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07/08/77 COMMONWEALTH v. STEPHEN H. NOFFKE

July 8, 1977

COMMONWEALTH
v.
STEPHEN H. NOFFKE



Worcester. Complaint received and sworn to in the First District Court of Southern Worcester on May 25, 1976. Upon appeal to the Superior Court, questions of law were reported by Greaney, J.

Keville, Goodman, & Brown, JJ.

SYLLABUS BY THE COURT

Trespass. Jurisdiction, Federal preemption, Labor. Federal Question. Labor and Labor Unions.

The opinion of the court was delivered by: Brown

The preemption effect of certain sections of the National Labor Relations Act barred State prosecution for criminal trespass of a labor union organizer who was peacefully disseminating information to employees on the employer's property in anticipation of an election ordered by the National Labor Relations Board. [499-505]

The defendant was convicted in a District Court of criminal trespass under G. L. c. 266, § 120, as amended through St. 1974, c. 109. He appealed to the Superior Court for a trial de novo and filed a motion to dismiss the complaint on the ground that the preemptive effect of certain sections of the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq. (1970), causes Massachusetts courts to be without jurisdiction to hear the criminal accusation against him at this time. The defendant also moved to dismiss on the ground that G. L. c. 266, § 120, as applied to his activities, infringes upon his rights of free speech and assembly as guaranteed by the First and Fourteenth Amendments to the United States Constitution and by arts. 16 and 19 of the Massachusetts Declaration of Rights. After a hearing on the motion, a Superior Court Judge issued a memorandum of decision in which he concluded that neither the First and Fourteenth Amendments nor arts. 16 and 19 insulated the defendant from prosecution for criminal trespass. The Judge ruled, however, that the principles of preemption bar the Massachusetts courts from exercising criminal jurisdiction over the defendant. The order of dismissal was stayed, and the questions set out in the margin *fn1 have been reported for this court's determination pursuant to G. L. c. 278, § 30A.

We summarize the facts stipulated by the parties and those additional facts found by the Superior Court Judge. On December 19, 1975, District 1199 Mass. of the National Union of Hospital and Health Care Employees, RWDSU/AFL-CIO (union), demanded recognition from the Hubbard Regional Hospital (hospital) as exclusive representative of certain of its employees. In March and April, 1976, hearings were held before a hearing officer of the National Labor Relations Board (NLRB) upon a petition for an election filed by the union. The hearings resulted in an order by the NLRB directing an election to determine the representational desires of the hospital employees. The hospital is a private, voluntary, nonprofit Massachusetts corporation located in two buildings on 10.4 acres of land adjacent to Route 193 in Webster, Massachusetts. At no time relevant to the incidents which form the basis of this case was there a bargaining representative of any of the employees at the hospital.

At approximately 6:30 A.M. on May 25, 1976, two union organizers, the defendant and another, entered onto the paved parking area of the hospital. *fn2 At a distance of about thirty feet from the entrance to the hospital in a portion of the parking lot known as the "service area" the organizers spoke to an unspecified number of employees as they passed by on their way into the building. The service area was the best place for the defendant to be situated in order to reach the maximum number of employees. There are no patient beds near the service area, and visiting hours at the hospital are from 2:00 to 4:00 P.M. The nearest public area where the defendant could have proselytized in behalf of the union was about six hundred feet from the point where the incident occurred.

At approximately 6:45 A.M. Bernard Gagnon, administrator of the hospital, in the presence of two Webster police department officers, requested the organizers to leave. The defendant refused. The defendant then received an explanation of the trespass law from one of the officers present, again refused to leave upon the officers' request, and was placed under arrest.

The defendant's conduct was found by the trial Judge to be "non-violent in all respects." The Judge also stated in his memorandum of decision that "the hospital has not made any showing that the objective sought to be accomplished by the union organizer on their property could have been accomplished by alternative means." He added that there was also no "showing that any other method of reaching the employees was available."

I

A. The Superior Court Judge reported for our decision the question whether certain sections of the NLRA bar the use of G. L. c. 266, § 120, so as to prevent the State from prosecuting for trespass a labor union organizer disseminating information to employees on the employer's private property. In a recent decision the United States Supreme Court held that the doctrine of preemption in the labor law field was shaped by two basic competing interests. Farmer v. United Bhd. of Carpenters, Local 25, 430 U.S. 290, 295 (1977). The interest in having uniform application of the NLRA argues in favor of preemption of State laws that might conflict with broad Federal legislation. Id. However, the fact that Congress has not indicated the extent to which its action preempts State law supports the Conclusion that there are some areas in which Congress intended States to be free to act to protect local interests. Motor Coach Employees v. Lockridge, 403 U.S. 274, 289 (1971). Farmer v. United Bhd. of Carpenters, Local 25, 430 U.S. at 295-296.

The landmark case which has attempted to strike a balance between these competing interests is San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959). Garmon held that the preemption doctrine prevents State courts from enforcing a State law against an activity arguably protected by § 7 or prohibited by § 8 of the Act. Id. at 245. See Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev. 1337, 1348-1351 (1972). Section 7 of the Act provides, "Employees shall have the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ." 29 U.S.C. § 157 (1970). Section 8 defines activities which constitute unfair labor practices. 29 U.S.C. § 158 (1970), as amended by Act of July 26, 1974, Pub. L. No. 93-360, § 1 (c)-(e), 88 Stat. 395, 396. Mr. Justice Frankfurter, writing for the majority in Garmon, stated, "At times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. . . . When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." 359 U.S. at 244-245. Motor Coach Employees v. Lockridge, 403 U.S. at 276.

The Commonwealth concedes that the union organizational activity which took place in this case was "arguably subject to" the provisions of § 7 or § 8 of the NLRA. It argues, however, that this case falls within the exception to the Garmon doctrine which allows ...


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