Ohio

A recent opinion of the Ohio Appeals Court dealt a victory to picketing public employees when it found the state’s decades-old law regulating strikes and picketing by public employees unconstitutional as an impermissible restriction on free speech. The Ohio statute at issue was part of the state’s act governing bargaining rights of public employees and included a provision making it an unfair labor practice for a public employee labor organization to “engage in any picketing, striking, or other concerted refusal to work without giving written notice to the public employer and to the state employment relations board not less than ten days prior to the action.”

The union representing employees of Mahoning County Board of Developmental Disabilities was found to have violated the statute after picketing a Board meeting without notice. The union challenged the law on constitutional grounds, claiming that the restrictions on picketing violated public employees’ First Amendment rights to free speech.  After an Ohio trial court upheld the law, the Ohio Appeals Court reversed, finding that the law should be classified as a “disfavored speaker” law because it restricted only public employees from picketing without notice and not any other class of citizens.  Because of this, the law was to be analyzed under a strict scrutiny standard. The state had argued that the statute should be seen as a “content-neutral” regulation, imposing reasonable restrictions on the time, place, and manner of speech, which would have been analyzed under the more favorable intermediate scrutiny standard.

After applying the strict scrutiny standard, the Appeals Court found that the law was not justified by a compelling state interest and was not narrowly tailored, therefore it was unconstitutional.  It remains to be seen whether the State Employee Relations Board will continue to enforce the notice provision now that it has been found unconstitutional or whether this decision will be appealed to the Ohio Supreme Court.

The case is Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd., No. 11 MA 52 (Ohio Ct. App. June 28, 2012). The full opinion can be found online here.

We're hearing reports that many unions are approaching employers in the wake of Indiana's new Right-to-Work Act to see if the employers are willing to sign early before the March 14 deadline. Remember that the Act provides that if employers are in collective bargaining agreements as of March 14, 2012 that have a union security clause, then employees will be stuck paying dues at least until the expiration date of that CBA.   We've already heard reports that the Carpenters and the Sheet Metal Workers are circulating 10-year extension agreements hoping to get employers to sign on before March 14. Have you been approached by your Union for an early signing? Let us know if you have, which Union approached you and how long is the sought-for extension. You can leave a comment below.

Another impact is that the interest in RTW may be spreading. Earlier this week, Quinnipiac University released the results of a poll of Ohio voters and discovered that Ohio voters by a 54-40 percent margin favor the notion that Ohio should become the next Right-to-Work state. Here's a link to the poll results.

That's surprising to some because Ohio voters had soundly rejected the Ohio initiative to strip Ohio public workers of their unions. Given the assumption that the SB 5 referendum was a demonstration of union strength in Ohio, the 54-40 percent support for making Ohio a 'right-to-work' state does make one take notice," said Peter A. Brown, assistant director of the Quinnipiac University Polling Institute. "In the SB 5 referendum independent voters, who are generally the key to Ohio elections, voted with the pro-union folks to repeal the law many viewed as an effort to handicap unions. The data indicates that many of those same independents who stood up for unions this past November on SB 5 are standing up to unions by backing 'right-to-work' legislation.

Poll results have made headlines all over the state of Ohio.

Cincinnati.com - "Poll: Ohioans support 'Right to Work'" 

Dayton Daily News - "Ohio voters support right-to-work, poll says" 

Columbus Dispatch - "Ohioans like 'right-to-work' idea, poll says"

The same day Indiana's Governor Mitch Daniels signed into law the bill making Indiana a right-to-work state (previous coverage on this subject can be found here), Ohio Attorney General Mike DeWine certified the petition submitted by The 1851 Center for Constitutional Law as “containing both the necessary 1,000 valid signatures from registered Ohio voters and a ‘fair and truthful’ summary of the proposed amendment.” The petition seeks to amend the Ohio Constitution to prohibit any law, rule, agreement, or arrangement that requires, directly or indirectly, “any person or employer to become or remain a member of a labor organization . . . [or]as a condition of employment, any person or employer to pay or transfer any dues, fees, assessments, other charges of any kind, or anything else of value, to a labor organization, or third party in lieu of the labor organization.”

Dewine's certification is only one major step in the process for getting the ballot measure on the November 2012 ballot. The petitioning group must still overcome a various hurdles to put the constitutional amendment before the people of Ohio, including gathering over 300,000 valid signatures.