Portage Cnty. Educators Ass'n for Developmental Disabilities – Unit B v. State Emp't Relations Bd.
| Decision Date | 31 December 2020 |
| Docket Number | NO. 2019-P-0055,2019-P-0055 |
| Citation | 166 N.E.3d 63 |
| Parties | PORTAGE COUNTY EDUCATORS ASSOCIATION FOR DEVELOPMENTAL DISABILITIES – UNIT B, OEA/NEA, Appellant, v. STATE EMPLOYMENT RELATIONS BOARD, et al., Appellees. |
| Court | Ohio Court of Appeals |
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).
{¶1} This appeal stems from a labor relations dispute between the Portage County Educators Association for Developmental Disabilities–Unit B, OEA/NEA ("the Association") and the Portage County Board of Developmental Disabilities ("the Board"), during which members of the Association picketed outside the private residences of six Board members and outside the place of private employment of one Board member. The State Employment Relations Board determined the Association committed an unfair labor practice. At issue on appeal is whether the statute upon which that determination was based is an unconstitutional restriction on speech. The lower court affirmed its constitutionality. Based on our decision that the statute is content-based, not necessary to serve a compelling state interest, and not narrowly tailored to achieve those interests by the least restrictive means, we reverse the decision of the Portage County Court of Common Pleas and remand the matter for further proceedings.
{¶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 during the month of October 2017. The picketing took place on public sidewalks and/or public streets outside of, in front of, or across the street from the residences of six Board members, as well as the place of private employment of one of those Board members. The Association members who engaged in the picketing did so under the inducement and/or encouragement of the Association. The Association members were aware they were picketing the residences of the six Board members and the place of private employment of one of the Board members.
{¶5} The Board filed seven unfair labor practice charges with SERB against the Association, pursuant to and in accordance with R.C. 4117.12(B) and O.A.C. Rule 4117-7-01. The Board alleged the Association had violated R.C. 4117.11(B)(7) and (B)(8). The (B)(8) allegations were subsequently dismissed for lack of probable cause. With regard to the remaining allegations, the parties agreed to stipulate the case directly to SERB and submitted joint stipulations of fact.
{¶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, 678 N.E.2d 1365 (1997), quoting State ex rel. Columbus S. Power Co. v. Sheward , 63 Ohio St.3d 78, 81, 585 N.E.2d 380 (1992) ().
{¶7} On May 3, 2018, SERB found the Association had violated R.C. 4117.11(B)(7), which provides:
(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 R.C. 4117.01(B). The Board members are public officials and representatives of the Board. The Association is an "employee organization" as defined in R.C. 4117.01(D) and is the exclusive representative for all Service and Support Administrators as defined in R.C. 5126.15 and O.A.C. 5123-4-02 (previously defined in O.A.C. 5123:2-1-11 ).
{¶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 R.C. 4117.11(B)(7) is an unconstitutional content-based restriction on speech, in violation of the First Amendment to the United States Constitution.
{¶10} The lower court upheld SERB's decision in a March 27, 2019 judgment entry. The lower court held that R.C. 4117.11(B)(7) is content-neutral, constitutional, and enforceable.
{¶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, 2014 WL 1356231, ¶10 ; Am. Fedn. of State, Cty. & Mun. Emps. Local # 74 v. Warren , 177 Ohio App.3d 530, 2008-Ohio-3905, 895 N.E.2d 238, ¶30 (11th Dist.). "De novo review is independent from and without deference to the trial court's determination." State v. Henderson , 11th Dist. Portage No. 2010-P-0046, 2012-Ohio-1268, 2012 WL 1029187, ¶10 (citation omitted).
{¶13} R.C. 4117.11(B)(7) is part of the state of Ohio's Public Employees Collective Bargaining Act, which was enacted in 1984 to govern labor relation disputes between the government as an employer and its public employees. It 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." Harrison Hills Teachers Assn. v. State Emp. Relations Bd. , 7th Dist., 2016-Ohio-4661, 56 N.E.3d 986, ¶32, citing State ex rel. Dayton Fraternal Order of Police Lodge No. 44 v. State Emp. Relations Bd. , 22 Ohio St.3d 1, 5, 488 N.E.2d 181 (1986).
{¶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 R.C. 4117.11(B)(7) is an unconstitutional content-based regulation of speech.
{¶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, 667 N.E.2d 942 (1996), quoting Edwards v. South Carolina , 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) and New York Times Co. v. Sullivan , 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Id. , citing Frisby v. Schultz , 487 U.S. 474, 479, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), citing Perry Edn. Assn. v. Perry Local Educators' Assn. , 460 U.S. 37, 44, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).
{¶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 R.C. 4117.11(B)(7) is "content-based" or "content-neutral." Id. , citing Frisby at 481, 108 S.Ct. 2495 and Perry at 45, supra , 103 S.Ct. 948 ().
{¶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, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), quoting Clark v. Community for Creative Non-Violence , 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). ...
To continue reading
Request your trial
-
State v. Kratochvill
... ... for TD Ameritrade Financial Intelligence Unit, testified 166 N.E.3d 49 that in November 2015, ... ...