Worcester. Complaint received and sworn to in the First District Court of Southern Worcester on May 25, 1976. On appeal to the Superior Court, questions of law were reported by Greaney, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Hennessey, C.j., Quirico, Kaplan, Wilkins, & Abrams, JJ.
Trespass. Jurisdiction, Federal preemption, Labor. Federal Question. Labor and Labor Unions.
The opinion of the court was delivered by: Quirico
Although a nonemployee's presence on an employer's premises for the purpose of solicting employees in the course of a union organization campaign was arguably protected by § 7 of the National Labor Relations Act, 29 U.S.C. § 157 (1970), the courts of the Commonwealth were not deprived of jurisdiction over a trespass action against the non-employee where the non-employee could have presented the dispute to the National Labor Relations Board but did not, where the employer had no right to bring the dispute before the board, and where the assumption of jurisdiction did not create an unacceptable risk of interference with conduct which the board would find protected. [130-134]
The guaranties of arts. 16 and 19 of the Massachusetts Declaration of Rights to free speech and the right to assemble did not extend to the conduct of a non-employee in trespassing on an employer's premises for the purpose of soliciting employees in the course of a union organization campaign. 
This case, here on report by a Judge of the Superior Court, pursuant to G. L. c. 278, § 30A, presents the question whether a State court may convict a defendant of trespass for his presence on an employer's premises when he is there as a non-employee soliciting employees in the course of a union organization campaign.
The defendant Stephen H. Noffke was employed by District 1199 Mass., National Union of Hospital and Health Care Employees, RWDSU/AFL-CIO (union), as a labor organizer. *fn1 On December 19, 1975, the union demanded recognition from Hubbard Regional Hospital (hospital) as the exclusive representative of certain of its employees. *fn2 Following the filing of a petition for election with the National Labor Relations Board (board) and the holding of several hearings thereon, the board, in May, 1976, issued a decision ordering an election.
At approximately 6:30 a.m. on May 25, 1976, the defendant and another person, both union organizers, entered onto the paved parking area of the hospital and, standing about thirty feet from an entrance, spoke to some of the employees as they passed by. Most employees parked their automobiles in the lot and, since they all entered through this entrance, the Superior Court Judge found that this spot was the most appropriate location for the defendant's purpose. *fn3 At about 6:45 a.m., the administrator of the hospital, accompanied by two police officers, requested that the defendant leave the premises. He refused. The officers then explained the trespass laws to the defendant, but he remained adamant in his refusal. He was then placed under arrest.
The defendant was tried and convicted in a District Court of trespass in violation of G. L. c. 266, § 120. He appealed to the Superior Court for a trial de novo. The defendant filed a motion to dismiss asserting that State court jurisdiction was preempted by the National Labor Relations Act (Act), 29 U.S.C. §§ 151-169 (1970 & Supp. V 1975), and that the conduct for which he was complained against was protected by the First Amendment to the Constitution of the United States and art. 16 of the Massachusetts Declaration of Rights. The Judge ruled that the complaint should be dismissed on the preemption ground. The Judge stayed his order, however, and reported the questions stated below. After review by the Appeals Court, 5 Mass. App. Ct. 496 (1977), we granted an application for further appellate review. G. L. c. 211A, § 11.
The questions reported are: "(1) Does either Article XVI or Article XIX of the Massachusetts Declaration of Rights prohibit the prosecution for trespass under G. L. c. 266, § 120 of a labor union organizer engaged in disseminating information to employees on private property on the facts set out here? (2) Does federal law, namely appropriate sections of the National Labor Relations Act as interpreted by the federal courts, preempt the use of G. L. c. 266, § 120 to prosecute a labor union organizer engaged in disseminating information to employees on private property for trespass?" We address first the preemption question.
1. In San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244-245 (1959) (Garmon), the Supreme Court of the United States held that, subject to certain limited exceptions, *fn4 State court jurisdiction over conduct that is arguably protected under § 7 of the Act, 29 U.S.C. § 157 (1970), *fn5 is preempted, with jurisdiction resting exclusively, in the first instance, with the 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 245. On the basis of the Garmon case both the Superior Court and the Appeals Court held that the criminal trespass action challenged here must be dismissed. Since they so decided, however, the Supreme Court in Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180 (1978) (Sears), has narrowed the scope of the preemption doctrine set out in the Garmon case. We now examine the effect of the Sears decision on this case.
The Sears case considered the question "whether the National Labor Relations Act, as amended, deprives a state court of the power to entertain an action by an employer to enforce state trespass laws against picketing which is arguably -- but not definitely -- prohibited or protected by federal law." Id. at 182. In Sears, the union had established picket lines on privately owned walkways and parking areas surrounding a Sears department store because the store was using nonunion men for certain carpentry work. The picketing was peaceful and orderly. A demand was made by the security manager of Sears that the pickets leave the store's property and move to adjacent public sidewalks. The union refused, stating that the pickets would remain until forced to leave by legal action. Sears then obtained an order from a California State court enjoining the picketing on the store's property. On appeal, the California Supreme Court reversed the injunction order on the ground that State court jurisdiction over the trespassory activity was preempted under the doctrine established in the Garmon case. 17 Cal. 3d 893, 906-907 (1976).
The United States Supreme Court reversed. It stated that "the mere fact that the Union's trespass was arguably protected [under § 7 of the Act] is insufficient to deprive the state court of jurisdiction in this case." Id. at 200. *fn6 Specifically, the Court held that the arguably protected character of a union's trespassory conduct did not preempt State court jurisdiction where (1) one party to the dispute over the conduct could have presented it to the board but did not, (2) the other party to the dispute had no acceptable means of bringing it before the board, and (3) there was not an unacceptable risk of interference with conduct that the board would conclude was protected. The Court reasoned that, absent strong considerations to the contrary, a State court should not be deprived of jurisdiction over an action that provides the only opportunity for an aggrieved party to obtain an orderly resolution of a dispute. The sole consideration that the Court indicated was sufficiently strong to produce such a deprivation was the danger of State interference with federally protected conduct. The Court states that, where there is no other means for peaceful resolution of the controversy, a State court should have jurisdiction unless that jurisdiction would "create an unacceptable ...