Jones v. Demoulas Super Markets, Inc.

• Citation: 308 N.E.2d 512,364 Mass. 726
• Parties: , 85 L.R.R.M. (BNA) 2681, 73 Lab.Cas. P 53,270 Nicholas JONES et al. v. DEMOULAS SUPER MARKETS, INC. Nicholas JONES et al. v. DSM REALTY, INC., et al.
• Decision Date: 07 March 1974
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 512

308 N.E.2d 512

364 Mass. 726, 85 L.R.R.M. (BNA) 2681,

73 Lab.Cas. P 53,270

Nicholas JONES et al. v. DEMOULAS SUPER MARKETS, INC.

Nicholas JONES et al. v. DSM REALTY, INC., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 8, 1973.

Decided March 7, 1974.

Robert H. Goldman, Lowell (James T. Curtis, Cornelia C. Adams, Lowell and Franklin L. Bridges, III, Needham, with him), for defendants.

Alan Rader (Alfred H. Sigman, San Francisco, Cal. and Nathan S. Paven, Boston, with him), for plaintiffs.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

KAPLAN, Justice.

The main question to be answered is whether interlocutory decrees granting preliminary injunctions against a labor union and its sympathizers were or were not invalid for failure to comply with the procedural requirements of our labor statutes, notably our statute deriving from the familiar Federal Norris-LaGuardia Act.

Two verified bills of complaint were filed in the Superior Court, Middlesex County, one bill by Demoulas Super Markets, Inc., which leases and operates thirteen retail food supermarkets in the northeasterly part of the State, the other bill by DSM Realty, Inc., and an individual, Demoulas, as trustee of certain realty trusts, owners of the shopping centers in which ten of the supermarkets are located. Both bills named as defendants three individuals as representatives of a class consisting of officers, members, and adherents of the United Farm Workers Union, AFL-CIO (UFW).

These supermarkets sell at retail fresh lettuce and grapes; the items are two among thousands of items sold, and constitute but a very small part of total sales. The 'head' or 'iceberg' lettuce and table grapes offered for sale are grown or produced in California by firms employing agricultural workers who are either nonunion or are members of a union rival of UFW. UFW has struck these employers in a long-continued effort to unionize them and to cause them to deal and contract with UFW as bargaining representative of the workers. ¹

The gravamen of the bills of complaint is that UFW has engaged in picketing the

REPORTER'S NOTE: In these opinions, the respective terms 'plaintiff' or 'plaintiffs' and 'defendants' refer to the parties in the Superior Court litigation.

supermarkets and distributing handbills there with the object of inducing customers and prospective customers to stop patronizing these stores ² because they trade in the lettuce and grapes produced by firms employing non-UFW field hands and refusing to recognize or bargain with UFW. Picketing and distribution of handbills allegedly have taken place within the shopping centers at the entrances to the supermarkets and in the parking areas which surround the stores. The bills complain of harassment of customers and of roaming and littering of the parking areas which may increase driving hazards (there is no charge, however, of outright violence by (UFW). The bills complain also of alleged fraud in misstatements contained in UFW's propaganda, such as that the supermarkets are 'scab' or 'nonunion.' In particular instances, managers of the supermarkets have called on the police to arrest picketers or handbill distributors for trespass on private property, but no arrests have been made either because the police have failed to respond or, perhaps, because the demonstrators have moved off the grounds and onto public ways when the police arrived.

There is reference in the bills to a meeting in June, 1973, between representatives of the plaintiffs and of UFW in which UFW stated its demand that the supermarkets cease to trade in the non-UFW produce. In refusing to accede and declaring their intention to continue to buy from growers and wholesalers with whom they had previously dealt, the supermarkets said that they were prepared to buy UFW produce so far as available to them, but were unwilling to undertake to confine themselves to that produce exclusively. In this connection, the supermarkets point out, particularly with regard to lettuce, that certain of their competitors who earlier acceded to UFW's demands were in effect largely preempting the UFW produce coming into the local areas, so that the plaintiff supermarkets could at best cover only a fraction of their needs if they limited themselves to UFW produce. UFW has not accepted this explanation. Picketing began on a considerable scale later in June. It is alleged that the supermarket managers have proposed that UFW comply with rules and regulations for demonstrations at the shopping centers acceptable to the owners and lessees, but UFW has refused.

The bills state that the true dispute is between UFW and the California growers and producers, and characterize UFW's activities at the supermarket locations as constituting an illegal secondary boycott. Alleging that the picketing has discouraged customers and caused a decline of sales--losses of business which bear also on the plaintiff realty owners because rents are related to the earnings of the supermarkets--and alleging further that they had no adequate remedy at law, the plaintiffs demanded temporary restraining orders, preliminary injunctions, and final decrees to halt UFW's picketing and handbill distribution and other conduct at the supermarkets; the plaintiffs also demanded damages.

On the verified bills, filed on July 20, 1973, counsel on both sides were heard on July 24, 1973. ³ The plaintiffs did not file any affidavits in support of the bills, nor were any filed in opposition, nor were any witnesses called. On August 1, 1973, the judge, without making any findings, entered a preliminary injunction in each case which effectively prohibits all picketing and similar activities by UFW within the shopping centers. ⁴ The defendants filed claims of appeal and applied by verified petition to a single justice of this court pursuant to G.L. c. 214, § 22, for annulment or modification of the injunctions pending appeal. Under G.L. c. 211, § 4A, and Appeals Court Rule 2:01, 1 Mass.App.Ct., the single justice transferred the cause to the Appeals Court where it was heard by a single justice of that court. In an order dated September 14, 1973, accompanied by an opinion, that single justice annulled the preliminary injunctions, holding that the judge of the Superior Court was without jurisdiction to grant them. The single justice also commented in his opinion on the substantial merits of the cases as they appeared from the bills and the petition to annual or modify the preliminary injunctions. From the order of annulment the defendants took their appeal to the bench of the Appeals Court. The appeal is before this court on certificate of all the justices of the Appeals Court pursuant to G.L. c. 211A, § 10, that such direct review is in the public interest. As the order of annulment entered by the single justice of the Appeals Court was stayed by him pending final determination of the appeal therefrom, the preliminary injunctions have remained in effect.

General Laws c. 214, § 9A(1), provides, in part, that 'No court shall have jurisdiction to issue a preliminary or permanent injunction in any case involving or growing out of a labor dispute' as defined in c. 149, § 20C, unless certain procedural safeguards are afforded and unlawful acts are found to have been committed or threatened; § 20C, besides defining the terms, indicates what is a lawful and unlawful labor dispute and an unlawful secondary boycott.

There is agreement that if the present cases ⁵ were within § 9A(1), then the judge of the Superior Court was without 'jurisdiction' to enter the injunctions, ⁶ since the stated procedural prerequisites were not fulfilled. The requirements in question are intended to deter a court from 'shooting from the hip' and to encourage it to be deliberate and conservative in granting injunctive relief. The reason for the categorical legislative denial to the courts of jurisdiction to issue injunctions in labor dispute cases unless prescribed procedures are followed, is too much a matter of well ploughed history to be set forth here, see Frankfurter and Greene, The Labor Injunction (1930), and we have only to observe that a number of the procedural safeguards called for by statute hark back to the traditionally cautious equity practice. With some special provisions for situations where temporary restraining orders are sought, an injunction can be granted only after hearing the testimony of witnesses in open court in support of a verified petition, with opportunity for cross-examination, and only on findings of fact by the court that unlawful acts are threatened or have been committed and will be committed or continued unless restrained; that substantial and irreparable injury to the plaintiff's property will follow; and that, as to each item of relief granted, greater injury will be inflicted on the plaintiff by denying relief than will be inflicted on the defendant by granting it. G.L. c. 214, § 9A(1)(b) and (c). ⁷ Moreover, a single judge cannot act; rather it is provided by legislation of 1959 that a three-judge court must be convened. G.L. c. 212, § 30.

In our opinion the present cases fall within the statutory definitions attracting all the procedural restrictions described above, and the order of annulment was therefore correct. Reverting to the words 'case involving or growing out of a labor dispute,' ⁸ we seek the meaning of 'labor dispute' in § 20C(c), where it is defined to '(include) any controversy arising out of any demand of any character whatsoever concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating . . . or seeking to arrange, terms or conditions of employment, regardless of whether the disputants stand in proximate relation of employer and employee.' In the present cases we find a controversy between disputants--the plaintiffs and the defendants--who do not, to be...