On October 23, 2013, the Ohio Supreme Court ruled, in Mahoning Education Association of Developmental Disabilities v. State Employment Relations Board, that unions are not required to provide public sector employers ten-day advance notice of informational picketing under Ohio Revised Code 4117.11(B)(8). Ohio R.C. 4117.11(B)(8) states that it is an unfair labor practice for a public sector employee organization to "engage in any picketing, striking, or other concerted refusal to work without giving written notice...." The Ohio Supreme Court decided that the statute applies only to picketing related to a work stoppage, strike, or other concerted refusal to work.
In this case, during contract negotiations between a public employer and its employees' union, the union picketed peacefully outside a building immediately prior to the employer's board meeting. The union was "engaged in picketing related to the successor contract negotiations," expressing its desire for a fair contract and displeasure with the progress of negotiations. Picket signs included messages such as "Settle Now" and "[The Union] Deserves A Fair Contract." There was no strike or notice of intent to strike or engage in any other work stoppage. The union did not submit a ten-day notice of intent to picket to Ohio's State Employment Relations Board (SERB) or the employer prior to picketing.
The employer filed an unfair labor practice charge with SERB alleging that the union violated the notice requirement of R.C. 4117.11(B)(8). SERB found that the Union committed an unfair labor practice by failing to give the requisite notice before picketing, a finding that was appealed and eventually made its way before the Ohio Supreme Court.
In holding that the union did not commit an unfair labor practice because the statute does not apply to informational labor picketing, the Court focused on the word "picketing" and said it must be read in the context of the phrase "picketing, striking, or other concerted refusal to work." The Court held that the phrase "and other concerted refusal to work" would not be used in the statute unless "picketing" and "striking" are also concerted refusals to work. The Court, therefore, concluded that the legislature intended the notice requirement to apply only to a specific type of picketing -- namely, picketing related to work stoppage. Consequently, the Court held the statute's notice requirement does not apply to informational picketing.
The Mahoning decision has significant implications for public employers. While all employers should have a contingency plan for unanticipated service interruptions, Ohio's public employers will no longer have the benefit of a ten-day notice period to plan for informational picketing. Public employers should therefore develop a contingency plan that details how they will respond if their employees' unions engage in unannounced informational picketing.
The most essential component of a public employer's contingency plan is a clear, efficient procedure for disseminating information to the public it serves. A strong contingency plan will also contain procedures for alerting authorities, providing a safe work environment, assessing and filling potential staffing needs, and communicating with contractors and subcontractors. Creating and maintaining records of service providers that will not cross a picket line, as well as potential alternative providers that could fill in gaps on a short-term basis and with little advance notice, is also important.
