Com. v. Noffke

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; QUIRICO
Citation379 N.E.2d 1086,376 Mass. 127
Parties, 99 L.R.R.M. (BNA) 2139 COMMONWEALTH v. Stephen H. NOFFKE.
Decision Date01 August 1978

Page 1086

379 N.E.2d 1086
376 Mass. 127, 99 L.R.R.M. (BNA) 2139
COMMONWEALTH

v.
Stephen H. NOFFKE.
Supreme Judicial Court of Massachusetts, Worcester.
Argued Feb. 6, 1978.
Decided Aug. 1, 1978.

Page 1087

[376 Mass. 128] Daniel F. Toomey, Asst. Dist. Atty., for the Commonwealth.

Stephen R. Domesick, Boston, for defendant.

Before [376 Mass. 127] HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

[376 Mass. 128] QUIRICO, Justice.

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 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. 1 On December 19, 1975, the union demanded recognition from Hubbard Regional Hospital (hospital) as the exclusive representative of certain of its employees. 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 [376 Mass. 129] 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. 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. 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.

Page 1088

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, --- Mass.App. --- A, 364 N.E.2d 1274 (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? (and) (2) Does federal law, namely appropriate sections of the National Labor Relations Act as interpreted by the federal courts, preempt the use [376 Mass. 130] 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, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) (Garmon ), the Supreme Court of the United States held that, subject to certain limited exceptions, 4 State court jurisdiction over conduct that is arguably protected under § 7 of the Act, 29 U.S.C. § 157 (1970), 5 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, 79 S.Ct. at 780. 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, 98 S.Ct. 1745, 56 L.Ed.2d 209 (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.

[376 Mass. 131] 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, 98 S.Ct. at 1749. 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...

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11 practice notes
  • Orell v. Umass Memorial Medical Center, Inc., No. Civ.A. 00-40227-NMG.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • April 29, 2002
    ...772 (1973); Bertulli v. First National Stores, Inc., 1979 WL 15347, 1979 U.S.Dist. LEXIS 9792, *5 (D.Mass.1979); Commonwealth v. Noffke, 376 Mass. 127, 134, 379 N.E.2d 1086 (1978). Defendants argue that plaintiff's claims must be dismissed because the First Amendment and Article XVI apply o......
  • SHAD Alliance v. Smith Haven Mall
    • United States
    • New York Court of Appeals
    • December 19, 1985
    ...1103; People v. Sterling, 52 Ill.2d 287, 287 N.E.2d 711; Commonwealth v. Hood, 389 Mass. 581, 452 N.E.2d 188; Commonwealth v. Noffke, 376 Mass. 127, 379 N.E.2d 1086; Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337; State v. Felmet, 302 N.C. 173, 273 S.E.2d 708; Lenrich As......
  • Roman v. Trustees of Tufts Coll., SJC–10822.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 21, 2012
    ...v. Allied Stores Int'l, Inc., 388 Mass. 83, 89 n. 8, 445 N.E.2d 590 (1983), S.C., 393 Mass. 319 (1985), quoting Commonwealth v. Noffke, 376 Mass. 127, 134, 379 N.E.2d 1086 (1978). Moreover, we have cited with approval cases in other jurisdictions where courts have concluded that their State......
  • Com. v. Hood
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 5, 1983
    ...McQueen [389 Mass. 585] v. Druker, 317 F.Supp. 1122, 1127 (D.Mass.1970), aff'd, 438 F.2d 781 (1st Cir.1971). In Commonwealth v. Noffke, 376 Mass. 127, 134, 379 N.E.2d 1086 (1978), we relied on Federal constitutional law in holding that arts. 16 and 19 did not protect the activities of a non......
  • Request a trial to view additional results
11 cases
  • Orell v. Umass Memorial Medical Center, Inc., No. Civ.A. 00-40227-NMG.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • April 29, 2002
    ...772 (1973); Bertulli v. First National Stores, Inc., 1979 WL 15347, 1979 U.S.Dist. LEXIS 9792, *5 (D.Mass.1979); Commonwealth v. Noffke, 376 Mass. 127, 134, 379 N.E.2d 1086 (1978). Defendants argue that plaintiff's claims must be dismissed because the First Amendment and Article XVI apply o......
  • SHAD Alliance v. Smith Haven Mall
    • United States
    • New York Court of Appeals
    • December 19, 1985
    ...1103; People v. Sterling, 52 Ill.2d 287, 287 N.E.2d 711; Commonwealth v. Hood, 389 Mass. 581, 452 N.E.2d 188; Commonwealth v. Noffke, 376 Mass. 127, 379 N.E.2d 1086; Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337; State v. Felmet, 302 N.C. 173, 273 S.E.2d 708; Lenrich As......
  • Roman v. Trustees of Tufts Coll., SJC–10822.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 21, 2012
    ...v. Allied Stores Int'l, Inc., 388 Mass. 83, 89 n. 8, 445 N.E.2d 590 (1983), S.C., 393 Mass. 319 (1985), quoting Commonwealth v. Noffke, 376 Mass. 127, 134, 379 N.E.2d 1086 (1978). Moreover, we have cited with approval cases in other jurisdictions where courts have concluded that their State......
  • Com. v. Hood
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 5, 1983
    ...McQueen [389 Mass. 585] v. Druker, 317 F.Supp. 1122, 1127 (D.Mass.1970), aff'd, 438 F.2d 781 (1st Cir.1971). In Commonwealth v. Noffke, 376 Mass. 127, 134, 379 N.E.2d 1086 (1978), we relied on Federal constitutional law in holding that arts. 16 and 19 did not protect the activities of a non......
  • Request a trial to view additional results

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