Harrison Hills Teachers Ass'n v. State Emp't Relations Bd.

• Citation: 56 N.E.3d 986
• Decision Date: 17 June 2016
• Docket Number: No. 15 HA 0008.,15 HA 0008.
• Parties: HARRISON HILLS TEACHERS ASSOCIATION, OEA/NEA, Plaintiff–Appellant, v. STATE EMPLOYMENT RELATIONS BOARD and Harrison Hills City School District Board of Education, Defendants–Appellees.
• Court: Ohio Court of Appeals

56 N.E.3d 986

HARRISON HILLS TEACHERS ASSOCIATION, OEA/NEA, Plaintiff–Appellant

v.STATE EMPLOYMENT RELATIONS BOARD and Harrison Hills City School District Board of Education, Defendants–Appellees.

No. 15 HA 0008.

Court of Appeals of Ohio, Seventh District, Harrison County.

June 17, 2016.

Charles W. Oldfield, Ira J. Mirkin, Stanley Okusewski, III, Green Haines Sgambati, Co., LPA, Youngstown, OH, for plaintiff-appellant.

Lori J. Freedman, Assistant Attorney General, Thomas C. Holmes, Megan D. Mauer, Pepple & Waggoner, Ltd., Cleveland, OH, for defendants-appellees.

CAROL ANN ROBB, J., CHERYL L. WAITE, J., and MARY DeGENARO, J.

OPINION

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 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 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 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., 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.

{¶ 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....