author: Mr. Justice Black Mr. Justice Stewart, Mr. Justice Fortas,

text:
    TRANSPORTATION-COMMUNICATION EMPLOYEES UNION v. UNION PACIFIC RAILROAD CO.
    No. 28.
    Argued October 19, 1966.
    Decided December 5, 1966.

      Milton Kramer argued the cause for petitioner. With him on the. briefs were Lester P. Schoene and Martin W. Fingerhut.

      James A. Wilcox argued the cause for respondent. With him on the brief was H. Lustgarten, Jr.

      Clarence M. Mulholland, Edward J. Hickey, Jr., and Richard R. Lyman filed a brief for the Railway Labor Executives’ Association, as amicus curiae, urging reversal.
   Mr. Justice Black

delivered the opinion of the Court.

Transportation-Communication Employees Union, the petitioner, is the bargaining representative of a group of railroad employees commonly known as “Telegraphers.” Prior to 1952 these telegraphers were commonly assigned the duty of sending, by telegraph, railroad way bills, manifests and orders prepared by clerks, members of the brotherhood of Railway Clerks. In 1952, however, the respondent here, Union Pacific Railroad Company, installed IBM machines which resulted in a radical change in the workload of the telegraphers and clerks. When the clerical work previously done by the clerks is manually performed on the IBM machines, the machines automatically perform the communications functions previously performed by the telegraphers. As a result, the railroad’s need for telegraphers was practically eliminated and operation of the IBM machines was assigned to members of the clerks’ union. This ease arises out of the dispute over the railroad’s assignment of these jobs to the clerks. The telegraphers’ union, claiming the jobs for its members under its collective bargaining agreement, protested the railroad’s assignment and, in due course, referred its claim to the Railroad Adjustment Board as authorized by § 3 First (i) of the Railway Labor Act. Notice of the referral was given to the clerks’ union, which, pursuant to an understanding with the other labor unions, declined to participate in this proceeding on the ground that it had no interest in the matter but stated its readiness to file a like proceeding before the Board to protect its members should any of their jobs be threatened. The Board then heard and decided the case without considering the railroad’s liability to the clerks under its contract with them, concluded that the telegraphers were entitled to the jobs under their contract, and ordered that the railroad pay the telegraphers who had been idle because of the assignment of the jobs to the clerks. The telegraphers’ union then brought this action in a United States District Court to enforce the Board’s award as authorized by § 3 First (p) of the Act. That court dismissed the case on the ground that the clerks’ union was an indispensable party, and that the telegraphers, though given the opportunity, refused to make it a party. 231 F. Supp. 33. Affirming the dismissal, the Court of Appeals pointed out that the Board had failed to carry out its exclusive jurisdictional responsibility to decide the entire dispute with relation to the conflicting claims of the two unions under their respective contracts to have the jobs assigned to their members. We granted cer-tiorari in order to settle doubts about whether the Adjustment Board must exercise its exclusive jurisdiction to settle disputes like this in a single proceeding with all disputant unions present. Cf. Whitehouse v. Illinois Cent. R. Co., 349 U. S. 366, 371-372. We hold that it must.

I.

Petitioner contends that it is entirely appropriate for the Adjustment Board to resolve disputes over work assignments in a proceeding in which only one union participates and in which only that union’s contract with the employer is considered. This contention rests on the premise that collective bargaining agreements are to be governed by the same common-law principles which control private contracts between two private parties. On this basis it is quite naturally assumed that a dispute over work assignments is a dispute between an employer and only one union. Thus, it is argued that each collective bargaining agreement is a thing apart from all others and each dispute over work assignments must be decided on the language of a single such agreement considered in isolation from all others.

We reject this line of reasoning. A collective bargaining agreement is not an ordinary contract for the purchase of goods and services, nor is it governed by the same old common-law concepts which control such private contracts. John Wiley & Sons v. Livingston, 376 U. S. 543, 550; cf. Steele v. Louisville & N. R. Co., 323 U. S. 192. “. . . [I]t is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. . . . The collective agreement covers the whole employment relationship. It calls into being a new common law — the common law of a particular industry or of a particular plant.” United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U. S. 574, 578-579. In order to interpret such an agreement it is necessary to consider the scope of other related collective bargaining agreements, as well as the practice, usage and custom pertaining to all such agreements. This is particularly true when the agreement is resorted to for the purpose of settling a jurisdictional dispute over work assignments.

There are two kinds of these jurisdictional disputes. Both are essentially disputes between two competing unions, not merely disputes between an employer and a single union. The ordinary jurisdictional dispute arises when two or more unions claim the right to perform a job which existed at the time their collective bargaining contracts with the employer were made. In such a situation it would be highly unlikely that each contract could be construed as giving each union the right to be paid for the single job. But the dispute before us now is not the ordinary jurisdictional dispute where each union claims the right to perform a job which existed at the time its collective bargaining agreement was made. Here, though two jobs existed when the collective bargaining agreements were made and though the railroad properly could contract with one union to perform one job and the other union to perform the other, automation has now resulted in there being only one job, a job which is different from either of the former two jobs and which was not expressly contracted to either of the unions. Although only one union can be assigned this new job, it may be that the railroad’s agreement with the nonassigned union obligates the railroad to pay it for idleness attributable to such job elimination due to automation. But this does not mean that both unions can, under their separate agreements, have the right to perform the new job or that the Board, once the dispute has been submitted, to it, can postpone determining which union has the right to'the job in the future. By first ordering the railroad to pay one union and then later, in a separate proceeding, ordering it to pay the other union, without ever determining which union has the right to perform the job and thus without ever prejudicing the rights of the other union, the Board abdicates its duty to settle the entire dispute. Yet this is precisely the kind of merry-go-round situation which the petitioner claims is envisaged by the Act, a procedure which certainly does not “provide for the prompt and orderly settlement of all disputes . . . ,” the purpose for which the Adjustment Board was established. § 2 (5). (Emphasis supplied.)

I — I h-i

The railroad, the employees, and the public, for all of whose benefits the Railway Labor Act was written, are entitled to have a fair, expeditious hearing to settle disputes of this nature. And we have said in no uncertain language that the Adjustment Board has jurisdiction to do so. Order of Railway Conductors v. Pitney, 326 U. S. 561, was decided 20 years ago. That case concerned a dispute over which employees should be assigned to do certain railroad jobs — members of the conductors’ union under their contract or members of the trainmen’s union under their contract. In that case a district court, in charge of a railroad in bankruptcy, had entered a judgment in favor of the conductors. We reversed, holding that the Railway Labor Act vested exclusive power in the Adjustment Board to decide that controversy over job assignments. It is true that we did not precisely decide there that the Board must bring before it all unions claiming the same jobs for their members, but we did say this:

“We have seen that in order to reach a final decision on that question the court first had to interpret the terms of O. R. C.’s collective bargaining agreements. The record shows, however, that interpretation of these contracts involves more than the mere construction of a ‘document’ in terms of the ordinary meaning of words and their position. . . . For 0. R. C/s agreements with the railroad must be read in the light of others between the railroad and B. R. T. And since all parties seek to support their particular interpretation of these agreements by evidence as to usage, practice and custom, that too must be taken into account and properly understood. The factual question is intricate and technical. An agency especially competent and specifically designated to deal with it has been created by Congress.” Id., at 566-567. (Emphasis supplied.)

Pour years after Pitney we decided Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239. In that case a state court had interpreted collective bargaining contracts between a railroad and the same two unions here and had decided in favor of the clerks. We reversed, and, relying on Pitney, said:

“. . . There we held, in a case remarkably similar to the one before us now, that the Federal District Court in its equitable discretion should have refused ‘to adjudicate a jurisdictional dispute involving the railroad and two employee accredited bargaining agents . . . .’ Our ground for this holding was that the court ‘should not have interpreted the contracts’ but should have left this question for determination by the Adjustment Board, a congressionally designated agency peculiarly competent in this field. 326 U. S., at 567-568.” Id., at 243-244. (Emphasis supplied.)

We adhere to our holdings in Pitney and Slocum that the Adjustment Board does have exclusive jurisdiction to hear and determine disputes like this. See also Order of Railway Conductors of America v. Southern R. Co., 339 U. S. 255. Petitioner argues that we are barred from this holding by Whitehouse v. Illinois Cent. R. Co., 349 U. S. 366, decided after Pitney and Slocum. There is some language in Whitehouse which, given one interpretation, might justify an inference against the Adjustment Board’s jurisdiction fully to decide this case in a single proceeding. But in the final analysis the holding in Whitehouse was only that the primary jurisdiction of the Adjustment Board could not be frustrated by a premature judicial action. Cf. Carey v. Westinghouse Elec. Corp., 375 U. S. 261, 265-266. We decline to expand that case beyond its actual holding.

The Adjustment Board has jurisdiction, which petitioner admits, to hear and decide the controversy over the interpretation of the telegraphers’ contract with the railroad as it relates to .the work assignments. And § 3 First (j) provides that “the several divisions of the Adjustment Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them.” The clerks’ union was given notice here as it should have been under § 3 First (j). Certainly it is “involved" in this dispute. Without its presence, unless it chooses to default and surrender its claims for its members, neither the Board nor the courts below could determine this whole dispute. As respondent contends, to decide, as the Board has here, that the telegraphers are entitled to be paid for these jobs creates another controversy for the railroad with the clerks who have the jobs now. For should the Board’s order be sustained, the railroad would not only have to make back payments to the telegraphers who have done no work but would be compelled to continue to pay two sets of workers — one set being idle. The Adjustment Board, as we said about the National Labor Relations Board in Labor Board v. Radio & Television Broadcast Engineers, 364 U. S. 573, 582-583, can, with its experience and common sense, handle this entire dispute in a satisfactory manner in a single proceeding.

We affirm the judgment of the Court of Appeals in holding that the clerks’ union should be a party before the Board and the courts to this labor dispute over job assignments for its members. The cause should be remanded to the District Court with directions to remand this case to the Board. The Board should be directed to give once again the clerks’ union an opportunity to be heard, and, whether or not the clerks’ union accepts this opportunity, to resolve this entire dispute upon consideration not only of the contract between the railroad and the telegraphers, but “in the light of . . . [contracts] between the railroad” and any other union “involved” in the overall dispute, an,d upon consideration of “evidence as to usage, practice and custom” pertinent to all these agreements. Order of Railway Conductors v. Pitney, supra, at 567. The Board’s order, based upon such thorough consideration after giving the clerks’ union a chance to be heard, will then be enforceable by the courts.

It is so ordered.

Mr. Justice Stewart,

whom Mr. Justice Brennan joins,

concurring.

Until now the Adjustment Board has dealt with the claim of the telegraphers as though it were totally unrelated to the claim of the clerks. To take this piecemeal approach to the underlying causes of this controversy not only invites inconsistent awards, but also ignores the industrial context in which the disputed contract was framed and implemented.

This case aptly illustrates why the Board cannot judge one-half of a problem while closing its eyes to the other half. The disputed provisions of the collective agreement were drawn before technological progress telescoped two work stations into one. The agreement did not explicitly provide for such a change. But it was designed to cover an extended period of time, and its language is sufficiently general to allow for flexibility in the light of changing circumstances.

To do justice to the parties in this situation the Board must take full measure of their circumstances. To justify the deference which the law has given to its decisions, the Board must employ a decision-making technique that rests on fair procedure and industrial realities. By using a simple bilateral contract analysis the Board defaults in both of these duties. Cf. Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich. L. Rev. 1, 22-23, 26-27 (1958); Note, 75 Yale L. J. 877, 889-890 (1966).

Only by proceeding as the Court today directs can the Board properly decide cases of this kind. The provisions in the Railway Labor Act which state that the Board’s orders are to be directed only against the carrier do not detract from the power of the Board to fulfill its tasks. For if the telegraphers and the clerks both advanced their claims and the Board directed the carrier to honor the claims of only one union, the other union would be bound just as though it had lost in a multilateral in rem proceeding. See 3 Freeman, The Law of Judgments §§ 1524-1526 (5th ed. 1925).

Since the Board has failed to use procedures which allow for an informed and fair understanding of the dispute between the petitioner and respondent, I concur in the opinion and judgment of the Court.

Mr. Justice Fortas,

with whom The Chief Justice joins,

dissenting.

This case involves a dispute between the telegraphers’ union and a railroad as to whether the union’s members, under its collective bargaining agreement with the carrier, were entitled to certain jobs (or compensatory payments in lieu thereof) which the carrier had unilaterally allotted to another union, the clerks. The telegraphers complained to the Railroad Adjustment Board. The Board held that, under the contract between the telegraphers and the railroad, the telegraphers’ members had a right to the jobs, and it ordered the carrier to make compensatory payments to the senior telegrapher idled by its action.

The Court now holds that such an award will not be enforced because the clerks’ union was not a party to the proceeding, and because the Board merely adjudicated the rights of the telegraphers and did not determine whether the clerks were entitled to the jobs instead. The Court’s opinion states that the jobs in question must belong to one union or the other, and that it is the Board’s duty to decide which of the two unions is entitled to the jobs.

I dissent. The Board acted as the statute commands. As I shall discuss, its power is limited to adjudications of grievances and contract disputes between a union and a railroad. It cannot compel conversion of a complaint proceeding between a union and a railroad into a three-party proceeding to “settle the entire dispute.” Certainly the courts should not refuse ,to enforce its award because the Board has failed to do something which the statute does not require or empower it to do. I also emphatically submit that this Court should neither devise nor impose upon the Board or upon management and labor, the proposition, making its debut in this case in the field of railway labor law, that “only one union can be assigned this new job.” There is nothing in the statute or precedents that permits or justifies this peremptory judicial foray into other people’s business.

The basis of the Court’s holding cannot be found in any provision of the Railway Labor Act. 44 Stat. 577 (1926), as amended, 45 U. S. C. §§ 151-188 (as amended by Act of June 20, 1966, 80 Stat. 208). The Court adverts to § 2 of the Act, which sets forth the purposes of the Railway Labor Act (including, of course, provisions relating to the National Mediation Board and provisions creating general duties and rights of carriers and employees — none of which defines the powers of the Adjustment Board). Section 2 sets forth a number of purposes, among which appears the phrase quoted in part by the Court: “(4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (6) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” To the extent to which these provisions relate specifically to the purposes of the Adjustment Board, they do not define its powers. The Board’s powers are specifically defined and limited in § 3 First (i) of the Act. The Court begs the question by giving to the phrase “settlement of all disputes” a meaning which disregards both the qualifying language of § 2 itself, and the specific enumeration of powers in § 3 First .(!)•

Ultimately, however, the Court appears to rest its decision not upon the Act, but upon a “principle” which it now creates. That proposition — unknown to railway labor law until this day — is that, whatever the parties’ contract provides, the Board must observe and enforce the rule that “only one union can be assigned this new job.” The Court holds that even if “the railroad’s agreement with the nonassigned union obligates the railroad to pay it for idleness attributable to such job elimination due to automation,” the Board cannot conclude “that both unions can, under their separate agreements, have the right to perform the new job. . . .” It is because of this controlling principle that the Court asserts it was error for the Board to make an award unless the award would bind the clerks' union as well. Throughout its opinion the Court stresses that there is now but one “job” and that only one union’s member can have “the right to the job.” Obviously only one person can actually do the job; but the Board held only that a telegrapher was entitled to be paid for the job. In fact, the Court is — without articulating its premise — assuming that featherbedding is forbidden by natural law or some other type of mandate that overrides contract, and that it is the Board’s duty to enforce the prohibition. From this novel premise it derives its conclusion that the award was not enforceable.

There is no basis in the Railway Labor Act for either of the Court’s propositions: that both unions must be parties to a proceeding initiated by one of them, or that the Board must “settle the entire dispute” by determining that one or the other (but not both) of the unions has title to the jobs. The Court’s predilection for one job, one man may be sensible, but it may also be contrary to contract; and I know of no provision in the Constitution or statutes or decided cases that compels it. There is no basis for this Court to dictate — and that is what it is here doing — that a collective bargaining contract may not be enforced in accordance with its terms but must be subordinated to a one job, one man theory. This Court cannot and should not impose its own views. The anti-featherbedding principle may or may not be an admirable theory, depending upon one’s preconceptions and point of view. It does not now exist in the railway labor field. And I respectfully suggest that this Court is in no position to assess the desirability of its judicial innovation. If featherbedding in the railroad industry is to be declared unlawful, it should not be this Court which does it. To say the least, the problems are too esoteric and too volatile to be the subject of judicial edict. They should be left to the parties and the legislature. Certainly, this Court should not invade the integrity of collective bargaining contracts to legislate the result it considers desirable or “orderly.”

Only last Term this Court considered one of the peculiar institutions of railway labor, and sustained the validity of state “full-crew” statutes. These statutes, in direct contrast to the one job, one man principle that the Court today assumes, have the effect sometimes of requiring railroads to hire one man, no job. The Court sustained these statutes against claims, among others, that Congress in the Railway Labor Act had preempted the field. Engineers v. Chicago, R. I. & P. R. Co., 382 U. S. 423 (1966). Such a “sensitive and touchy problem” (id., at 430), the Court wisely decided, was to be left to collective bargaining and the States in the absence of a clear congressional command. It is hard to comprehend the Engineers case if, as the Court now finds, the Railway Labor Act itself (presumably ever since its enactment in 1926) or other overriding law forbids what “full-crew” laws command. Certainly, the present problem, if it is a different one at all, is equally “sensitive and touchy,” and the Court has yet to disclose the congressional authority dictating contrary treatment.

Prior decisions of this Court are of no assistance. The Court first refers to Order of Railway Conductors v. Pitney, 326 U. S. 561 (1946). The Court candidly states that “we did not precisely decide there that the Board must bring before it all unions claiming the same jobs for their members . . . .” All that the Court decided in Pitney was that a dispute between two unions claiming a right to certain jobs had first to be determined by the Railroad Adjustment Board, and could not be decided initially by a bankruptcy court in reorganization proceedings. The passage from Pitney quoted by the Court merely states that the decision of the issue — the interpretation of the conductors’ collective bargaining contract — had to be made in light of usage, practice and custom, and of other agreements between the railroad and the trainmen. Indeed, the quotation from Pitney recalls the basic principle that the Court here ignores: that in the “intricate and technical” field of railway labor relations, no court, including this Court, should displace the agency which Congress has vested with authority— certainly not with the drastic imposition of a mandate to eliminate featherbedding.

It is, however, essential to note that there is absolutely no reason to believe that the Board failed to follow Pit-ney here. Both the majority and concurring opinions assume as fact that the Adjustment Board violated the duty declared in Pitney to construe the telegraphers’ contract in light of the clerks’ contract and railroad usage, practice and custom. Thus the majority characterizes the Board’s proceedings in this case as one “in which only [the telegraphers’] . . . contract with the employer [was] . . . considered.” The concurrence asserts that “Until now the Adjustment Board has dealt with the claim of the telegraphers as though it were totally unrelated to the claim of the clerks,” and has used “a simple bilateral contract analysis” which prevented it from arriving at “an informed and fair understanding of the dispute between the petitioner and respondent.” I am unable to find in the record before this Court any support for these suggestions that the Adjustment Board failed to perform its duty by refusing to consider the clerks’ contract for its evidentiary value.

The award of the Board makes clear that both practice and usage, and the possibly conflicting contractual claim of the clerks to the job in question, and the fact that clerks were currently performing the job, were considered by the Board. As to usage, the Board itself observed, with respect to a different aspect of its award, that “there is unanimity upon the proposition that where, as here, the Scope Rule lists positions instead of delineating work, it is necessary to look to practice and custom to determine the work which is exclusively reserved by the Scope Rule to persons covered by the Agreement.”

The Board’s analysis of the substance of the dispute shows its central awareness of the clerks’ claim to the jobs. The machines involved in this case are IBM teletype printers and receivers. They perform automatically the function of transmitting and receiving teletype messages between on-line railroad offices. The Board found that prior to the installation of these machines, telegraphers had exclusively performed this transmitting and receiving function as teletype operators and printer operators. However, apparently for its own convenience, since other machines in its IBM-complex were operated by clerks, the railroad unilaterally assigned the operation of the teletype printers and receivers to members of the clerks’ union. The Board found that the work involved in operating the new machines had “been performed in the past by telegraphers and not by clerks.”

Furthermore, even if the majority and concurring opinions were correct in stating that the Board failed to take the proper broad view of its function in construing the contract before it, the remedy, of course, would be to remand to the Board for a second proceeding to construe this contract. Instead, the Court remands for an entirely new proceeding to construe not only the contract brought before the Board in this ease, but also the contract of a third party which has never invoked the Board’s jurisdiction, which is not a party and which can be compelled to become a party only by this Court’s gloss on the statute, and in addition to apply in this new proceeding a novel substantive principle forbidding featherbedding.

Actually, the railroad’s complaint is not that the Board refused to consider the clerks’ contract, or relevant usage and practice. It is that the Board did not decide matters outside the issues submitted to it by the parties and the statute. And despite suggestions that Pitney was violated, the Court’s real point — as it is respondent’s— is that the Board should, in this proceeding between the telegraphers’ union and the carrier, also decide the rights of the clerks’ union — and should do so by awarding the jobs to one union or the other.

The Court also refers to Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239 (1950). This case is of no assistance whatever. The railroad filed an action in a state court for a declaratory judgment as to which of two unions was entitled under its contract with the railroad to have its members perform disputed jobs. Both unions were joined as defendants. This Court again held that the courts should not interpret the unions’ contracts because this question is for determination by the Adjustment Board, “a congressionally designated agency peculiarly competent in this field.” 339 U. S., at 244.

There is no doubt of the soundness of either Pitney or Slocum. The Railroad Adjustment Board does have exclusive, primary jurisdiction to determine contract disputes between a union and a carrier. And the Board must do so in light of “evidence as to usage, practice and custom” and of allegedly overlapping contracts with other unions. But the Board’s authority is specific and limited. The Railway Labor Act narrowly defines the Adjustment Board’s power. The Board hears a dispute (a) “between an employee or group of employees and a carrier or carriers,” (b) “growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions,” (c) if the dispute is referred to it “by petition of the parties or by either party.” It renders “awards,” which are “final and binding upon both parties to the dispute.” That is the sum total of powers over disputes vested in the Railroad Adjustment Board.

The Railroad Adjustment Board is quite a different agency from the National Labor Relations Board, from whose somewhat analogous role in other industries the Court appears to derive some comfort. The NLRB has broad jurisdiction over “unfair labor practices.” Section 10 (k) of the National Labor Relations Act (49 Stat. 453, as amended, 61 Stat. 146, 29 U. S. C. § 160 (k)) provides that whenever it is charged that any person has engaged in the unfair labor practice of a strike to enforce a union’s demand in a jurisdictional controversy with another union, the NLRB is “empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen.” Under this section, this Court has in the past required the NLRB to take action of the kind which, in the present case, it for the first time requires of the Railroad Adjustment Board. The Court has held that the NLRB cannot obtain enforcement of a cease-and-desist order which determines only that the respondent union is not entitled to the work in dispute under its certification or collective bargaining agreement. The Court required that the Board go further and decide which of the two contending unions is entitled to the work and “then specifically to award such tasks in accordance with its decision.” Labor Board v. Radio Engineers, 364 U. S. 573, 586 (1961). The difficulty, however, is that § 10 (k) has no counterpart in the Railway Labor Act. No such power exists in the Railroad Adjustment Board, nor does the statute impose any comparable duty upon it.

The Board is essentially a permanent bilateral arbitration institution created by statute for settling disputes arising in the context of an established contractual relationship. Its nature is illustrated by the provisions of the Act relating to awards made by the Board. These are couched in terms which assume a grievance or claim asserted by an employee or.a union against a carrier. The provisions refer only to carriers, not to other unions. For example, § 3 First (o) states that “In case of an award ... in favor of petitioner . . . the Board shall make an order, directed to the earner, to make the award effective . . . .” (Italics added.) The only provision in the Act for enforcement of awards is cast in terms of the-carrier: “If a carrier does not comply with an order . . . .” § 3 First (p). (Italics added.) Nowhere in the Act is there a syllable which would indicate the intention that the Board is empowered to make awards as between the claims of contending unions. The Act is as clear as can be that the Adjustment Board’s function is to act in disputes between a carrier and a union or employee, to adjudicate grievances of employees or their organizations against the carriers, and to pass upon controversies as to the meaning of the collective bargaining agreement between a carrier and a union. The Board is not comparable in scope, function, capability or authority to the National Labor Relations Board. It has no authority over “unfair labor practices” in general. It has no power comparable to that given the NLRB by § 10 (k) of the National Labor Relations Act to “hear and determine” jurisdictional disputes; it may make a decision affecting a jurisdictional dispute, but only if it comes to the Board in the limited and constricted form of a dispute between a union and a carrier as to the meaning and application of their agreement.

The Act does not give the Board power to compel a union which is affected by a contract dispute between another union and a carrier to participate in or be bound by the proceeding. This is “[o]ne thing [that] is unquestioned” according to the opinion of this Court in Whitehouse v. Illinois Cent. R. Co., 349 U. S. 366, 372 (1955). In that case, a dispute had arisen between the telegraphers and the respondent railroad because the railroad employed members of the clerks’ union for jobs which the telegraphers claimed should have been allotted to its members under its collective bargaining agreement with the railroad. In due course, the telegraphers submitted the dispute to the Railroad Adjustment Board. Before a decision was announced by the Board, the railroad brought an action in the United States District Court to compel the Board to notify the clerks, asserting that otherwise the railroad might have to face a similar claim from the clerks. This Court held that the action was premature; but it pointed out that “One thing is unquestioned. Were notice given to Clerks they could be indifferent to it; they would be within their legal rights to refuse to participate in the present proceeding.” 349 U. S., at 372. It said, flatly, that “The Board has jurisdiction over the only necessary parties to the proceeding [i. e., the telegraphers’ union] and over the subject matter.” Id., at 373. In substance, the Court in the present case repudiates Whitehouse for reasons, not of law, but of assumed practical administrative symmetry and its own conceptions as to what is fair in a complex industrial situation. Labor relations are not susceptible of reduction to such simplicities; and with all deference this Court should fear to tread this path.

This is much more than a procedural matter. It is even more than whether the clerks can be subjected to a proceeding to which they assert they are strangers and to which Congress did not intend that they be subjected. The Court today rules that whatever the collective bargaining agreements provide — regardless of their provisions, and of the understanding of the parties — the Board must award the disputed work to one union or the other, and that it cannot provide a remedy to members of both, even if their contracts should so demand.

This may sound eminently reasonable at first hearing. But it may be both unfair and highly disruptive. Certainly, there is not a line, a word, in the Railway Labor Act which supports it. Let us suppose, for example, in the present situation that each IBM machine required one operator, and that the machine and the one operator performed both clerical and telegraphic services, displacing a telegrapher and a clerk. I know of absolutely no warrant for the Court’s statement that the Board must “settle the entire dispute” by determining “which union has the right to the job” even if “both unions . . . under their separate agreements, have the right to perform the new job. . . .” On the contrary, regardless of what the clerks’ contract provides, if the telegraphers’ contract also establishes their right to the job — which is entirely conceivable — the telegraphers are entitled to compensation. It is entirely possible that since the Board, as I have discussed, is limited to construing and applying the agreements between each union and the carrier, it may indeed find that it has to require payment to members of one union for jobs actually performed by members of the other union. In that event, a sensible remedy would have to await negotiation between the union or unions and the carrier to eliminate the overlap and featherbedding. But I repeat — the Board’s task is to construe and apply the agreements, not to rewrite them, even to eliminate overlaps and duplications; nor is it the function of this Court to add new powers to those vested in the Board by Congress, or to impose upon the intricate and technical contracts of railway labor a new and unauthorized substantive principle.

I would reverse and remand for further proceedings in the District Court, consistent with the views expressed herein, with respect to the telegraphers’ prayer for enforcement of the Board’s award.

       This section provides:
      “The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, . . . shall be handled in the usual manner . . . but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.” 44 Stat. 578, as amended, 48 Stat. 1191, 45 U. S. C. § 153 First (i).

       Section 3 First (j) of the Act, 45 U. S. C. § 153 First (j), requires the Adjustment Board to “give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them.” (Emphasis supplied.) Prior to this case it was the policy of the various railroad unions, including the clerks’ and telegraphers’, in work-assignment disputes submitted to the Board, to refuse to give notice of and to prohibit participation in Board proceedings by anyone but the involved railroad and the petitioning union. This policy, followed by the labor members of the Board, resulted in no notice being given to the nonpetitioning union. See Whitehouse v. Illinois Cent. R. Co., 349 U. S. 366, 372. In 1959, after some courts had refuséd to enforce the Board’s awards where it had failed to notify the nonpetitioning union, see, e. g., Order of R. R. Telegraphers v. New Orleans, T. & M. R. Co., 229 F. 2d 59, cert. denied, 350 U. S. 997, the Railway Labor Executives’ Association, composed of the various railroad unions, changed this policy to the extent that notice would henceforth be given to non-petitioning unions. Yet the Railway Labor Executives’ Association prescribed a form-letter response — to be sent by the notified non-petitioning union to the Board — which disavowed any interest in the dispute and declined the opportunity to participate before the Board except in a subsequent and separate proceeding initiated by the nonpetitioning union in the event the Board's decision adversely affected its members’ jobs. The clerks’ union used this form letter to respond to the § 3 First (j) notice in the instant ease.

       The Court of Appeals’ controlling opinion is reported at 349 F. 2d 408. A prior opinion which was withdrawn is unofficially reported at 59 L. R. R. M. 2993.

       The Court of Appeals in affirming the dismissal of the telegraphers’ union’s petition for enforcement was quite correct in holding that the failure of the clerks to appear before the Board and of the Board to consider the contract between the clerks and the railroad could not be cured merely by joinder of the clerks’ union in the District Court’s enforcement proceeding. The Board had the exclusive jurisdiction to consider the clerks’ contract and any claim they might have asserted under it. At the time, the Court of Appeals had no alternative but to affirm the dismissal by the District Court, for district courts could only “enforce or set aside” the Board’s orders under §3 First (p). They could not remand cases to the Board. This was changed on June 20, 1966, by Pub. L. No. 89-456, §2 (e), 80 Stat. 209, which inserted a new provision, § 3 First (q), empowering district courts to remand proceedings to the Board. In view of the Board’s failure to consider all of the issues and the clerks’ understandable refusal to participate because of the then existing doubt as to whether they could be bound by the Board’s decision, we conclude it appropriate to use this new availability of remand to the Board.

       Among the rules of the Telegraphers' Agreement invoked in this dispute, the following are the most relevant:
      Article 1 — Scope.
      Rule 1. This agreement will govern the wages and working conditions of agents, agent-telegraphers, agent-telephoners, telegraphers, telephoners, telegrapher-clerks, telephoner-clerks, telegrapher-car distributors, ticket clerk-telegraphers, telegrapher-switch-tenders, C. T. C. telegraphers, train and tower directors, towermen, lever-men, block operators, staffmen, managers, wire chiefs, repeater chiefs, chief operators, printer mechanicians, telephone operators (except switchboard operators), teletype operators, printer operators, agents non-telegraphers, and agents non-telephoners herein listed.
      Article 2 — Positions and Rates of Pay.
      Rule 5. General Telegraph Offices, (a) Positions and rates of pay in general telegraph offices under the jurisdiction of the Superintendent Telegraph shall be as follows:
      4 Las Vegas “VG"
      Manager . 2.127
      2d chief operator-printer m[e]chn. 1.995
      3d chief operator-printer mechn. 1.995
      Telegrapher . 1.851
      R'-le 6. New Positions. The wages of new positions shall be in conformity with the wages of positions of similar kind or class in the seniority district where created.
      Article 3- — Time Allowances.
      Rule 10. Daily Guarantee. Regularly assigned employes will receive eight hours pay for each twenty-four hours, at rate of position occupied ....
      Article 6 — Seniority.
      Rule 47. Promotion, (a) Promotion shall be based on seniority and qualifications; qualifications being sufficient, seniority will prevail.
      Article 8 — General.
      Rule 62. Train Orders. No employe other than covered by this schedule and train dispatchers will be permitted to handle train orders at telegraph or telephone offices where an operator is employed, and is available, or can be promptly located, except in an emergency, in which case the telegrapher will be paid for the call.
      Rule 70. Date Effective and Change. This agreement will be effective as of January 1, 1952, and shall continue in effect until it is changed as provided herein, or under the provisions of the Railway Labor Act.

       The Court of Appeals’ opinion asserts that the Board’s rules of evidence excluded other contracts, and that the Board dealt with the case as if the clerks’ contract did not exist. There is nothing in the record which suggests that at any time, in any way, the Board excluded references to the clerks’ contract or treated it as irrelevant. If the Court of Appeals were correct as to the Board’s rules, those rules would plainly be contrary to law and commonsense evidentiary principles. The railroad’s submission to the Board, in demanding that notice be given the clerks’ union (as it was), specifically invoked the clerks’ contract, and-stated that the relief sought by the telegraphers “would abrogate the agreement negotiated between the carrier and the Clerks’ Organization . . . .”

       Actually, the Board functions in divisions, each responsible for a specified group of trades within the railroad world. § 3 First (h).

       Sections 3 First (i), (m) as amended by the Act of June 20, 1966 (80 Stat. 208). Prior to this amendment “money awards” were excluded from the scope of the quoted language.

       There are a few minor exceptions not relevant here. For example, the Board can interpret its own awards. § 3 First (m).

       In Whitehouse v. Illinois Cent. R. Co., 349 U. S. 366 (1955), this Court cautioned against analogies drawn from other industries to railroad problems: “Both its history and the interests it governs show the Railway Labor Act to be unique. 'The railroad world is like a state within a state. Its population of some three million, if we include the families of workers, has its own customs and its own vocabulary, and lives according to rules of its own making.’ Garrison, The National Railroad Adjustment Board: A Unique Administrative Agency, 46 Yale L. J. 567, 568-569.” 349 U. S., at 371.

       But cf. Carey v. Westinghouse Corp., 375 U. S. 261 (1964), in which the Court held that a union could obtain a court order to compel arbitration of a similar type of dispute, under an arbitration provision of a collective bargaining agreement between itself and the employer, despite the fact that the arbitration proceeding would not bind the other contending union.

       The Board has no jurisdiction over so-called “major” disputes which are outside the collective bargaining contract framework — for example, a dispute as to whether the contract should be changed. See Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 722-728 (1945), adhered to on rehearing, 327 U. S. 661 (1946). To the extent that resolution of such disputes is subjected to a legal structure, it is the National Mediation Board, not the Railroad Adjustment Board, which is the responsible federal agency under the Railway Labor Act.

       The Board, with its peculiar bipartisan, private composition, §§ 3 First (a)-(h), is perhaps suited to this task, but one might question whether it would be appropriate for a larger role. For instance, since each division of the Board is composed of an equal number of railroad union and carrier representatives, and makes awards by majority vote, if the union representatives on the division were split — if, for example, either union had a representative on the division who disagreed with the other union representatives on the merits of the dispute — the carrier representatives would then have controlling voting power and could in effect allocate the work to whichever union they chose.

       The two Boards are utterly different. Some of the differences are adverted to in the text, and others are suggested by nn. 7 and 8, supra. The essential difference is between a permanent institutionalized arbitrator for settling disputes arising from a contractual relationship, and an administrative agency established to implement various defined public policies specified by Congress.

       1 suppose that if this Court says that the Board has power to subject another union to the proceedings, that would end the matter. But the effectiveness of our ipse dixit would not justify it.

       Of course, the clerks’ contract may be relevant to construction of the telegraphers’ contract, under the Pitney case.

       Under the Railway Labor Act, such contractual renegotiation would be a “major” dispute, subject to the jurisdiction of the Mediation Board, not the Adjustment Board. See n. 7, supra. See also Telegraphers v. Chicago & N. W. R. Co., 362 U. S. 330 (1960), where the Court upheld the telegraphers' right to strike to compel bargaining on a proposed contract change which would have prevented the railroad from abolishing any position in existence before a certain date. The Court held this was a “major dispute” covering a legitimate subject of collective bargaining within the contemplation of the Railway Labor Act, and therefore within the anti-injunction provisions of §§ 4, 8 and 13 (c) of the Norris-LaGuardia Act, 47 Stat. 70, 72,-73 (1932), 29 U. S. C. §§ 104, 108, 113 (c). It rejected the railroad’s argument that the union’s demand did not create a legitimate “labor dispute” within Norris-LaGuardia because it sought to perpetuate “wasteful” and “unnecessary” jobs.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Douglas,

license: Public Domain

text:
    CANADA PACKERS, LTD. v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. et al.
    No. 11.
    Argued November 8-9, 1966.
    Decided December 5, 1966.

      Charles B. Myers argued the cause and filed briefs for petitioner.

      Harvey Huston argued the cause and filed a brief for respondents.

      Louis F. Claiborne, by special leave of Court, argued the cause for the United States, as amicus curiae. On the brief were Solicitor General Marshall, Assistant Attorney General Turner, Richard A. Posner and Robert B. Hummel. Leonard S. Goodman argued the cause for the Interstate Commerce Commission, as amicus curiae, urging reversal. With him on the brief was Robert W. Ginnane.

   Per Curiam.

This case concerns the power of the Interstate Commerce Commission in reparations proceedings to determine the reasonableness of a joint through international freight rate. The American railroad respondents and their connecting carriers delivered 131 cars of potash from Carlsbad and Loving, New Mexico, to petitioner’s plants in Canada. Petitioner was charged and it paid a joint through international rate which it later attacked as unreasonable in a reparations proceeding before the Commission. Finding the rate to be unreasonable, the Commission ordered reparations in the amount of the difference between the rate charged and the rate which would have been reasonable at the time. Respondents refused to pay part of this amount on the theory that it represented an alleged overcharge for the Canadian leg of the trip over which the Commission had no jurisdiction under the applicable statute. This action followed in the District Court to collect the unpaid amount. The District Court found for the petitioner, the Court of Appeals reversed, 342 F. 2d 563, and we granted certiorari, 383 U. S. 906.

The provisions of the Interstate Commerce Act apply not only to transportation within the United States but to transportation from or to any place in the United States to or from a foreign country “but only insofar as such transportation . . . takes place within the United States.” 24 Stat. 379, as amended, 49 U. S. C. § 1 (1). The Court of Appeals held that the Commission in this case was without jurisdiction to determine the reasonableness of freight rates for transportation taking place in Canada and hence was without power to order reparations with respect to the Canadian portion of the trip. The respondents, and the United States, the latter differing with the Commission in this case, take a similar view. As an original matter there might well be considerable merit in this position. But the contrary view of the Commission is one of long standing, see Black Horse Tobacco Co. v. Illinois Central R. Co., 17 I. C. C. 588 (1910), and Citizens Gas & Coke Utility v. Canadian Nat. Rys., 325 I. C. C. 527 (1965), and one which this Court has upheld on more than one occasion. News Syndicate Co. v. New York Central R. Co., 275 U. S. 179, squarely held that where a carrier performing transportation within the United States enters into a joint through international rate covering transportation in the United States and abroad, the Commission does have jurisdiction to determine the reasonableness of the joint through rate and to order the carrier performing the domestic service to pay reparations in the amount by which that rate is unreasonable. Lewis-Simas-Jones Co. v. Southern Pacific Co., 283 U. S. 654, and Great Northern R. Co. v. Sullivan, 294 U. S. 458, are in accord. The Court of Appeals and respondents would distinguish these cases, but we think the differences relied on are insubstantial. Indeed, the United States quite candidly requests that we reconsider these older cases and so narrow the powers of the Commission with respect to joint through international rates. It is not shown, however, that the long-standing construction of the statute by both the Commission and this Court has produced any particularly unfortunate consequences and Congress, which could easily change the rule, has not yet seen fit to intervene. In these circumstances, we shall not disturb the construction previously given the statute by this Court, and the decision of the Court of Appeals must be

Reversed.

Mr. Justice Douglas,

dissenting.

An Act of Congress gives the Interstate Commerce Commission jurisdiction over transportation from or to any place in the United States to or from a foreign country “but only insofar as such transportation . . . takes place within the United States.” 24 Stat. 379, as amended, 49 U. S. C. § 1 (1). How that can be read, “Whether or not such transportation . . . takes place within the United States” remains a mystery. News Syndicate Co. v. New York Central R. Co., 275 U. S. 179, and Lewis-Simas-Jones Co. v. Southern Pacific Co., 283 U. S. 654, actually decided something less. In News Syndicate there was a through rate from a point in Canada to New York City; but the carrier had failed to establish a rate from the international border to New York City. The Court refused to let the jurisdiction of the Commission be defeated in that way and allowed it to determine the reasonableness of the through rate. 275 U. S., at 187. In the Lewis-Simas-Jones case the Court also emphasized that no tariff applicable “to the American part of the transportation of an international shipment on a through bill of lading” had been established “as required by the Act.” 283 U. S., at 663. Those cases were explained in Great Northern R. Co. v. Sullivan, 294 U. S. 458, 462.

“In each, shipments moved from an adjacent country into the United States on through rates made by joint action of the participating foreign and American carriers. The American carrier, having violated the Act by failure to file any tariff to cover its part of the transportation, collected freight charges found to be excessive and, as one of two or more joint tort-feasors, was held liable to the extent that the charges it exacted were in excess of what the commission ascertained to be just and reasonable. But here the charges collected were not excessive, and confessedly the same amounts lawfully might have been collected without injury or damage to plaintiff if only the connecting carriers had imposed the charges by means of ‘joint’ instead of the ‘combination’ through rates that they did establish.”

In the present case rates from Carlsbad and Loving, New Mexico, to the Canadian border points had been established. 300 I. C. C. 87. The issues presented in News Syndicate and Lewis-Simas-Jones are therefore not offered here. Stare decisis is an important principle in dealing with statutory law, though even so we have not always placed “on the shoulders of Congress the burden of the Court’s own error.” Girouard v. United States, 328 U. S. 61, 70. As we said in Toucey v. New York Life Ins. Co., 314 U. S. 118, 140-141:

“There is no occasion here to regard the silence of Congress as more commanding than its own plainly and unmistakably spoken words. This is not a situation where Congress has failed to act after having been requested to act or where the circumstances are such that Congress would ordinarily be expected to act. ... To find significance in Congressional nonaction under these circumstances is to find significance where there is none.”

And see Helvering v. Hallock, 309 U. S. 106, 119-122. Compare Mabee v. White Plains Publishing Co., 327 U. S. 178, 185. Nor do we have here a precedent “around which, by the accretion of time and the response of affairs, substantial interests have established themselves.” Helvering v. Hallock, supra, at 119.

Moreover, we need not be slaves to a precedent by treating it as standing for more than it actually decided nor by subtly eroding it in sophisticated ways. See Radin, The Trail of the Calf, 32 Cornell L. Q. 137, 143 (1946). It is enough that we do not approve “of the doctrinal generalization which the previous court used” {ibid.) and confine the precedent to what it actually decided. Certainly we should not extend the range of a precedent beyond its generating reason, especially when another policy, here the plain words of an Act of Congress, will be impaired by doing so.

I would affirm this judgment.

       “The House of Lords no longer regards the reasoning- in previous cases as sacrosanct. Witness its striking departure in Public Trustee v. Inland Revenue Commissioners [[1960] A. C. 398] and Midland Silicones Ltd. v. Scruttons Ltd. [[1962] A. C. 446], Those cases show that the House will not treat as absolutely binding any line of reasoning in a previous case which was not necessary to the decision: but will regard itself as at liberty to depart from it if convinced that it was wrong.” Penn-Texas Corp. v. Murat Anstalt [1964] 2 Q. B. 647, 661.
      And see [1966] C. L. Y. 9921:
      “The Lord Chancellor made the following statement on July 26, 1966, on behalf of himself and the Lords of Appeal in Ordinary:
      “Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
      “Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
      “In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
      “This announcement is not intended to affect the use of precedent elsewhere than in this House.”
      See generally Cross, Stare Decisis in Contemporary England, 82 L. Q. Rev. 203 (1966).

       We have not been reluctant to reverse our own erroneous interpretation of an Act of Congress. See, e. g., Helvering v. Hallock,
        309 U. S. 106; Nye v. United States, 313 U. S. 33; Toucey v. New York Life Ins. Co., 314 U. S. 118; Commissioner v. Estate of Church, 335 U. S. 632; James v. United States, 366 U. S. 213; Smith v. Evening News Assn., 371 U. S. 195; Local No. 438 Construction & General Laborers' Union v. Curry, 371 U. S. 542, 552; Fay v. Noia, 372 U. S. 391, 435.


author: Per Curiam.

text:
    WATKINS v. CONWAY.
    No. 65.
    Argued November 9, 1966.
    Decided December 5, 1966.

      William G. Vance argued the cause for appellant. With him on the brief was Emmet J. Bondurant II.

      Martin McFarland argued the cause and filed a brief for appellee.
   Per Curiam.

This litigation began when appellant Watkins brought a tort action against Conway in a circuit court of Florida. On October 5, 1955, that court rendered a $25,000 judgment for appellant. Five years and one day later, appellant sued upon this judgment in a superior court of Georgia. Appellee raised § 3-701 of the Georgia Code as a bar to the proceeding:

“Suits upon foreign judgments. — All suits upon judgments obtained out of this State shall be brought within five years after such judgments shall have been obtained.”

The Georgia trial court gave summary judgment for appellee. In so doing, it rejected appellant’s contention that § 3-701, when read against the longer limitation period on domestic judgments set forth in Ga. Code §§ 110-1001, 110-1002 (1935), was inconsistent with the Full Faith and Credit and Equal, Protection Clauses of the Federal Constitution. The Georgia Supreme Court affirmed, also rejecting appellant’s constitutional challenge to | 3-701. 221 Ga. 374, 144 S. E. 2d 721 (1965). We noted probable jurisdiction under 28 U. S. C. 1 1257 (2). 383 U. S. 941 (1966).

Although appellant lays his claim under two constitutional provisions, in reality his complaint is simply that Georgia has drawn an impermissible distinction between foreign and domestic judgments. He argues that the statute is understandable solely as a reflection of Georgia’s desire to handicap out-of-state judgment creditors. If appellant’s analysis of the purpose and effect of the statute were correct, we might well agree that it violates the Federal Constitution. For the decisions of this Court which appellee relies upon do not justify the discriminatory application of a statute of limitations to foreign actions.

But the interpretation which the Georgia courts have given § 3-701 convinces us that appellant has misconstrued it. The statute bars suits on foreign judgments only if the plaintiff cannot revive his judgment in the State where it was originally obtained. For the relevant date in applying § 3-701 is not the date of the original judgment, but rather it is the date of the latest revival of the judgment. Fagan v. Bently, 32 Ga. 534 (1861); Baty v. Holston, 108 Ga. App. 359, 133 S. E. 2d 107 (1963). In the case at bar, for example, all appellant need do is return to Florida and revive his judgment. He can then come back to Georgia within five years and file suit free of the limitations of § 3-701.

It can be seen, therefore, that the Georgia statute has not discriminated against the judgment from Florida. Instead, it has focused on the law of that State. If Florida had a statute of limitations of five years or less on its own judgments, the appellant would not be able to recover here. But this disability would flow from the conclusion of the Florida Legislature that suits on Florida judgments should be barred after that period. Georgia’s construction of § 3-701 would merely honor and give effect to that conclusion. Thus, full faith and credit is insured, rather than denied, the law of the judgment State. Similarly, there is no denial of equal protection in a scheme that relies upon the judgment State’s view of the validity of its own judgments. Such a scheme hardly reflects invidious discrimination'.

Affirmed.

Mr. Justice Douglas dissents.

       The case most directly in point, M‘Elmoyle v. Cohen, 13 Pet. 312, upheld the Georgia statute with which we deal today. But the parties in that case did not argue the statute’s shorter limitation for foreign judgments as the ground of its invalidity. Instead, the issue presented to this Court concerned the power of the States to impose any statute of limitations upon foreign judgments. See argument for plaintiff, 13 Pet., at 313-320. The language of Mr. Justice Wayne's opinion — “may not the law of a state fix different times for barring the remedy in a suit upon a judgment of another state, and for those of its own tribunals,” 13 Pet., at 328 — must be read against this argument. And, of course, that opinion cannot stand against an equal-protection claim, since it was written nearly 30 years before the Fourteenth Amendment was adopted.
      Neither of the cases cited by the Georgia Supreme Court dictates the result of this case. The first, Metcalf v. Watertown, 153 U. S. 671, involved a Wisconsin statute which provided a shorter limitation for foreign, as opposed to domestic, judgments. But the holding of the case was merely that this statute should be construed as placing the same limitation on the judgment of a federal court sitting in Wisconsin as would apply to a judgment of a Wisconsin state court. The other precedent cited by the court below, Great Western Tel. Co. v. Purdy, 162 U. S. 329, dealt with an Iowa statute of limitations on judgments that placed the same limitation on orders of foreign and domestic courts.

       The Florida statute of limitations on domestic judgments is 20 years. Fla. Stat. Ann. §95.11 (1) (1960). Thus, it appears that appellant still has ample time to revive his judgment and bring it back to Georgia. See Massey v. Pineapple Orange Co., 87 Fla. 374, 100 So. 170 (1924); Spurway v. Dyer, 48 F. Supp. 255 (D. C. S. D. Fla. 1942). Moreover, appellant can obtain substituted service of process over appellee in his revival proceeding. Fla. Stat. Ann. §48.01 (9) (1943).
      The Florida procedure for reviving judgments is similar to that of Alabama — Ala. Code, Tit. 7, § 574 (1960) — which was held in Baty v. Holston, 108 Ga. App. 359, 133 S. E. 2d 107 (1963), to revive a foreign judgment under § 3-701.

       Such a short statute of limitations for domestic judgments is by no means a matter of mere speculation. See 2 Freeman, The Law of Judgments §1076 (5th ed. 1925).

       If the appellant held a judgment from a State which did not consider its judgments to become dormant, so that no revival proceeding could be brought, we would be faced with a different case. See Frank v. Wolf, 17 Ga. App. 468, 87 S. E. 697 (1916).


text:
    LONG v. DISTRICT COURT OF IOWA in and for LEE COUNTY.
    No. 77.
    Argued November 9, 1966.
    Decided December 5, 1966.

      Ronald L. Carlson, by appointment of the Court, 383 U. S. 956, argued the cause and filed briefs for petitioner.

      Don R. Bennett, Assistant Attorney General of Iowa, argued the cause for respondent. With him on the brief was Lawrence F. Scalise, Attorney General.
   Per Curiam.

Petitioner was convicted of larceny and sentenced on October 21, 1963, to a term not to exceed five years. This conviction was affirmed on appeal to the Supreme Court of Iowa (State v. Long, 256 Iowa 1304, 130 N. W. 2d 663 (1964)), and petitioner is currently serving his sentence in the state penitentiary. On January 13, 1965, petitioner sought a writ of habeas corpus in the District Court of Iowa, Lee County, and contended, inter alia, that he had been denied counsel at the preliminary hearing and that he himself had been incompetent at the time. After an evidentiary hearing at which petitioner was not afforded the assistance of court-appointed counsel, the District Court found against petitioner on the facts of his claims. Petitioner thereupon applied to the District Court for appointment of counsel and for a free transcript of the habeas corpus proceeding, for use on appeal. The District Court denied these motions on the following ground: “Habeas corpus being a civil action there is no provision in the law for the furnishing of a transcript without the payment of fee, or for the appointment-of counsel.” Petitioner sought certiorari to review this decision from the Supreme Court of Iowa. Certiorari was denied without opinion by that court. On petition for a writ of certiorari to the Supreme Court of Iowa, this Court granted the writ limited solely to the refusal to furnish petitioner, an indigent, with a transcript of the habeas corpus proceeding, for purpose of appeal.

The judgment below must be reversed. The State properly concedes that under our decisions in Smith v. Bennett, 365 U. S. 708 (1961), and Lane v. Brown, 372 U. S. 477 (1963), “to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws.” Smith v. Bennett, supra, at 709. We specifically held in Smith that having established a post-conviction procedure, a State cannot condition its availability to an indigent upon any financial consideration. And we held in Lane that the same rule applies to protect an indigent against a financial obstacle to the exercise of a state-created right to appeal from an adverse decision in a post-conviction proceeding.

In Lane v. Brown, supra, at 483, the Court reaffirmed the fundamental principle of Griffin v. Illinois, 351 U. S. 12, 19 (1956), that “Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” The Court in Lane went on to observe that Smith had established “that these principles were not to be limited to direct appeals from criminal convictions, but extended alike to state postconviction proceedings.” 372 U. S., at 484. See also Eskridge v. Washington State Board, 357 U. S. 214 (1958); Burns v. Ohio, 360 U. S. 252 (1959); Draper v. Washington, 372 U. S. 487 (1963).

The State suggests that there may be alternative ways of preparing, for purposes of appeal, an account of the relevant proceeding at the trial level. Cf. Draper v. Washington, supra. In the present case, a transcript is available and could easily have been furnished. We need not consider a possible situation where a transcript cannot reasonably be made available and adequate alternatives are made available by the State. Accordingly, the judgment below must be reversed and the cause remanded to the Supreme Court of Iowa for further proceedings not inconsistent with this opinion.

Reversed and remanded.

       As to the claim of lack of counsel at the preliminary hearing, the State now concedes that petitioner was not in fact represented at that time (although the District Court found to the contrary). Petitioner alleged in his petition for habeas corpus that a guilty plea obtained at the preliminary hearing was introduced as an admission at his criminal trial. The State concedes that if this is true, petitioner “probably is entitled to relief in habeas corpus under White v. Maryland, 373 U. S. 59.” The Attorney General of Iowa has ruled that White is applicable to preliminary hearings in Iowa because guilty pleas, if made at that time, may later be used as admissions of guilt. 1964 Opinions of the Attorney General of Iowa 160 (October 5, 1964).

       The court’s order reads: “Petition for certiorari filed, considered, and denied. See in this connection, Waldon v. District Court of Lee County, Iowa, 130 N. W. 2d 728.” The Waldon case held only that a State need not provide appointed counsel on appeal from the denial of habeas corpus; it does not so much as refer to the transcript problem, to which this Court limited the grant of certiorari in this case.

       Petitioner’s notice of appeal to the Supreme Court of Iowa was timely and properly filed. His appeal is pending before that court, and disposition has been stayed until the outcome of this preliminary case.


author: Per Curiam. Mr. Justice Harlan,

text:
    WALKER v. SOUTHERN RAILWAY CO.
    No. 89.
    Argued November 10, 1966.
    Decided December 5, 1960.

      J. Nat Hamrick argued the cause for petitioner. With him on the brief was Fred D. Hamrick.

      Jerome Ackerman argued the cause and filed a brief for respondent.
   Per Curiam.

Under Moore v. Illinois Central Railroad Co., 312 U. S. 630, decided in 1941, a discharged railroad employee aggrieved by the discharge may either (1) pursue his remedy under the administrative procedures established by an applicable collective bargaining agreement subject to the Railway Labor Act, and his right of review before the National Railroad Adjustment Board, or (2) if he accepts his discharge as final, bring an action at law in an appropriate state court for money damages if the state courts recognize such a claim. See also Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239, 244; Transcontinental & Western Air, Inc. v. Koppal, 345 U. S. 653. The question in this case is whether those decisions should be overruled in light of Republic Steel Corp. v. Maddox, 379 U. S. 650, decided in 1965.

Petitioner was a yard fireman in the employ of respondent, the railroad. He sued in a North Carolina court on a claim that respondent had unlawfully discharged him on May 29, 1957, in violation of its collective bargaining agreement with the Brotherhood of Locomotive Firemen and Enginemen. The action was removed by respondent to the Federal District Court by reason of diversity of citizenship. The District Court overruled respondent’s challenge to its jurisdiction, citing Moore, Slocum, and Koppal, and entered a judgment for damages in petitioner’s favor. 237 F. Supp. 278. The Court of Appeals for the Fourth Circuit reversed, holding that Maddox, decided after the entry of the District Court judgment, required that petitioner first exhaust his administrative remedies. 354 F. 2d 950. Since our opinion in Maddox expressly stated that “we do not mean to overrule [Moore v. Illinois Central R. Co.] within the field of the Railway Labor Act” but that “ [consideration of such action should properly await a case presented” under that Act, 379 U. S., at 657, n. 14, we granted certiorari, 384 U. S. 926. We reverse.

Maddox presented the question whether contract grievance procedures provided in a collective bargaining agreement subject to the Labor Management Relations Act, 1947, and culminating in binding arbitration might be sidestepped in favor of a lawsuit, in light of the federal policy reflected in the LMRA of favoring such agreed-upon contract grievance procedures as the preferred method for settling disputes. The action was brought in an Alabama state court by an employee of the Republic Steel Corporation for severance pay allegedly owed him under the terms of a collective bargaining agreement which contained such a grievance procedure. We held that contract grievance procedures voluntarily incorporated by the parties in collective bargaining agreements subject to the LMRA, unless specified by the parties to be nonexclusive, must be exhausted before direct legal redress may be sought by the employee.

Provision for arbitration of a discharge grievance, a minor dispute, is not a matter of voluntary agreement under the Railway Labor Act; the Act compels the parties to arbitrate minor disputes before the National Railroad Adjustment Board established under the Act. Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U. S. 30. Both at the time of petitioner’s alleged discharge and at the time he brought his lawsuit, there was considerable dissatisfaction with the operations of the National Railroad Adjustment Board and with some of the statutory features. Congress initiated an inquiry and found that among other causes for dissatisfaction, “railroad employees who have grievances sometimes have to wait as long as 10 years or more before a decision is rendered [by the Board] on their claim”; for example, “the First Division [which has jurisdiction over disputes involving yard service employees of petitioner’s class] . . . has never been current in its work, [and has] a backlog of approximately 7% years . . . .” H. R. Rep. No. 1114, 89th Cong., 1st Sess., at 3, 5; S. Rep. No. 1201, 89th Cong., 1st Sess., at 2. The Congress also found that “if an employee receives an award in his favor from the Board, the railroad affected may obtain judicial review of that award by declining to comply with it. If, however, an employee fails to receive an award in his favor, there is no means by which judicial review may be obtained.” H. R. Rep., supra, at 15. S. Rep., supra, at 3.

In consequence, Congress enacted Public Law 89-456, 80 Stat. 208, effective June 20, 1966, which drastically revises the procedures in order to remedy the defects. Of course the new procedures were not available to petitioner, and his case is governed by Moore, Slocum, and Koppal. The contrast between the administrative remedy before us in Maddox and that available to petitioner persuades us that we should not overrule those decisions in his case.

The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Harlan,

whom Mr. Justice Stewart and Mr. Justice White join,

dissenting.

I dissent because I believe this Court’s decision in Republic Steel Corp. v. Maddox, 379 U. S. 650, requires the explicit overruling of Moore v. Illinois Central R. Co., 312 U. S. 630, a case that has already been all but completely vitiated by subsequent decisions.

In Moore, a railroad trainman brought an action for damages based upon an alleged wrongful discharge without first exhausting administrative remedies. Federal jurisdiction was invoked on the ground of diversity; at that time an employment contract under the Railway Labor Act was thought to be governed, like ordinary contracts, by state law. The applicable law in that case — that of Mississippi — did not require exhaustion of remedies. The Court held that nothing in the Railway Labor Act required a contrary result.

The premise of the Moore decision, that state law was applicable to this type of labor contract, was removed in a series of decisions holding that labor contracts governed by the Labor Management Relations Act, 1947, and the Railway Labor Act are subject to federal substantive law, not state law. Textile Workers v. Lincoln Mills, 353 U. S. 448; International Assn. of Machinists v. Central Airlines, Inc., 372 U. S. 682. In Maddox, supra, the doctrine of exhaustion of remedies was declared by this Court to be a part of this federal labor law: “As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.” 379 U. S., at 652. Strong policy arguments were adduced in Maddox to support this general rule. See 379 U. S., at 652-653; Cox, Rights Under a Labor Agreement, 69 Harv. L. Rev. 601, 647-652 (1956).

I can see no reason why this rule should be thought inapplicable to cases under the Railway Labor Act. Although the Maddox decision did not explicitly cover such cases, the single dissenting Justice recognized that the Court, “. . . while declining expressly to overrule . . . [Moore and its progeny] in this case, has raised the overruling axe so high that its falling is just about as certain as the changing of the seasons.” 379 U. S., at 667. The only two courts of appeals to deal with the impact of Maddox on Moore have concurred in declaring that exhaustion of remedies is now required in the railway labor field. Walker v. Southern R. Co., 354 F. 2d 950 (C. A. 4th Cir.); Neal v. System Bd. of Adjustment, 348 F. 2d 722 (C. A. 8th Cir.). A Pennsylvania appellate court has refused to permit a suit like this one in state court on the ground that since Maddox, “We cannot see how the Moore case is still effective to permit a recovery in a state court suit in this case.” Beebe v. Union R. Co., 205 Pa. Super. 146, 153, 208 A. 2d 16, 20. Other state courts have reached the same conclusion. Buchanan v. St. Louis Southwestern R. Co., 400 S. W. 2d 362; Caffery v. New York Central R. Co., 24 App. Div. 2d 1075, 265 N. Y. S. 2d 742.

The rule of exhaustion of contractual and administrative remedies is a salutary one in an area in which specialization is important and the expertise of certain arbitral bodies is recognized. In Whitehouse v. Illinois Central R. Co., 349 U. S. 366, 371, the Court noted that “ ‘The railroad world is like a state within a state. Its population of some three million, if we include the families of workers, has its own customs and its own vocabulary, and lives according to rules of its own making.' Garrison, The National Railroad Adjustment Board: A Unique Administrative Agency, 46 Yale L. J. 567, 568-569.” It is true of course, as the Court observes, that in the Labor Managment Relations Act cases arbitration is imposed contractually while under the Railway Labor Act arbitration by the Adjustment Board is mandatory for all “minor” contractual disputes. If anything, this distinction weighs in favor of respecting Congress’ determination that disputes as to proper practices under a railroad labor contract be settled — at least initially — through direct negotiation between the affected parties and, that failing, by Adjustment Board arbitration.

The Court’s only rationale for refusing to take the step of formally overruling Moore at this time, a step to which current precedent, logic, and policy all so persuasively point, is that there has apparently been some dissatisfaction with the speed of the Board’s procedures and with the statute’s scope of appeal. This dissatisfaction is properly the subject of congressional concern. It is in my view, however, unsound for this Court to make the question whether exhaustion of remedies applies depend upon our decision as to how effectively we think the Board is functioning. It should be enough, as a unanimous Court said just last Term, that Congress “. . . invested the Adjustment Board with the broad power to arbitrate grievances and plainly intended that interpretation of these controversial provisions should be submitted for the decision of railroad men, both workers and management, serving on the Adjustment Board with their long experience and accepted expertise in this field.” Gunther v. San Diego & A. E. R. Co., 382 U. S. 257, 261-262. The Court there stated: “This Court time and again has emphasized and re-emphasized that Congress intended minor grievances of railroad workers to be decided finally by the Railroad Adjustment Board.” Id., at 263.

We need not even go back to last Term for such an expression of confidence in the workings of the Railroad Adjustment Board as the central organ of Railway Labor Act contract interpretation. In today’s decision in Transportation-Communication Employees Union v. Union Pacific R. Co., ante, p. 157, the Court holds that the jurisdiction of the Board extends to settlement of tripartite work-assignment disputes. “The railroad, the employees, and the public, for all of whose benefits the Railway Labor Act was written,” the Court says, “are entitled to have a fair, expeditious hearing to settle disputes of this nature.” Ante, at 162. To meet arguments that the Board is not capable of dealing with such complex problems, the Court rightly notes that the Board can “. . . with its experience and common sense, handle this entire dispute in a satisfactory manner in a single proceeding.” Ante, at 165.

I can see no reason why the Board, for purposes of the simple run-of-the-mill contract dispute raised in the present case, is suddenly deemed so incapable of adequately handling the question that the familiar labor law doctrine of exhaustion of remedies is ignored in this instance.

I would affirm the judgment of the Court of Appeals.


text:
    NEW ENGLAND MOTOR RATE BUREAU, INC., et al. v. UNITED STATES et al.
    No. 591.
    Decided December 5, 1966.

      Peter T. Beardsley, R. Edwin Brady, Bryce Rea, Jr., Guy H. Postell, John W. McFadden, Harry C. Ames, Roland Rice, Homer S. Carpenter, John 8. Fessenden and Richard R. Sigmon for appellants.

      Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane and Leonard S. Goodman for the United States et al.

      William Q. Keenan for Railway Express Agency, Inc., and Arthur A. Arsham for National Small Shipments Traffic Conference, Inc., et al., intervenors below.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    CADY et al. v. MISSOURI ex rel. STATE HIGHWAY COMMISSION OF MISSOURI.
    No. 613.
    Decided December 5, 1966.

      Elwyn L. Cady, Jr., for appellants.

      Robert L. Ryder and Bruce A. Ring for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    MINISTERS LIFE & CASUALTY UNION v. HAASE, COMMISSIONER OF INSURANCE, et al.
    No. 634.
    Decided December 5, 1966.

      Erwin N. Griswold for appellant.

      Bronson C. La Follette, Attorney General of Wisconsin, and E. Weston Wood, Assistant Attorney General, for appellees.

      Thomas C. Lynch, Attorney General, and H. Warren Siegel, Deputy Attorney General, for the State of California, as amicus curiae, in support of appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

Mr. Justice Harlan and Mr. Justice Stewart are of the opinion that probable jurisdiction should be noted and the case set for oral argument.

Mr. Justice Fortas took no part in the consideration or decision of this case.


author: Mr. Chief Justice Warren Mr. Justice Brennan,

text:
    LEWIS v. UNITED STATES.
    No. 36.
    Argued October 17, 1966.
    Decided December 12, 1966.

      S. Myron Klarfeld argued the cause and filed a brief for petitioner.

      Ralph S. Spritzer argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Nathan Lewin, Beatrice Rosenberg and Sidney M. Glazer.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

The question for resolution here is whether the Fourth Amendment was violated when a federal narcotics agent, by misrepresenting his identity and stating his willingness to purchase narcotics, was invited into petitioner’s home where an unlawful narcotics transaction was consummated and the narcotics were thereafter introduced at petitioner’s criminal trial over his objection. We hold that under the facts of this case it was not. Those facts are not disputed and may be briefly stated as follows:

On December 3, 1964, Edward Cass, an undercover federal narcotics agent, telephoned petitioner’s home to inquire about the possibility of purchasing marihuana. Cass, who previously had not met or dealt with petitioner, falsely identified himself as one “Jimmy the Pollack [sic]” and stated that a mutual friend had told him petitioner might be able to supply marihuana. In response, petitioner said, “Yes. I believe, Jimmy, I can take care of you,” and then directed Cass to his home where, it was indicated, a sale of marihuana would occur. Cass drove to petitioner’s home, knocked on the door, identified himself as “Jim,” and was admitted. After discussing the possibility of regular future dealings at a discounted price, petitioner led Cass to a package located on the front porch of his home. Cass gave petitioner $50, took the package, and left the premises. The package contained five bags of marihuana. On December 17, 1964, a similar transaction took place, beginning with a phone conversation in which Cass identified himself as “Jimmy the Pollack” and ending with an invited visit, by Cass to petitioner’s home where a second sale of marihuana occurred. Once again, Cass paid petitioner $50, but this time he received in return a package containing six bags of marihuana.

Petitioner was arrested on April 27, 1965, and charged by a two-count indictment with violations of the narcotics laws relating to transfers of marihuana. 26 U. S. C. § 4742 (a). A pretrial motion to suppress as evidence the marihuana and the conversations between petitioner and the agent was denied, and they were introduced at the trial. The District Court, sitting without a jury, convicted petitioner on both counts and imposed concurrent five-year penitentiary sentences. The Court of Appeals for the First Circuit affirmed, 352 F. 2d 799, and we granted certiorari, 382 U. S. 1024.

Petitioner does not argue that he was entrapped, as he could not on the facts of this case; nor does he contend that a search of his home was made or that anything other than the purchased narcotics was taken away. His only contentions are that, in the absence of a warrant, any official intrusion upon the privacy of a home constitutes a Fourth Amendment violation and that the fact the suspect invited the intrusion cannot be held a waiver when the invitation was induced by fraud and deception.

Both petitioner and the Government recognize the necessity for some undercover police activity and both concede that the particular circumstances of each case govern the admissibility of evidence obtained by stratagem or deception. Indeed, it has long been acknowledged by the decisions of this Court, see Grimm v. United States, 156 U. S. 604, 610 (1895), and Andrews v. United States, 162 U. S. 420, 423 (1896), that, in the detection of many types of crime, the Government is entitled to use decoys and to conceal the identity of its agents. The various protections of the Bill of Rights, of course, provide checks upon such official deception for the protection of the individual. See, e. g., Massiah v. United States, 377 U. S. 201 (1964); Trupiano v. United States, 334 U. S. 699 (1948).

Petitioner argues that the Government overstepped the constitutional bounds in this case and places principal reliance on Gouled v. United States, 255 U. S. 298 (1921). But a short statement of that case will demonstrate how misplaced his reliance is. There, a business acquaintance of the petitioner, acting under orders of federal officers, obtained entry into the petitioner’s office by falsely representing that he intended only to pay a social visit. In the petitioner’s absence, however, the intruder secretly ransacked the office and seized certain private papers of an incriminating nature. This Court had no difficulty concluding that the Fourth Amendment had been violated by the secret and general ransacking, notwithstanding that the initial intrusion was occasioned by a fraudulently obtained invitation rather than by force or stealth.

In the instant case, on the other hand, the petitioner invited the undercover agent to his home for the specific purpose of executing a felonious sale of narcotics. Petitioner’s only concern was whether the agent was a willing purchaser who could pay the agreed price. Indeed, in order to convince the agent that his patronage at petitioner’s home was desired, petitioner told him that, if he became a regular customer there, he would in the future receive an extra bag of marihuana at no additional cost; and in fact petitioner did hand over an extra bag at a second sale which was consummated at the same place and in precisely the same manner. During neither of his visits to petitioner’s home did the agent see, hear, or take anything that was not contemplated, and in fact intended, by petitioner as a necessary part of his illegal business. Were we to hold the deceptions of the agent in this case constitutionally prohibited, we would come near to a rule that the use of undercover agents in any manner is virtually unconstitutional per se. Such a rule would, for example, severely hamper the Government in ferreting out those organized criminal activities that are characterized by covert dealings with victims who either cannot or do not protest. A prime example is provided by the narcotics traffic.

The fact that the undercover agent entered petitioner’s home does not compel a different conclusion. Without question, the home is accorded the full range of Fourth Amendment protections. See Amos v. United States, 255 U. S. 313 (1921); Harris v. United States, 331 U. S. 145, 151, n. 15 (1947). But when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant. Of course, this does not mean that, whenever entry is obtained by invitation and the locus is characterized as a place of business, an agent is authorized to conduct a general search for incriminating materials; a citation to the Gouled case, supra, is sufficient to dispose of that contention.

Finally, petitioner also relies on Rios v. United States, 364 U. S. 253 (1960); Jones v. United States, 362 U. S. 257 (1960); McDonald v. United States, 335 U. S. 451 (1948); and Johnson v. United States, 333 U. S. 10 (1948). But those cases all dealt with the exclusion of evidence that had been forcibly seized against the suspects’ desires and without the authorization conferred by search warrants. A reading of them will readily demonstrate that they are inapposite to the facts of this case; and, in this area, each case must be judged on its own particular facts. Nor is Silverman v. United States, 365 U. S. 505 (1961), in point; for there, the conduct proscribed was that of eavesdroppers, unknown and unwanted intruders who furtively listened to conversations occurring in the privacy of a house. The instant case involves no such problem; it has been well summarized by the Government at the conclusion of its brief as follows:

“In short, this case involves the exercise of no governmental power to intrude upon protected premises; the visitor was invited and willingly admitted by the suspect. It concerns no design on the part of a government agent to observe or hear what was happening in the privacy of a home; the suspect chose the location where the transaction took place. It presents no question of the invasion of the privacy of a dwelling; the only statements repeated were those that were willingly made to the agent and the only things taken were the packets of marihuana voluntarily transferred to him. The pretense resulted in no breach of privacy; it merely encouraged the suspect to say things which he was willing and anxious to say to anyone who would be interested in purchasing marihuana.”

Further elaboration is not necessary. The judgment is

Affirmed.

[For opinion of Douglas, J., dissenting, see post, p. 340.]

Mr. Justice Brennan,

with whom Mr. Justice Fortas joins,

concurring.

While I concur in the Court’s judgment, I vote to affirm solely on the reasoning on which the Court ultimately relies, namely that petitioner’s apartment was not an area protected by the Fourth Amendment as related to the transactions in the present case.

The Fourth Amendment protects against governmental intrusion upon “the sanctity of a man’s home and the privacies of life.” Boyd v. United States, 116 U. S. 616, 630. However, the occupant can break the seal of sanctity and waive his right to privacy in the premises. Plainly he does this to the extent that he opens his home to the transaction of business and invites anyone willing to enter to come in to trade with him. When his customer turns out to be a government agent, the seller cannot, then, complain that his privacy has been invaded so long as the agent does no more than buy his wares. Thus the corner grocery with the living quarters in the rear would not be protected with respect to the area set aside for the purchase of groceries, although the living quarters to which shoppers are not privy retain the constitutional immunity. Cf. Wong Sun v. United States, 371 U. S. 471.

The petitioner in this case opened his apartment for the conduct of a business, the sale of narcotics; the agent, in the same manner as any private person, entered the premises for the very purpose contemplated by the occupant and took nothing away except what would be taken away by any willing purchaser. There was therefore no intrusion upon the “sanctity” of petitioner’s home or the “privacies of life.”

       In the illegal narcotics trade, an average “bag” of marihuana contains approximately five grams of marihuana. The five bags transferred to the agent by petitioner, however, contained a quantity of marihuana measuring 31.16 grams.

       The six bags transferred in this second transaction contained 40.34 grams of marihuana.

       Compare Sherman v. United States, 356 U. S. 369 (1958), and Sorrells v. United States, 287 U. S. 435 (1932). See generally Mikell, The Doctrine of Entrapment in the Federal Courts, 90 U. Pa. L. Rev. 245 (1942).

       In oral argument before this Court, counsel for petitioner conceded that information obtained by the agent in the course of his general undercover investigation, together with the subject matter of the first telephone conversation between the agent and petitioner, provided probable cause for believing that a narcotics offense would be committed in petitioner’s home and, therefore, would have supported the issuance of a search warrant. According to counsel, the agent’s misrepresentations would not have vitiated a magistrate’s determination of probable cause. Counsel further suggested that, if the agent had arrested petitioner at the latter’s home and then had conducted a search incidental to the arrest, no constitutional problems would be presented.

       Former Chief Justice Hughes commented as follows upon the use of official deception in combating criminal activity:
      “Artifice and stratagem may be employed to catch those engaged in criminal enterprises. . . . The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law.” Sorrells v. United States, 287 U. S. 435, 441-442 (1932).

       “Particularly, in the enforcement of vice, liquor or narcotics laws, it is all but impossible to obtain evidence for prosecution save by the use of decoys. There are rarely complaining witnesses. The participants in the crime enjoy themselves. Misrepresentation by a police officer or agent concerning the identity of the purchaser of illegal narcotics is a practical necessity. . . . Therefore, the law must attempt to distinguish between those deceits and persuasions which are permissible and those which are not.” Model Penal Code §2.10, comment, p. 16 (Tent. Draft No. 9, 1959).
      See also Donnelly, Judicial Control of Informants, Spies, Stool Pigeons and Agent Provocateurs, 60 Yale L. J. 1091, 1094 (1951); Note, 73 Harv. L. Rev. 1333, 1338-1339 (1960).