{¶20} In Reed, a town defined categories of temporary, political, and
ideological signs on the basis of their message and placed different restrictions on
each category. As the applicable restriction was entirely based on a sign's
communicative content, the regulation of speech was said to be content-based. Id.“When the Government seeks to restrict speech based on its content, the usual
presumption of constitutionality afforded congressional enactments is reversed.”
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Playboy, 529 U.S. at 817 (a content-based law is presumptively invalid, and the
government has the burden to rebut that presumption).
{¶21} “By contrast, laws that confer benefits or impose burdens on speech
without reference to the ideas or views expressed are in most instances content
neutral.” Id. A regulation is said to be content-neutral if it merely incidentally burdens
speech by regulating the time, place, or manner of the speech. Id. A content-neutral
regulation is one “justified without reference to the content of the regulated speech.”
Ward, 491 U.S. at 791. “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.” Id.{¶22} The union asks us to apply the United States Supreme Court cases of
Mosley and Carey. In Mosley, an ordinance prohibited picketing near a school
unless it was peaceful labor picketing of a school involved in a labor dispute.
Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). An equal
protection claim was found to be closely intertwined with freedom of expression
doctrines. Id. at 95. The Court held the 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. The Court concluded the discrimination against
non-labor picketing was not narrowly tailored to achieve a compelling interest (as
peaceful non-labor picketing would not be more disruptive than peaceful labor
picketing). Id.{¶23} In Carey, a statute banned the picketing of a residence unless the
residence was used as a place of employment. Carey v. Brown, 447 U.S. 455, 100
S.Ct. 2286, 65 L.Ed.2d 263 (1980). The Court applied Mosley and invalidated the
statute. Id. at 463-469. The Court found the law content-based as it discriminated
between lawful and unlawful conduct based upon the content of the demonstrator's
communication; it exempted only the “peaceful picketing of a place of employment
involved in a labor dispute.” Id. at 460 (finding the statute made an impermissible
distinction between labor and non-labor picketing and conditioned permissibility
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solely on the message being conveyed). The Court noted labor picketing was not
entitled to more First Amendment protections than other protests. Id. at 466.
{¶24} The Eighth District relied on Mosley and Carey to support its decision to
declare R.C. 4117.11(B)(7) unconstitutional. United Electrical, Radio and Machine
Workers of America v. SERB, 126 Ohio App.3d 345, 355-356, 710 N.E.2d 358 (8th
Dist.1998). In that case, the union picketed the residence of the executive director of
the Ohio Turnpike Commission during a labor dispute. The Eighth District found
(B)(7) content-based and subject to strict scrutiny because it applied to picketing “in
connection with a labor dispute * * *.” Id. at 350-352 (regulation of residential labor
picketing rather than all residential picketing was found to be content-based). The
court concluded SERB failed to meet its burden to show the law survived strict
scrutiny as the interests asserted (protecting residential privacy, encouraging public
service, and maintaining labor peace) were not compelling and the law was not
narrowly tailored to meet those interests. Id. at 352-353.
{¶25} It should be noted the United Electrical case involved only the
residential picketing portion of (B)(7) and did not involve the picketing of a private
employer, as is the case here. It should also be noted the Eighth District declined to
apply the United States Supreme Court’s holding in Ritter’s Café on the grounds it
was “decided prior to modern Supreme Court jurisprudence which applies the
content-based/content-neutral analysis.” Id. at fn. 2.
{¶26} In Ritter’s Café, the union picketed a restaurant because the owner was
building a structure at a different location and the contractor hired employed non-
union carpenters and painters. The United States Supreme Court characterized the
situation as one where a state “deemed it desirable to insulate from the dispute an
establishment which industrially has no connection with the dispute.” Carpenters &
Joiners Union of America, Local 213 v. Ritter's Cafe, 315 U.S. 722, 727, 62 S.Ct.
807, 86 L.Ed. 1143 (1942).
It is true that by peaceful picketing workingmen communicate their
grievances. As a means of communicating the facts of a labor dispute
peaceful picketing may be a phase of the constitutional right of free
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utterance. But recognition of peaceful picketing as an exercise of free
speech does not imply that the states must be without power to confine
the sphere of communication to that directly related to the dispute.
Restriction of picketing to the area of the industry within which a labor
dispute arises leaves open to the disputants other traditional modes of
communication. To deny to the states the power to draw this line is to
write into the Constitution the notion that every instance of peaceful
picketing-anywhere and under any circumstances-is necessarily a
phase of the controversy which provoked the picketing. Such a view of
the Due Process Clause would compel the states to allow the
disputants in a particular industrial episode to conscript neutrals having
no relation to either the dispute or the industry in which it arose.
Id. at 727-728. Forbidding the conscription of neutrals in similar disputes “represents
the prevailing, and probably the unanimous, policy of the states.” Id. at 728.
{¶27} After Ritter’s Café found it was within the state’s power to govern the
permissible types of contests between industrial combatants, the Ohio Supreme
Court ruled a secondary boycott involving picketing or bannering was unlawful
conduct under the common law and emphasized the constitutional right of free
speech depended on the lawful exercise of the right. W.E. Anderson Sons Co. v.
Local Union No. 311, Internatl. Broth. of Teamsters, Chauffeurs, Stablemen &
Helpers of America, 156 Ohio St. 541, 561-562, 104 N.E.2d 22 (1952) (reviewing
United States Supreme Court cases up to that point), citing, e.g., International Broth.
of Elec. Workers, Local 501, A.F. of L. v. N.L.R.B., 341 U.S. 694, 71 S.Ct. 954, 95
L.Ed. 1299 (1951). In this cited case, the United States Supreme Court compared
the previously-granted states’ right to regulate secondary picketing to the federal
government’s power under the National Labor Relations Act (N.L.R.A.) to prohibit the
incitement of secondary picketing:
The prohibition of inducement or encouragement of secondary pressure
by [§] 8(b)(4)(A) carries no unconstitutional abridgment of free speech.
* * * The substantive evil condemned by Congress in [§] 8(b)(4) is the
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secondary boycott and we recently have recognized the constitutional
right of states to proscribe picketing in furtherance of comparably
unlawful objectives.”
International Broth. of Elec. Workers, 341 U.S. at 705.
{¶28} Forty years after Ritter’s Café, the United States Supreme Court
continued to uphold secondary picketing restrictions in labor disputes. In the Retail
Store case, the Court agreed the union’s picketing violated the statutory ban on the
coercion of neutral parties with the object of forcing them to cease dealing in the
primary product or to cease doing business with the primary employer. See N.L.R.B.
v. Retail Store Emp. Union, Local 1001, 447 U.S. 607, 608, 100 S.Ct. 2372, 65
L.Ed.2d 377 (1980). A plurality of the Court said it was well-established that
Congress does not restrict constitutionally-protected speech by prohibiting secondary
picketing done to persuade the customers of a secondary employer to boycott him so
that he will pressure the primary employer in some manner. Id. at 616. Such
picketing spreads labor discord by coercing a neutral party to join the fray, and a
prohibition on picketing done to further unlawful objectives does not violate the First
Amendment. Id.{¶29} Two other justices concurred separately to set forth a different First
Amendment analysis, but both found the law constitutional. See id. at 616-618(Blackmun, J., concurring in part and in result) (finding Congress struck a “delicate
balance between union freedom of expression and the ability of neutral employers,
employees, and consumers to remain free from coerced participation in industrial
strife”); id. at 618-620 (Stevens, J., concurring in part and in result). In his concurring
opinion, Justice Stevens expressed:
I have little difficulty in concluding that the restriction at issue in this
case is constitutional. Like so many other kinds of expression,
picketing is a mixture of conduct and communication. In the labor
context, it is the conduct element rather than the particular idea being
expressed that often provides the most persuasive deterrent to third
persons about to enter a business establishment.
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The concurring opinion of Justice Blackmun expressed:
The plurality's cursory discussion of what for me are difficult First
Amendment issues presented by this case fails to take account of the
effect of this Court's decision in Police Department of Chicago v.
Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), on the
question whether the National Labor Relations Act's content-based ban
on peaceful picketing of secondary employers is constitutional. The
failure to take Mosley into account is particularly ironic given that the
Court today reaffirms and extends the principles of that case in Carey v.
Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263.
This discussion and the fact Retail Store was released on the same day as Carey
contradicts the union’s argument that Ritter’s Café is outdated law and the content-
based test superseded earlier labor cases.
{¶30} After Retail Store, the entire Court stated: “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. The labor laws reflect a careful balancing of interests.”
International Longshoremen's Assn., AFL-CIO v. Allied Internatl., Inc., 456 U.S. 212,
226, 102 S.Ct. 1656, 72 L.Ed.2d 21 (1982) (citations omitted).
{¶31} At the same time, the Court distinguished a political protest case from
its labor cases resulting from economic regulation by reiterating: “Secondary
boycotts and picketing by labor unions may be prohibited, as part of ‘Congress'
striking of the delicate balance between union freedom of expression and the ability
of neutral employers, employees, and consumers to remain free from coerced
participation in industrial strife.’” N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S.
886, 912, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982), quoting Retail Store, 447 U.S. at
617-618 (Blackmun, J., concurring in part). It is important to note that handbilling and
leafletting are not prohibited by picketing restrictions as these manifestations of
speech are distinct from picketing, which involves a patrolling behavior. See, e.g.,
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Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485
U.S. 568, 582-583, 588, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) (“That construction
makes unnecessary passing on the serious constitutional questions that would be
raised by the Board's understanding of the statute.”).
{¶32} The N.L.R.A. does not apply to public employees. Various states have
enacted collective bargaining laws to govern labor relation disputes between
themselves (as employers) and the public employees. The law at issue here is a part
of such an act. The Public Employees Collective Bargaining Act is the state of Ohio’s
exercise of its police power to promote the general safety and welfare. City of
Kettering v. State Emp. Relations Bd., 26 Ohio St.3d 50, 55, 496 N.E.2d 983 (1986),
citing State ex rel. Dayton Fraternal Order of Police Lodge No. 44, v. SERB, 22 Ohio
St.3d 1, 5, 488 N.E.2d 181 (1986) (the act 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).4
{¶33} SERB also mentions the Hatch Act, which bars federal employees from
taking an active part in political management or campaigns. The First Amendment is
not violated by the act’s prohibition on partisan political conduct by federal
employees. Civil Serv. Comm. v. National Assn. of Letter Carriers, AFL-CIO, 413
U.S. 548, 556, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). The point made by SERB is
the government as an employer and participant in collective bargaining is not the
equivalent of the government as sovereign over its general citizenry.
{¶34} The picketing of the private employer of a public official (or
representative of a public employer) in connection with a labor dispute is more akin to
4 As background for the act, there were 428 public employee work stoppages in Ohio between
1973 and 1980, prior to the act’s passage. State ex rel. Dayton Fraternal Order of Police, 22 Ohio
St.3d at 5. Ohio ranked near or at the top of the states for the highest number of strikes by safety
forces in the 1970’s, and there were fifteen strikes by safety forces, involving 2,300 workers, in 1980.
“Clearly, the situation had reached crisis proportions.” City of Rocky River v. State Emp. Relations
Bd., 43 Ohio St.3d 1, 539 N.E.2d 103 (1989), fn. 16. “During those turbulent days, public employees,
including safety forces, were also prohibited from striking, but frustrations stemming from employee
powerlessness frequently erupted into illegal strikes. The General Assembly has put an end to such
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the secondary picketing labor cases than the Mosley and Carey cases, which
involved restrictions on picketing by the public on general concerns, including political
concerns. This picketing of the private employer 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.
{¶35} Labor picketing encompasses more than mere speech as it entails
conduct, conduct likely to cause a reaction. See, e.g., Building. Serv. Employees
Internatl. Union, Local 262 v. Gazzam, 339 U.S. 532, 537, 70 S.Ct. 784, 94 L.Ed.
1045 (1950). The reaction is considered contrary to state policy when the place of
the picket is a neutral business that happens to employ a public official or
representative of a public employer. Secondary picketing of neutrals was enjoined
under the common law. W.E. Anderson Sons, 156 Ohio St. at 561-562 (the
constitutional right of free speech depends on the lawful exercise of the right but a
secondary boycott is considered unlawful conduct under the common law). A similar
policy is now codified in R.C. 4117.11(B)(7) as to public employees and their unions
who induce or encourage the picketing of a neutral private employer in connection
with a labor relations dispute.
{¶36} Based upon the foregoing collection of authorities, this court concludes
the pertinent prohibition in (B)(7) 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. See Ward, 491 U.S. at 791 (“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.”). The private
employer forum for the public employee labor dispute picketing was restricted due to
the regulation of conduct akin to secondary picketing; the speech is considered
incident to the unlawful conduct. We note the restriction is on picketing, not
handbilling or leafletting. As in the Supreme Court’s labor cases, the state is merely
ensuring the sphere of the labor dispute is not expanded to the point that private
chaos, particularly where safety forces are concerned, by enacting R.C. Chapter 4117, the Public
Employees' Collective Bargaining Act.” Id. at 20.
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employers become embroiled in collective bargaining which does not concern their
business. The 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.
{¶37} Accordingly, strict scrutiny does not apply. Where strict scrutiny is not
required, then the state is not required to show the law is the least restrictive means
available to meet the state’s interests, nor must the interests be compelling. See id.
The ban on picketing a private employer targets only the issue it seeks to remedy
(the effects of secondary labor picketing) and leaves open ample alternative channels
for communication. As aforementioned, the union does not contend the law would
fail under a test less than strict scrutiny; nor did the union raise any such argument
below. We need proceed no further.
{¶38} For the foregoing reasons, the trial court’s decision is upheld.
Waite, J., concurs.
DeGenaro, J., concurs.