By Nelson Cary and Michael Shoenfelt

Under Ohio law, a public employee union is required to provide ten days advance notice of its intention to engage in “any picketing, striking, or other concerted refusal to work.” Last week, the Ohio Supreme Court decided how this rule applied to an informational picket, which does not involve a simultaneous work stoppage, but instead is intended to notify the public of a dispute with the public employer. In Mahoning Education  Association of Developmental Disabilities v. State Employment Relations Board, Slip Opinion No. 2013-Ohio-4654 (pdf), the Court held that the 10 day notice did not apply to an informational picket.

The Court could not unanimously agree on why the law did not apply. Dissecting the law’s wording, the majority of the Court focused on the word “other.”  In the majority’s interpretation, because the General Assembly included the words “other concerted refusal to work,” it must have intended the law to apply to “picketing” and “striking” only when those actions were also concerted refusals to work. Because informational picketing is not a “concerted refusal to work,” the majority held that unions do not have to provide notice ten days before picketing.

The two concurring justices agreed with this result, but focused their attention on the word “any.” In their opinion, the words “any picketing” meant that unions had to provide notice ten days before any variety of picketing. The concurring justices noted, however, that requiring that notice was equivalent to telling the unions what they could and could not say for those ten days. The concurring justices reasoned that this was a violation of the Right to Free Speech guaranteed under the First Amendment, and that the law was therefore unconstitutional.  

For the labor professional in Ohio’s public sector, the ruling is a win for unions representing public employees. Among other things, public employers may find themselves confronting an informational picket designed to pressure management on a point in contention between it and a union. Without a ten day waiting period, management will have significantly less time to prepare for, and respond to, any such picketing. Thus, particularly when preparing for collective bargaining, management should plan ahead for how it will lawfully respond to any informational picketing that may occur.

For more on the arguments advanced by the parties in the case, watch the oral argument video.