Jones v. Demoulas Super Markets, Inc.

308 N.E.2d 512, 364 Mass. 726, 1974 Mass. LEXIS 611, 85 L.R.R.M. (BNA) 2681

• Court: Massachusetts Supreme Judicial Court
• Decided: March 7, 1974
• Status: Published

Opinions

Kaplan, J.

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 supermarkets and distributing handbills there with the object of inducing customers and prospective customers to stop patronizing these stores² 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 annul 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. 211 A, §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 aire 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 sure, stand in a relation of employer-employee; the controversy arises out of demands made by the defendants, as representatives of agricultural employees, upon the growers and producers, as employers or prospective employers, regarding the association or representation of these employees in seeking to negotiate terms of employment. The “regardless” clause takes in situations of primary dispute between a union and an employer although no union members are being employed; for example, a situation in which a union pickets an employer to unionize the shop although it has no members there, as in Poirier v. Superior Court, 337 Mass. 522 (1958); cf. New Negro Alliance v. Sanitary Grocery Co. 303 U. S. 552 (1938). So also the “regardless” clause covers situations where a union, party to a primary employer-employee dispute, applies pressure to another person, thereby engaging in a secondary controversy with him, in hopes that he will so act in his business as to exert pressure on the adversary in the primary dispute; such in outline is the present situation of secondary boycott.⁹ Cf. New York, N. H. & H. R.R. v. Jenkins, 331 Mass. 720 (1954), revd. on other grounds sub nom. Local Union No. 25 of the Intl. Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. New York, N. H. & H. R.R. 350 U. S. 155 (1956); Milk Wagon Drivers’ Union, Local No. 753 v. Lake Valley Farm Prod. Inc. 311 U. S. 91 (1940); Goldfinger v. Feintuch, 276 N. Y. 281 (1937). The Rhode Island Supreme Court, correctly, as it seems to us, applied a definition like our § 2ÓC (c), with the “regardless” clause, to a boycott of a local supermarket by UFW sympathizers similar in causes and circumstances to the one at bar. Almac’s Inc. v. R. I. Grape Boycott Comm. 110 R. I. 36 (1972). As the opinion below supporting the order of annulment observes, the proposition that such secondary relations are within § 20C (c) is reinforced by the fact that § 20C (f), describing an “unlawful secondary boycott,” speaks of it as “arising out of a labor dispute.”

But if we have here a “labor dispute,” as defined, we need to go a short step further to determine whether the present “cases” (i.e., suits) “involve” or “grow out of” that dispute. A factual connection is called for, but it need not be a tight one. Section 20C (a) says, as a first alternative, that a case shall be held to “involve” or “grow out of” the dispute when it “involves persons who are engaged in the same industry, trade, craft or occupation,” and this seems to us satisfied here by the fact that UFW is engaged in the food industry as are the plaintiff supermarkets; the industry can be taken to include those who grow, harvest, pack, and sell at wholesale and retail. See Milk Wagon Drivers’ Union, Local No. 753 v. Lake Valley Farm Prod. Inc., supra, 311 U. S. at 93-94 (1940) (production, processing, sale, and distribution of milk regarded as one industry, trade, and so forth); Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U. S. 437, 444 (1948); Marine Cooks & Stewards, AFL v. Panama S.S. Co. Ltd. 362 U. S. 365, 367-368, 370 (1960); Donnelly Garment Co. v. Dubinsky, 154 F. 2d 38, 40-41 (8th Cir. 1946); Galler v. Slurzberg, 27 N. J. Super. 139, 150-151 (1953), cert. den. 13 N. J. 391 (1953); Goldfinger v. Feintuch, supra, 276 N. Y. at 286-287 (1937); Alliance Auto Serv. Inc. v. Cohen, 341 Mass. 283, 287 (1941). We need not try to define the outer limits of the functional concept of “industry” contained in the labor statute. It is enough to say that to remove the plaintiff supermarkets, selling food at retail, from the food industry in common with UFW on the ground that they sell many sorts of food (or other things besides) would give them an immunity from the statute which in these days of multiproduct stores could not be defended in reason, policy, or authority.

But our statute contains further terms more expansive than “industry,” for § 20C (a) states, as another alternative, that a case “involves” or “grows out of” a labor dispute when it “involves any conflicting or competing interests” in the dispute of “ ‘persons participating or interested’ therein,” the latter words being in turn defined thus (§ 20C [b]): “A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it, and if he or it is engaged in the same industry, trade, craft or occupation in which such dispute occurs, or has a direct or indirect interest therein.” The requirement of “conflicting or competing interests” is satisfied,¹⁰ and the other words of § 20C (b), especially the word “indirect,” are broad.¹¹ We should add that, like Federal courts interpreting the Norris-LaGuardia Act, this court is committed to reading our statutes sympathetically, see DiLeo v. Daneault, 329 Mass. 590, 597 (1953); so in a case of doubt the party should be held entitled to the procedural protections. This court, indeed, is adjured to adopt this attitude by § 7 of St. 1950, c. 452, an important amendatory enactment:¹² “[T]his act [c. 452] shall be construed liberally in aid of its purpose which is to limit and curtail the use of injunctions in labor disputes.”

Lifting our eyes from the precise words of the statutes, we are obliged to consider that it was a principal aim of the Norris-LaGuardia Act to extend the procedural protections to cases of secondary boycotts in a labor struggle. In 1921, in the case of Duplex Printing Press Co. v. Deering, 254 U. S. 443, which drew the remarkable dissent of Justice Brandeis (Holmes and Clarke, JJ., concurring), it had been held that the Clayton Act did not legalize such a secondary boycott; the boycott could still be held to be an unlawful combination in restraint of trade under the Sherman Act. See also Bedford Cut Stone Co. v. Journeymen Stone Cutters’ Assn. of No. America, 274 U. S. 37 (1927). As the Supreme Court later said, “In those cases [the Duplex and Bedford cases] labor unions had engaged in a secondary boycott; they had boycotted dealers, by whom the union members were not employed, because those dealers insisted on selling goods produced by the employers with whom the unions had an existing controversy over terms and conditions of employment. This Court held that the Clayton Act exempted labor union activities only insofar as those activities were directed against the employees’ immediate employers and that controversies over the sale of goods by other dealers did not constitute ‘labor disputes’ within the meaning of the Clayton Act.” Allen Bradley Co. v. Local Union No. 3, Intl. Bhd. of Elec. Wkrs. 325 U. S. 797, 805 (1945). The unions went to Congress to undo the Duplex and Bedford cases, and part of the response was the inclusion of the “regardless” clause in the definition of “labor dispute” appearing in the Norris-LaGuardia Act (now 29 U. S. C. § 113 [c]). Secondary boycotts were neither legalized nor proscribed by that act;¹³ rather the Federal courts were restricted in their jurisdiction to issue injunctions in labor disputes and these disputes often comprehended such boycotts. So evident was it to Justice Frankfurter that the Norris-LaGuardia Act covered these boycotts that he could say shortly in Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U. S. 437, 444 (1948), “Sale by a merchant of non-union commodities is, no doubt, a traditional source of labor disputes within the scope of the Norris-LaGuardia Act.” Another experienced judge said recently that the history was so clear that “we are not surprised to find a paucity of decisions dealing directly with the question of whether so-called ‘secondary boycott’ activity of employees and unions may be within the protection of Norris-LaGuardia. Like Justice Frankfurter, reputedly the author of the Act, we would have assumed that the jurisdictional limitations of Norris-LaGuardia apply to secondary boycotts . . .” Tuttle, C.J., in Brotherhood of R.R. Trainmen v. Atlantic Coast Line R.R. 362 F. 2d 649, 653 (5th Cir. 1966), affd. by an equally divided court, 385 U. S. 20 (1966). In fact Federal authority on the point has not been lacking. See Milk Wagon Drivers’ Union, Local No. 753 v. Lake Valley Farm Prod. Inc. 311 U. S. 91 (1940); Amalgamated Ass’n of St. Elec. Ry. & Motor Coach Employees of America v. Dixie Motor Coach Corp. 170 F. 2d 902, 905-906 (8th Cir. 1948), and cases cited. A well known example of a like ruling by a State court, applying a local statute, adapted from the Norris-LaGuardia Act, to a secondary boycott, is Goldfinger v. Feintuch, 276 N. Y. 281 (1937). There a union of meat workers, seeking to unionize an employer-manufacturer, picketed a store that had purchased the product from that manufacturer and was selling it at retail; in a suit by the retailer against the union for injunctive relief, the New York court held that the statute applied, and its procedural incidents attached. See also Galler v. Slurzberg, supra, 27 N. J. Super, at 149-150 (1953), and cases and authorities cited.

This court has not, perhaps, had occasion to rule squarely that the limitations imposed by our statutes apply to cases of secondary boycotts, but the least that can be said is that we have been receptive to and inclined toward the idea. Thus in New York, N. H. & H. R.R. v. Jenkins, 331 Mass. 720 (1954), revd. on other grounds sub nom. Local Union No. 25 of the Intl. Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. New York, N. H. & H. R.R. 350 U. S. 155 (1956), the defendant union whose members were employed by motor carriers put pressure on the plaintiff railroad to cease carrying trailers “piggyback” and thereby reducing the amount of work available to the union members. The judge below evidently thought there was no “labor dispute” and he was not required to provide the statutory procedures; but in affirming (with a modification) the final decree — which was for the plaintiff railroad — this court pointed out that the judge had found an unlawful secondary boycott and had in fact sufficiently complied with the statutory requirements. Cf. Davis Bros. Fisheries Co. Inc. v. Pimentel, 322 Mass. 499 (1948). In Poirier v. Superior Court, 337 Mass. 522 (1958), this court showed keen awareness of the significance of the “regardless” clause and also noted that adjudged interpretations of the Federal statute should carry over to a later enactment of like language by our Legislature.

The plaintiffs suggest that there is a kind of natural limitation on the reach of the statute securing procedural safeguards, namely, that the quarrel between the disputants should pass an “ ‘economic self-interest’ test,” should be shown to be related to the “fairly direct economic interests” of the disputants, and should not have the appearance of being merely a phase of “an all-out class war.”¹⁴ If we should momentarily assume such a gloss on the statute, we would find it hard to see why the present case, like others involving boycotts of nonunion goods, does not meet the “test.” The economic self-interest that actuates UFW in attempting the boycott is plain. And — if one should accept provisionally UFW’s side of the story — the self-interest of the supermarkets is involved because the produce tended and harvested by nonunion workers under deplorable conditions or by workers spuriously unionized and suffering from “sweetheart” contracts will in the end cost retailers less than produce grown and brought in under sound union conditions; thus retailers willing to traffic in the suspect goods secure a competitive advantage. See Goldfinger v. Feintuch, supra, 276 N. Y. at 286 (1937); Fortenbury v. Superior Court of Los Angeles County, 16 Cal. 2d 405, 409-410 (1940).¹⁵ For purposes of such a “test” we are entitled to consider the dynamic forces at work in boycotts of this kind, without delving into the exact motives of self-interest of these particular plaintiffs.

The plaintiffs insist that the present boycott must ultimately be held unlawful under § 20C (f).¹⁶ But it is well established that such a forecast of illegality, no matter how confidently it can be made, is not a reason to deny at the threshold the procedures specified by the statute. As was said in Poirier v. Superior Court, supra, 337 Mass, at 527 (1958), “The effect of the definitions . . . is to make the procedural safeguards . . . applicable to every kind of labor dispute regardless of whether the dispute is lawful or unlawful as a matter of substantive law.”¹⁷ The same point has appeared repeatedly. See Simon v. Schwachman, 301 Mass. 573, 578-583 (1938); Fashioncraft, Inc. v. Halpern, 313 Mass. 385, 389-390 (1943); Colonial Press, Inc. v. Ellis, 321 Mass. 495, 499-500 (1947); DiLeo v. Daneault, supra, 329 Mass, at 597 (1953); Seekonk Family Drive-in Theatre, Inc. v. Madino, 340 Mass. 425, 427-429 (1960). As Judge Edgerton once put it, “The court’s ruling [i.e., the ruling there under review] comes to this, that the [Norris-LaGuardia] Act has no application to labor activity which a court thinks illegal or improper. But the Act has no practical application to anything else, for courts have never enjoined labor activity which they thought legal and proper. Therefore the court’s ruling not only conflicts with the Act but nullifies it.” Bakery Sales Drivers Local Union No. 33 v. Wagshal, 161 F. 2d 380, 385 (D. C. Cir. 1947) (dissenting opinion), affd. 333 U. S. 437 (1948).

Thus the failure to summon a three-judge court under G. L. c. 212, § 30, which would provide a hearing, make findings of fact, and otherwise insure adjective rights cannot be excused by any likelihood that the defendants would lose on the merits in the long run. It happens, however, that the case for the plaintiffs on the merits is not open-and-shut but is rather beset by doubts which can hardly be resolved without an examination and appraisal of the facts. We venture no opinion on the merits and merely recount the problems.

First. The Supreme Court in National Labor Relations Bd. v. Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U. S. 58 (1964), had before it the problem of interpreting a provision of the Labor Management Relations Act, 29 U. S. C. § 158 (b)(4)(ii)(B), declaring certain secondary boycotts to be an unfair labor practice. A union had struck packers and warehousemen handling Washington State apples in order to secure better terms upon renewal of a collective bargaining agreement with them. To put pressure on these employers, the union picketed a chain of “Safeway” retail food stores in Seattle which persisted in buying and selling the apples from the sources that had been struck. In the face of the statutory language which might be superficially read as outlawing this secondary boycott,¹⁸ the Supreme Court drew a distinction between, on the one hand, picketing and propaganda appealing to the public to have no dealings with the “Safeway” stores while the stores traded in these fruits and, on the other hand, appeals to the public not to buy these fruits, even though the appeals inferentially pointed to the Safeway stores. The former type of boycott could come under the statute declaring it an unfair labor practice to “threaten, coerce, or restrain” the secondary target — here the Safeway management — with the object of “forcing or requiring” it, and so forth; but the latter type avoided the statute as it was not coercive in the statutory sense. The exemptive interpretation was reached at least in part because of serious doubts about the validity of the statute in the light of the First Amendment if it was construed to sanction a restraint on picketing of the latter kind.¹⁹ Cf. Honolulu Typographical Union No. 37, Intl. Typographical Union, AFL-CIO v. National Labor Relations Bd. 401 F. 2d 952 (D. C. Cir. 1968); Kaynard v. Independent Routemen’s Assn. 479 F. 2d 1070 (2d Cir. 1973). A similar problem can arise under our § 20C (f) (see especially the words “force or require”), for it is not yet known what message was conveyed to the public by the defendants’ picketing and handbill distribution: the plaintiffs’ allegations indicate that the public was asked to cease altogether to shop at the supermarkets, whereas the petition for annulment of the preliminary injunctions speaks in a different sense, that the picketers were informing the customers of these supermarkets of the facts regarding the lettuce and grapes offered for sale.²⁰ The distinction is certainly not a simple one, as the Supreme Court freely conceded. It looks to proof. As the court indicated, however, the distinction is not unknown in the common law learning about such secondary boycotts (377 U. S. at 63-64 and n. 7 [1964]),²¹ and it is compatible with the Restatement: Torts, § 801, and illustration 1, comment b; cf. § 799 (1939). See Donnelly Garment Co. v. Dubinsky, supra, 154 F. 2d at 44-45 (8th Cir. 1946); Galler v. Slurzberg, supra, 27 N. J. Super, at 149-150 (1953). The distinction is not developed in our cases; as the opinion below said, our cases seem in fact to have involved picketing and similar activities of the more direct or focused, coercive type. Cf. Pickett v. Walsh, 192 Mass. 572 (1906); Burnham v. Dowd, 217 Mass. 351 (1914); Armstrong Cork & Insulation Co. v. Walsh, 276 Mass. 263 (1931).

Second. In the present cases the union activity took place on property privately owned, chiefly the parking lots. The plaintiffs suggest that this establishes the defendants’ culpability without more, since picketing that involves trespass is an anomaly. Yet it has been held that under given conditions picketers and handbill distributors, otherwise acting lawfully, may not be barred such access to the private areas of a shopping center as they require for effective delivery of a message which is in some way tied to the business at the center; in those circumstances the supermarkets can no more interpose their “ownership” of the parking areas as a bar to picketing than a municipality can insist on its “ownership” of the streets. But the access may be fairly conditioned and regulated. The principal authorities on the matter are the contrasting cases of Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. 391 U. S. 308 (1968), and Lloyd Corp. v. Tanner, 407 U. S. 551 (1972). See Note, Lloyd Corp. v. Tanner: Expression of First Amendment Rights in the Privately Owned Shopping Center — A Reevaluation by the Burger Court, 22 Catholic U. L. Rev. 807 (1973). So there may be a question of fact here as to whether access to the parking and other areas is needed to enable the picketers to convey the particular information, and further fact questions as to the physical layouts which may well vary from location to location, and as to the reasonableness of the regulations proposed by the plaintiffs.²²

The application to these cases of the procedures described by statute, with their insistence on fact finding, is thus seen to be advisable as well as required.²³

As we hold that the preliminary injunctions were jurisdictionally improper, we need not discuss the defendants’ broader contention that the injunctions violated their First

Amendment rights.

The stay of the order annulling the preliminary injunctions is vacated, the preliminary injunctions are annulled, and the cases remanded to the Superior Court for proceedings which comply with G. L. c. 212, § 30, and c. 214, § 9A, and which are consistent with this opinion.

So ordered.

1 It may be noted that agricultural workers are not covered by the Labor Management Relations Act, 1947, as amended (subch. II, National Labor Relations) 29 U.S.C. §152 (3) (1970).

2 As to the precise content of the appeals to customers, see p. 741 below.

3 The defendants’ petition for annulment or modification of the preliminary injunctions, referred to below, states that the defendants’ attorneys were notified by telephone on July 20 that the plaintiffs would be heard on July 24 on their request for temporary restraining orders; that they received copies of the bills of complaint by mail on July 23, and the plaintiffs’ memorandum of law in court on July 24.

4 The preliminary injunctions are identical and command the defendants, individually and as representatives, “to desist and refrain from picketing, marching, demonstrating, harassing or intimidating customers or prospective customers of the Demoulas Super Markets, while on the property owned or leased by the plaintiffs, including the parking lots adjacent to said stores, if owned or leased by the plaintiffs, until the further order of our said Court, or some Justice thereof.”

Apparently the defendants, while denying that acts of harassment or intimidation or the like have occurred, would not object to an injunction limited to such acts.

5 There was no reason here to consider the case of the plaintiff realty owners separately from that of the plaintiff supermarkets. Even if the apparent close relation among them is disregarded, the withdrawal of “jurisdiction” by § 9A (1) extends to all. “Jurisdiction to issue any such injunction is, in so many words, denied to the courts. It makes no difference who is the plaintiff. There is no jurisdiction to issue such an injunction on anyone’s application. Such are the plain words of the statute, and the obvious intent makes it even plainer.” Schivera v. Long Island Lighting Co. 296 N. Y. 26, 31 (1946). Cf. Mengel v. Superior Court, 313 Mass. 238, 242-243 (1943); Milk Wagon Drivers’ Union, Local No. 753 v. Lake Valley Farm Prod. Inc. 311 U. S. 91, 100-103 (1940); Brotherhood of R.R. Trainmen v. Atlantic Coast Line R.R. 362 F. 2d 649, 655 (5th Cir. 1966); Lee Way Motor Freight, Inc. v. Keystone Freight Lines, Inc. 126 F. 2d 931, 934 (10th Cir. 1942).

6 And it was right for the single justice below to notice the defect sua sponte, as it would go to the jurisdiction of the court in a fundamental sense. (The defendants in their petition for annulment mentioned a number of respects in which the procedures of the Superior Court in these cases failed in fact to comply with the statute, but they did not specifically rely on the statutory infractions as depriving the court of jurisdiction.) In the case of Brockton Pub. Mkts. Inc. v. Jones, post, 759, decided this day, the defendants raised" the jurisdictional question promptly by means of a motion for the appointment of three judges in accordance with G. L. c. 212, § 30.

7 See the further procedural requirements at § 9A (1) (d) and (e), (2) through (6), which include provisions for a finding as to police protection, for filing undertakings, and for a showing by a complainant who seeks an injunction that he has made reasonable efforts to settle the dispute.

8 Section 9A (1) states in part: “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 section twenty C of chapter one hundred and forty-nine, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court, to the effect. . ..”

9 Exact definitional precision can be forgone here; see n.21, infra.

10 Compare the discussion, pp. 737-738 below, concerning a “self-interest test.’’

11 With regard to the defendants (UFW) as persons “participating or interested”: “relief” is sought against them in these suits, and, especially when “indirect” is taken into account, they satisfy the rest of the sentence whether the referent of “therein” be “industry” or “dispute.” See New Negro Alliance v. Sanitary Grocery Co. 303 U. S. 552, 559-560 (1938); Fur Wkrs. Union, Local No. 72 v. Fur Wkrs. Union No. 21238, 105 F. 2d 1, 6-8 (D. C. Cir. 1939). If the plaintiff supermarkets must also fit the sentence, they readily do, the “relief” referred to being the action which the defendants demand and the plaintiffs are in a position to take and which will in fact assist the defendants in their unionizing effort.

12 It was this statute which added the “regardless” clause to the definition of labor dispute and added definitions of lawful and unlawful labor disputes and unlawful secondary boycotts. (Section 7 of the statute, quoted in the text, is not reproduced in the General Laws.)

13 That subject matter was dealt with in the Labor Management Relations Act, 1947, and again in the Labor-Management Reporting and Disclosure Act of 1959, and now appears as 29 U. S. C. § 158 (b) (4), quoted in part at n. 18, infra. Our legislation on this matter came in with St. 1950, c. 452, §2; seen. 12, supra, and now appears as c. 149, § 20C (f).

14 The words are quoted from Brotherhood of R.R. Trainmen v. Atlantic Coast Line R.R. (cited earlier in the text of this opinion), from which the plaintiffs derive their suggestion. See 362 F. 2d at 654 and n. 6. The discussion in that case buttressed a holding by the judge that a secondary boycott did fall within the Norris-LaGuardia Act.

15 The court remarked in the Fortenbury case (at 409): “One who sells a product of a merchant or manufacturer engaged in a labor dispute with his employees, inescapably becomes an ally of the employer. He has a direct unity of interest with the one against whom labor’s complaint is directed. By providing an outlet for that product, he enables the employer to maintain the working conditions against which labor is protesting. And unless the union is allowed to follow the product to the place where it is sold and to ask the public by peaceful representations to refrain from purchasing it, the workers have no real opportunity to tell their story to those whose interest or lack of interest will, in large measure, determine the issues in dispute.”

16 Note the clause about “greater part” in the text of § 20C (f): “The term ‘unlawful secondary boycott’ means any strike, slowdown, boycott, or concerted cessation of work or withholding of patronage or services, arising out of a labor dispute, where an object thereof is to force or require any person not otherwise engaged in such labor dispute to cease using, selling, handling, transporting, or dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; provided, however, that a secondary boycott may lawfully be directed at a person the greater part of whose current business over a representative period is processing, selling, handling, transporting or otherwise dealing in the goods of an employer primarily interested in a lawful labor dispute or who, by any agreement, understanding or arrangement with such employer, is requiring his own employees to perform work or services which would be done by the employees of such employer in the absence of a labor dispute.”

17 In this passage the court cited § 20C (c), (d) and (e) (the latter two subsections define lawful and unlawful labor disputes) but did not cite (f) (which defines an unlawful secondary boycott). The plaintiffs suggest that the omission is significant, but such a distinction would be very thin, and could hardly be justified rationally. In fact, G. L. c 212, § 30, requires appointment of three judges “[i]n any action or proceeding involving or arising under sections . . . twenty C . . .of chapter one hundred and forty-nine, or section nine A . . .of chapter two hundred and fourteen . . .” and thus does not distinguish between the several subsections of § 20C but rather includes them all.

18 The text of the subsection is:

“(b) It shall be an unfair labor practice for a labor organization or its agents

“(4). . . (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is —. . .

“(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; . . . Provided, That nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this subchapter: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution;. . ..”

19 Justice Black thought the statute, properly construed, did cover this picketing; thus construed, the statute must, in his opinion, be held unconstitutional pro tanto.

20 An injunction, if finally granted, might prohibit only such propaganda as was coercive. See National Labor Relations Bd. v. Fruit & Vegetable Packers & Warehousemen, Local 760, supra, 377 U. S. at 60, n. 3, 75-76 (1964); Alien Bradley Co. v. Local Union No. 3, Intl. Bhd. of Elec. Wkrs. 325 U. S. 797,812-813 (1945).

21 Where picketing is addressed to the nonunion origins of the particular goods, and does not ask the public to stop all purchases at the picketed outlet, the boycott has been characterized by some courts not as “secondary” but as a “primary” one against the goods. See National Labor Relations Bd. v. Fruit & Vegetable Packers & Warehousemen, Local 760, supra, 377 U. S. at 64, n. 7 (1964).

22 The cases may ultimately involve other fact issues as the controlling labor statutes show.

23 Indeed, even if the statutes were held inapplicable because no labor dispute existed, these cases might well be thought deserving of more extended and deliberate examination on the facts than they received in the Superior Court.

In these opinions, the respective terms “plaintiff” or “plaintiffs” and “defendants” refer to the parties in the Superior Court litigation. Reporter.