COMMONWEALTH vs. STEPHEN H. NOFFKE.

QUIRICO, J. This case, here on report by a judge of the Superior Court, pursuant to G. L. c. 278, Section 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 nonemployee 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. [Note 1] On December 19, 1975, the union demanded recognition from Hubbard Regional Hospital (hospital) as the exclusive representative of certain of its employees. [Note 2] 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

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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. [Note 3] 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 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, Section 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. Sections 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, Section 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, Section 120 of a labor union organizer engaged in disseminating information to employees on private property on the facts set out here? [and] (2) Does federal law, namely appropriate sections of the National Labor Relations Act as interpreted by the federal courts, preempt the use

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of G. L. c. 266, Section 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, [Note 4] State court jurisdiction over conduct that is arguably protected under Section 7 of the Act, 29 U.S.C. Section 157 (1970), [Note 5] is preempted, with jurisdiction resting exclusively, in the first instance, with the board. "When an activity is arguably subject to Section 7 or Section 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.

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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 Section 7 of the Act] is insufficient to deprive the state court of jurisdiction in this case." Id. at 200. [Note 6] 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

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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 risk of interference with conduct which the Board, and a court reviewing the Board's decision, would find protected." Id. at 205. The deprivation of State court jurisdiction thus is, in part, a function of the strength of the claim that the activity that is the subject of the suit is in fact protected under Section 7 of the Act.

Applying the principles of the Sears decision, we conclude that the Act does not deprive a State court of jurisdiction in the circumstances of the case before us. Clearly, the defendant's conduct is arguably protected by Section 7 of the Act, neither party contending otherwise. The hospital's demand to the defendant that he leave the premises provided him with a basis for bringing the dispute before the board, see Sears, supra at 207 n.44. However, he chose not to do so. [Note 7] The hospital itself had no right to present the case to the board since organizational solicitation on an employer's premises by non-employees is not within

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the proscriptions of the Act. See 29 U.S.C. Section 158 (1970 & Supp. V 1975). Therefore, the only opportunity for the peaceful resolution of the dispute, absent an action in a State court, was rejected by the defendant who was the only party to whom it was available. As a result the hospital, which was the aggrieved party, was left with a choice between self-help or acquiescence in the trespass. See Sears at 207.

In such a circumstance preemption is not justified so long as the State court action "does not create an unacceptable risk of interference with conduct which the Board ... would find protected." Sears, supra at 205. This risk is not present here. In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956), the Court recognized that generally an employer may prohibit nonemployees from union solicitation on his premises. In certain circumstances, of course, specifically "when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels," this right to bar the organizers must yield. Id. Nevertheless, in a proceeding before the board, the burden of proving the existence of such an exception lies with the union, [Note 8] and the general rule remains that an employer has the right of exclusion. Sears, supra at 205. See also Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978). Since, then, it is more likely that employers' exclusions of alleged trespassers will be upheld by the board than the contrary, State courts may be permitted "to evaluate the merits of an argument that certain trespassory activity is protected." Sears, supra at 205. The assumption by a State court of jurisdiction over the conduct of the defendant here, which is within the category of trespassory activity referred to in Sears, does not, therefore, create a

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risk of interference with federally protected activity which is sufficiently high to justify preempting the only alternative for peaceful resolution of the dispute.

We therefore hold that, under the guidelines set out in Sears, the courts of the Commonwealth are not deprived of jurisdiction over the trespass action here. See People v. Bush, 39 N.Y.2d 529, 535-538 (1976); People v. Goduto, 21 Ill. 2d 605, 607-614, cert. denied, 368 U.S. 927 (1961).

2. The defendant's second defense, that his solicitation activity on the employer's property was protected by arts. 16 and 19 of the Declaration of Rights, the free speech and right to assemble provisions, respectively, is easily disposed of. In Hudgens v. NLRB, 424 U.S. 507, 520-521 (1976), the Supreme Court held that, because of the absence of State action, the First Amendment did not protect labor picketing that took place within a privately owned shopping center. We see no distinction between labor picketing and labor organization solicitation, both taking place on private property, such as would require a different result. And, at least in this context, the protections of arts. 16 and 19 extend no further than the comparable provisions of the First Amendment. See First Nat'l Bank v. Attorney Gen., 362 Mass. 570, 586 (1972) (Tauro, C.J., and Reardon, J., concurring); Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 249 (1946). Articles 16 and 19 protect the rights of free speech and assembly from abridgement by the government. Therefore guaranties of those articles do not extend to the conduct here which occurred on the property of a private employer.

3. In answer to the questions reported, we hold that the criminal prosecution in the present case is not barred by arts. 16 and 19, nor is the jurisdiction of the courts of the Commonwealth preempted by the National Labor Relations Act. Therefore the order allowing the motion to dismiss is reversed, and the case is remanded for further proceedings in the Superior Court Department.

So ordered.