Jack Holt, Jr., Chief Justice.
This interlocutory appeal arises from a labor dispute involving appellant Amalgamated Clothing and Textile Workers International Union, an unincorporated association, and appellee Earle Industries, Inc., a corporation engaged in the manufacture of clothes hangers and garment bags.
Amalgamated raises two arguments on appeal, contending that the chancery court erred in denying (1) the union’s motion to dismiss Earle Industries’ complaint for failure to state facts upon which relief might be granted and (2) the union’s alternative motion for summary judgment while granting Earle Industries’ motion for a temporary restraining order. In support of these arguments, various sub-points have been presented, which focus on the conflicts in testimony concerning allegations of harm, the adequacy of other legal remedies, and the injuries to the union and the public interest.
It should be noted at the outset that Amalgamated’s first point on appeal, relating to the denial of the motion to dismiss, cannot be considered by this court because it is couched in terms of an appeal of the denial of a motion to dismiss. The union’s motion was based on Ark. R. Civ. P. 12(b)(6), which allows the defense of “failure to state facts upon which relief can be granted.” However, Rule 12(b) also provides that:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
(Emphasis added.) Perusal of the record reflects that matters presented to the court outside the pleadings consisted of videotapes of newscast coverage and security surveillance of the picketing on September 14, 1993, the texts of various appellate decisions, and the testimony of various witnesses.
Unquestionably, the motion to dismiss was effectively converted, under our rules of civil procedure, to one for summary judgment, and its denial is not subject to review on appeal. Daniels v. Colonial Ins. Co., 314 Ark. 39, 857 S.W.2d 162 (1993). In his order granting a temporary restraining order, the chancellor specifically noted that “[a]t the hearings, both parties were given the opportunity to present evidence” and that the decisions to issue an order and to deny the motions to dismiss and for summary judgment were “[b]ased on the evidence adduced at the hearing, the arguments of counsel, and the record as a whole.” In Eldridge v. Board of Correction, 298 Ark. 467, 768 S.W.2d 534 (1989), we reviewed a case involving a motion to dismiss as if it were an appeal following summary judgment where the chancellor had recited in his order that he had considered the “motions, the responses thereto, as well as the pleadings, briefs, exhibits attached thereto, and other matters.”
Similarly, the portion of the second point on appeal relating to the chancellor’s denial of the union’s motion for summary judgment must also be disregarded. As we have repeatedly held, the denial of a motion for summary judgment is neither reviewable nor appealable. Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162. What remains for us to consider, then, is a single issue: Amalgamated’s appeal from the chancery court’s granting of Earle Industries’ motion for a temporary restraining order. Another item, however, should be briefly addressed before we proceed to the merits of this issue.
The union contends, in its reply brief, that Earle Industries’ brief should be stricken for failure to comply with the requirement of Ark. Sup. Ct. R. 4-4(b). That rule states that “[b]riefs tendered to the Clerk will not be filed unless evidence of service upon opposing counsel and the trial court has been furnished to the Clerk.” The certificate of service contained in Earle Industries’ brief does not recite that a copy was sent to the trial court. No penalty is provided in the rules of the court for such an oversight, and the Clerk appeared to have been satisfied with the status of the brief when it was submitted. Thus, we see no prejudice in the Clerk permitting Earle Industries’ brief to be filed.
Facts
On September 14, 1993, members and supporters of Amalgamated gathered at the high school in Earle, Arkansas, for a rally. The Reverend Jesse Jackson delivered a speech, after which approximately sixty to seventy-five persons,1 carrying banners, marched down U.S. Highway 64 to Earle Industries’ factory.
Law enforcement officials accompanied the group to ensure traffic control. When the marchers arrived at the manufacturing plant, they congregated at the main entrance, and the Reverend Jackson spoke with the personnel manager, Gary Smith, asking to see Peter Felsenthal, Earle Industries’ senior vice president. Meanwhile, Melvin Luebke, a union activist, was arrested by the Earle Police Department on charges of criminal mischief and criminal trespass after he cut the lock and chain on the factory’s back gate.
The demonstrators remained in front of the plant’s main entrance during the employee lunch period for about forty or forty-five minutes, picketing, singing, chanting, and listening to a speech by the Reverend Jackson. Plant employees taking their lunch breaks were allowed to join the union supporters. The front gate was closed for the duration of the protest, and traffic was impeded on U. S. Highway 64. About fifty protesters sat down in the middle of the highway, and a number of them parked their vehicles on the side of the highway. All but one of the demonstrators, Steve Klawan, who was arrested, eventually moved out of the highway. Some vehicles remained on the roadside and they were towed. Two more union supporters, Kathleen Lee and Edna Mae Byars, were arrested for obstructing traffic by parking their cars on the highway, bringing to a total of four the number of protesters who were taken into custody. All four pled guilty and were released after a union representative paid their fines. Less than an hour after the protesters arrived, they dispersed.
On September 21, 1993, Earle Industries filed a complaint for injunctive relief against the union in the Chancery Court of Crittenden County, alleging that the “mass picketing” that occurred the previous week and the “threat of additional mass picketing” posed an “imminent threat of danger to the public safety and to the Plaintiff’s business interests and employees, as well as a threat to Plaintiff’s property interests. . ..” Continued mass picketing, the complaint alleged, would result in “irreparable harm” to Earle Industries and its employees and would imperil the public safety “since the marching and parading of a large number of people would again block ingress and egress to the main employee entrance to Plaintiff’s Plant and block Highway 64[,] which is a major public thoroughfare.”
Asserting the lack of an adequate remedy at law, Earle Industries requested a temporary restraining order:
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Jack Holt, Jr., Chief Justice.
This interlocutory appeal arises from a labor dispute involving appellant Amalgamated Clothing and Textile Workers International Union, an unincorporated association, and appellee Earle Industries, Inc., a corporation engaged in the manufacture of clothes hangers and garment bags.
Amalgamated raises two arguments on appeal, contending that the chancery court erred in denying (1) the union’s motion to dismiss Earle Industries’ complaint for failure to state facts upon which relief might be granted and (2) the union’s alternative motion for summary judgment while granting Earle Industries’ motion for a temporary restraining order. In support of these arguments, various sub-points have been presented, which focus on the conflicts in testimony concerning allegations of harm, the adequacy of other legal remedies, and the injuries to the union and the public interest.
It should be noted at the outset that Amalgamated’s first point on appeal, relating to the denial of the motion to dismiss, cannot be considered by this court because it is couched in terms of an appeal of the denial of a motion to dismiss. The union’s motion was based on Ark. R. Civ. P. 12(b)(6), which allows the defense of “failure to state facts upon which relief can be granted.” However, Rule 12(b) also provides that:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
(Emphasis added.) Perusal of the record reflects that matters presented to the court outside the pleadings consisted of videotapes of newscast coverage and security surveillance of the picketing on September 14, 1993, the texts of various appellate decisions, and the testimony of various witnesses.
Unquestionably, the motion to dismiss was effectively converted, under our rules of civil procedure, to one for summary judgment, and its denial is not subject to review on appeal. Daniels v. Colonial Ins. Co., 314 Ark. 39, 857 S.W.2d 162 (1993). In his order granting a temporary restraining order, the chancellor specifically noted that “[a]t the hearings, both parties were given the opportunity to present evidence” and that the decisions to issue an order and to deny the motions to dismiss and for summary judgment were “[b]ased on the evidence adduced at the hearing, the arguments of counsel, and the record as a whole.” In Eldridge v. Board of Correction, 298 Ark. 467, 768 S.W.2d 534 (1989), we reviewed a case involving a motion to dismiss as if it were an appeal following summary judgment where the chancellor had recited in his order that he had considered the “motions, the responses thereto, as well as the pleadings, briefs, exhibits attached thereto, and other matters.”
Similarly, the portion of the second point on appeal relating to the chancellor’s denial of the union’s motion for summary judgment must also be disregarded. As we have repeatedly held, the denial of a motion for summary judgment is neither reviewable nor appealable. Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162. What remains for us to consider, then, is a single issue: Amalgamated’s appeal from the chancery court’s granting of Earle Industries’ motion for a temporary restraining order. Another item, however, should be briefly addressed before we proceed to the merits of this issue.
The union contends, in its reply brief, that Earle Industries’ brief should be stricken for failure to comply with the requirement of Ark. Sup. Ct. R. 4-4(b). That rule states that “[b]riefs tendered to the Clerk will not be filed unless evidence of service upon opposing counsel and the trial court has been furnished to the Clerk.” The certificate of service contained in Earle Industries’ brief does not recite that a copy was sent to the trial court. No penalty is provided in the rules of the court for such an oversight, and the Clerk appeared to have been satisfied with the status of the brief when it was submitted. Thus, we see no prejudice in the Clerk permitting Earle Industries’ brief to be filed.
Facts
On September 14, 1993, members and supporters of Amalgamated gathered at the high school in Earle, Arkansas, for a rally. The Reverend Jesse Jackson delivered a speech, after which approximately sixty to seventy-five persons,1 carrying banners, marched down U.S. Highway 64 to Earle Industries’ factory.
Law enforcement officials accompanied the group to ensure traffic control. When the marchers arrived at the manufacturing plant, they congregated at the main entrance, and the Reverend Jackson spoke with the personnel manager, Gary Smith, asking to see Peter Felsenthal, Earle Industries’ senior vice president. Meanwhile, Melvin Luebke, a union activist, was arrested by the Earle Police Department on charges of criminal mischief and criminal trespass after he cut the lock and chain on the factory’s back gate.
The demonstrators remained in front of the plant’s main entrance during the employee lunch period for about forty or forty-five minutes, picketing, singing, chanting, and listening to a speech by the Reverend Jackson. Plant employees taking their lunch breaks were allowed to join the union supporters. The front gate was closed for the duration of the protest, and traffic was impeded on U. S. Highway 64. About fifty protesters sat down in the middle of the highway, and a number of them parked their vehicles on the side of the highway. All but one of the demonstrators, Steve Klawan, who was arrested, eventually moved out of the highway. Some vehicles remained on the roadside and they were towed. Two more union supporters, Kathleen Lee and Edna Mae Byars, were arrested for obstructing traffic by parking their cars on the highway, bringing to a total of four the number of protesters who were taken into custody. All four pled guilty and were released after a union representative paid their fines. Less than an hour after the protesters arrived, they dispersed.
On September 21, 1993, Earle Industries filed a complaint for injunctive relief against the union in the Chancery Court of Crittenden County, alleging that the “mass picketing” that occurred the previous week and the “threat of additional mass picketing” posed an “imminent threat of danger to the public safety and to the Plaintiff’s business interests and employees, as well as a threat to Plaintiff’s property interests. . ..” Continued mass picketing, the complaint alleged, would result in “irreparable harm” to Earle Industries and its employees and would imperil the public safety “since the marching and parading of a large number of people would again block ingress and egress to the main employee entrance to Plaintiff’s Plant and block Highway 64[,] which is a major public thoroughfare.”
Asserting the lack of an adequate remedy at law, Earle Industries requested a temporary restraining order:
to restrain the Defendants, and those acting by, through, and in concert with them, from using or employing mass pickets in the act of picketing on Highway 64 or within a 50-foot radius of the fence surrounding Plaintiff’s Plant; congregating, patrolling, walking, or sitting in parked cars within 50 feet of the fenced area immediately surrounding Plaintiff’s Plant in Earle, Crittend[e]n County, Arkansas!,] or to interfere in any ma[nn]er, with the peaceful ingress and egress to and from Plaintiff’s Plant or Highway 64 surrounding Plaintiff’s Plant in Earle, Crittend[e]n County, Arkansas. Plaintiff also requests that this court enjoin Defendants and those acting on their behalf from employing more than three pickets in the area described herein. Plaintiff also requests that this court issue a Preliminary Injunction, and, following a trial in this matter, a permanent injunction.
A hearing was held on September 22, 1993, and testimony was delivered, and exhibits, including videotapes of both area news coverage and factory security surveillance of the incident, were received by the chancellor. Another hearing was held on September 29, 1993, and additional evidence was presented.
Prior to the beginning of the second hearing, Earle Industries filed a brief in support of its motions for a temporary restraining order and preliminary injunction. Simultaneously, Amalgamated filed a motion to dismiss and an alternative motion for summary judgment, asserting the allegations in the complaint were unsupported by “specific factual statements” and that adequate legal remedies were available for any future harm.
Following the September 29, 1993 hearing, the chancellor took the matter under advisement. On November 18, 1993, the chancery court issued an order granting to Earle Industries a temporary restraining order and denying the union’s motions to dismiss and for summary judgment. The order stated, in part:
The Court finds that Defendants’ action in (1) cutting the lock and chain on Plaintiff’s gate; (2) blocking traffic on that portion of Highway 64 in front of Plaintiff’s business; and (3) blocking Plaintiff’s right of ingress and egress to one of its drives, are actions that should be restrained and enjoined.
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IT IS . . . HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant ACTWU, Southwest Regional Joint Board, Local 828, their officials, and others cooperating with them are RESTRAINED AND ENJOINED from:
(1) blocking or obstructing, or attempting to obstruct, the free use of the streets and highways adjacent to Plaintiff Earle Industries’ place of business, as well as passageways into and out of said business;
(2) going on Plaintiff’s place of business, unless invited by Plaintiff, and
(3) cutting or damaging Plaintiff’s property.
The union then filed this interlocutory appeal.
Temporary restraining order
As noted earlier, Amalgamated’s first point for reversal amounts to an appeal from a denial of a motion for summary judgment and is not subject to review on appeal. Moreover, as indicated above, part of the union’s second point for reversal is framed in terms of an appeal from the chancellor’s denial of the defense motion for summary judgment in its favor and is not appealable. See Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162.
In the remaining portion of its second point on appeal, the union urges that the chancery court erred in granting Earle Industries’ motion for a temporary restraining order, the sole issue we may consider and to which we now turn.
In granting or refusing interlocutory injunctions, the trial court shall set forth the findings of fact and conclusions of law which constitute the grounds of its action and those findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard will be given the opportunity of the trial court to judge the credibility of the witness. Ark. R. Civ. P. Rule 52(a). Here, the chancellor’s findings were brief, but he was not asked to make further findings regarding irreparable harm. In any event, requests for findings are unnecessary for purposes of review. Ark. R. Civ. P. Rule 52(a). In reviewing the record before us, we hold the evidence is more than sufficient to show that Earle Industries had sustained irreparable harm at least to the extent the chancellor fashioned and tailored the narrow relief granted.
The applicable law in these matters is well settled. Arkansas courts have granted injunctive relief in situations where mass picketing, blocking, and intimidation are employed during a labor dispute. Smith v. F & C Engineering Co., 225 Ark. 688, 285 S.W.2d 100 (1955); Local Union No. 858 v. Jiannas, 211 Ark. 352, 200 S.W.2d 763 (1947). Smith v. F & C Engineering, supra, involved a labor dispute between a local labor union and an engineering company which refused to pay overtime. The union established a picket line at one of the engineering company’s plants. The trial court issued an injunction restraining union members from picketing the company’s places of business and from threatening or committing acts of intimidation or violence against the company’s business, employees, and customers. In granting the injunction, this court observed that:
It is well settled by the decisions of the U. S. Supreme Court and our own cases that peaceful picketing is allowed under the constitutional guaranty of freedom of speech in order that a union may acquaint the public with the fact and nature of a labor dispute and solicit public support in any lawful manner to prevail in the controversy. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Local Union No. 313 v. Stathakis, 135 Ark. 36, 205 S.W. 450, 6 A.L.R. 894. It is equally settled that the law does not countenance the use of threats, intimidation, force, coercion, violence or other unlawful means, however laudable the motive or purpose of the strikers. Riggs v. Tucker Duck & Rubber Company, 196 Ark. 571, 119 S.W.2d 507; 31 Am. Jur., Labor, § 240. In this connection the U.S. Supreme Court has held the state still may exercise “its historic powers over such traditionally local matters as public safety and order and the use of the streets and highways.” Allen-Bradley Local, W.E.R.M.W. v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L. Ed. 1154.
225 Ark. at 697, 285 S.W.2d at 105. (Emphasis added.)
In Jiannas, a local union was enjoined from the illegal picketing of a restaurant in Pine Bluff. In affirming the trial court, we quoted the following rules with approval:
“Permissible activities on the part of pickets do not include obstruction of access of customers. Pickets may not aggressively interfere with the right of peaceful ingress and egress to and from the employer’s shop, or obstruct the public thoroughfares. Picketing is not peaceful where the sidewalk or entrance to a place of business is obstructed by pickets parading around in a circle or lying on the sidewalk.”
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“Picketing a place having direct dealings with the public, such as a restaurant, has been condemned in some cases because of its tendency to deter prospective patrons of the business by intimidation from entering the place of business. Thus, it has been decided that employees of a restaurant keeper who are on a strike, have no right to congregate about the entrance of his place of business and there, either by persuasion, coercion, or force, prevent his patrons and the public at large from entering his place of business or dealing with him.”
* * *
“Force threatened is the equivalent of force exercised. In many cases, it has been observed, it is difficult to draw the line of demarcation between intimidation and inoffensive persuasion. But even when the acts of the strikers, although unaccompanied by violence or threats, are such an annoyanee to others as to amount to coercion or intimation, they are unlawful.”
211 Ark. at 358-9, 200 S.W.2d at 766. (Emphasis added.)
We first point out that, while unlawful activities occurred in the case here, it can be said that the facts here existent do not quite reach the level of concern exhibited in either Smith or Jiannas. In Jiannas, union pickets and their sympathizers milled in the entrance way to a Pine Bluff restaurant, urged customers and employees not to enter. They cursed, bumped, and threatened people who did, or attempted to, enter, and one such man was beaten and severely injured. In Smith, evidence showed cars were parked up and down the road running by the company’s plant, and on one occasion, a truck was used to block the road. Employees were cursed, threatened, and frightened and the company’s general foreman was attacked by a union member. Evidence further revealed that nails had been placed in entrance and exit ways to and from the plant, causing numerous flats on company vehicles.
In the present case, a continuing strike was not involved. Even so, the proof showed that, in an earlier labor dispute and demonstration in October 1991, the Reverend Jackson led a similar march against Earle Industries, and he vowed to return. He kept that vow on September 14, 1993, and at the demonstration’s end, the Reverend Jackson again pledged to return a third time. Trespasser convictions resulted from both demonstrations. However, the 1993 demonstration posed more problems than those that arose in 1991. In fact, those problems in 1993 involved not only Earle Industries and its business and employees, but also the local law enforcement’s ability to control the demonstration.
The Chief of Police of Earle, Gregory Martin, offered the strongest testimony in support of Earle Industries’ request for an injunction. Chief Martin was the officer who observed a union member cutting the lock off the back gate of Earle Industries. He stated that the union demonstrators, numbering approximately sixty to seventy-five people, were heading toward the back gate when the man cut the lock. Chief Martin immediately arrested the man, and his officers then formed a line to stop the crowd from marching toward the gate. According to Chief Martin’s testimony, the demonstrators blocked Highway 64 and the entrance to Earle Industries’ factory. Ten to fifteen demonstrators’ vehicles blocked the east and westbound lanes of Highway 64. Chief Martin stated that several demonstrators refused to move their cars and that those cars were towed. About fifty people were sitting in the middle of Highway 64 when the officers arrived at the scene. Eventually, all of the protestors moved from the highway, but one individual had to be physically removed by Chief Martin. Demonstrators used banners to block Highway 64 and the factory’s entrance, and, while officers made arrests, the crowd chanted, “We shall not be moved.” Chief Martin stated that he employed all five officers of the Earle Police Department to control the demonstration and called for other backup because he was concerned that “things would get out of hand.” He added that, because of the demonstration, he had no officers available to respond to calls from other parts of town.
Employees of Earle Industries also testified that they were frightened and intimidated by the large group of protestors. Moreover, employees were distracted from their work because of the demonstration. Earle Industries enhanced security measures, using supervisors to monitor the situation. Pamphlets were distributed, claiming, “We Will Not Stop Until We Get Justice” and “The only thing Felsenthal understands is brute force.”
Amalgamated counters with evidence and testimony that it claims mitigates or conflicts with that presented by Earle Industries. While it is true that conflicting evidence was presented, it is sufficient to say that the chancellor was in a more favorable position than this court to judge credibility. After careful consideration of all the evidence, we hold that the chancellor’s decision was not clearly erroneous or clearly against the preponderance of the evidence and that, under the circumstances, he did not abuse his discretion in issuing the temporary injunction. See Smith v. F & C Engineering, supra', Ark. R. Civ. P. Rule 52(a).2
Amalgamated presents an alternative argument that would require the trial court to balance the threat of irreparable harm to Earle Industries against the harm and injury the requested relief would inflict upon Amalgamated and to consider the effect that the injunctive relief would have upon the public. Roberts v. Van Buren Public Schools, 731 F.2d 523 (8th Cir. 1984).
Regarding a worker’s right to strike, this court in Local Union No. 858 v. Jiannas, supra, stated the following:
We do not hold or intend to decide anything which abridges these rights, but he must exercise them in a lawful manner. He may not employ force, violence, threats or intimidation, because in so doing he is interfering with the rights of others as sacred, and as much entitled to the protection of the law, as are his own rights.
211 Ark. at 357, 200 S.W.2d at 766.
Earle Industries has shown irreparable harm inflicted upon it as well as the threat of such harm in the future. The chancellor, however, issued no blanket injunction prohibiting Amalgamated from picketing or demonstrating. Nor would this court countenance such an injunction under the circumstances of this case. In balancing the harm to Amalgamated or the public against the irreparable harm to Earle Industries, the chancellor merely enjoined Amalgamated from engaging in the illegal activities shown to have occurred in 1991 and 1993. He did not, it must be emphasized, enjoin the union from conducting demonstrations. In other words, the chancellor only restrained union members from (1) blocking or obstructing, or attempting to obstruct, the free use of the streets and highways adjacent to Earle Industries’ place of business, as well as passageways into and out of said business; (2) going on Earle Industries’ place of business, unless invited; and (3) cutting or damaging Earle Industries’ property.
Although we affirm the chancellor’s granting of a temporary restraining order, Amalgamated is not without relief. If and when Amalgamated shows the chancery court that peaceful picketing and demonstrating can be carried on in a manner that will avoid the likelihood of a repetition of the unlawful activities found by the trial court as described in its order, it may do so. Upon making such a showing, it may seek modification of the court’s order. Smith v. F & C Engineering, supra.
Affirmed.
Dudley, Newbern, and Brown, JJ., dissent.