author:
Mr. Justice Powell
      Mr. Justice Douglas,
      Mr. Justice Marshall,

text:
    MICHIGAN v. PAYNE
    No. 71-1005.
    Argued February 22, 1973
    Decided May 21, 1973
    Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 58. Marshall, J., filed a dissenting opinion, in Part III of which Stewart, J., joined, post, p. 59.

      John A. Smietanka argued the cause for petitioner. With him on the briefs were Frank J. Kelley, Attorney General of Michigan, Robert A. Derengoski, Solicitor General, and Ronald J. Taylor.

      James R. Neuhard argued the cause for respondent. With him on the brief was Arthur J. Tarnow.

   Mr. Justice Powell

delivered the opinion of the Court.

A writ of certiorari was granted in this case, 409 U. S. 911 (1972), to decide whether the due process holding of North Carolina v. Pearce, 395 U. S. 711, 723-726 (1969), is to be given retroactive effect. For the reasons that follow, we hold today that this decision is nonretroactive.

I

Respondent, Leroy Payne, pleaded guilty in a county circuit court in Michigan to a charge of assault with intent to commit murder in connection with an armed attack upon two sheriff's deputies. In March 1963 he was sentenced to a prison term of from 19 to 40 years. Several years later, respondent’s conviction and sentence were set aside when a hearing, ordered by the Michigan Court of Appeals, disclosed that his confession and subsequent guilty plea were involuntary. Following a retrial, at which he exercised his rights to trial by jury and to plead innocent, respondent again was found guilty on the same assault charge. On August 30, 1967, he was resentenced to prison from 25 to 50 years with full credit for all time served under the prior sentence. During the resentencing hearing, the judge explained that the higher sentence was “based on the nature of the crime and on the impressions which I formed of [respondent] and of the crime.”

Respondent appealed to the Michigan Court of Appeals, which affirmed his conviction and approved the higher sentence. 18 Mich. App. 42, 170 N. W. 2d 523 (1969). While the case was pending before the Michigan Supreme Court, the trial judge who had presided over respondent’s second trial was requested to submit an affidavit detailing his reasons for imposing a higher sentence. The judge’s affidavit stated that his sentencing determination was based primarily on (i) his personal belief that respondent’s attitude since the first sentencing proceeding had changed from one of regret to remorselessness, (ii) his view that respondent’s alibi defense, given under oath, was a “tissue of lies,” and (iii) his heightened opportunity to learn of the details of the crime during the three-day trial.

The Michigan Supreme Court, in a 4-to-3 decision, upheld the conviction but rejected the higher sentence as violative of the due process restrictions established in North Carolina v. Pearce, supra. 386 Mich. 84, 191 N. W. 2d 375 (1971). The court recognized that this Court had not yet decided whether Pearce applied to resentenc-ing proceedings which, as in this case, occurred prior to Pearce’s, date of decision. While declining to predict how the retroactivity question would ultimately be resolved, the Michigan Supreme Court decided to apply Pearce to the case then before it “pending clarification” by this Court. Id., at 90 n. 3, 191 N. W. 2d, at 378 n. 2. Before this Court, the State contends that Pearce should not be applied retrospectively, but that, even if applicable, the state supreme court erred in holding the higher sentence invalid under the Pearce test. Because we hold today that Pearce does not apply retroactively, we do not reach the State's second contention.

II

In Pearce, the Court emphasized that “[i]t can hardly be doubted” that, while “there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial,” it would be entirely impermissible for judges to render harsher penalties as punishment for those defendants who have succeeded in getting their convictions reversed. 395 U. S., at 723. “[VJindic-tiveness” against a defendant for having exercised his rights to appeal or to attack his conviction collaterally, the Court held, “must play no part in the sentence [a defendant] receives after a new trial.” Id., at 725. In so holding, the Court recognized that “fundamental notions of fairness embodied within the concept of due process” absolutely preclude the imposition of sentences based upon such a “ ‘retaliatory motivation.’ ” Chaffin v. Stynchcombe, ante, at 25. No “new” constitutional rule was thereby established and it cannot be questioned that this basic due process protection ar~ ticulated in Pearce is available equally to defendants resentenced before and after the date of decision in that case. On this point the parties do not disagree.

The dispute in this case centers, instead, around the “prophylactic” limitations Pearce established to guard against the possibility of vindictiveness in the resentenc-ing process. Those limitations, applicable “whenever a judge imposes a more severe sentence upon a defendant after a new trial,” 395 U. S., at 726, require that the sentencing judge’s reasons “must affirmatively appear,” and that those reasons “must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Ibid. The question here is whether these restrictions govern resentencing proceedings predating Pearce.

The contours of the retroactivity inquiry have been clearly delineated in numerous decisions over the last decade. The test utilized repeatedly by this Court to ascertain whether “new” constitutional protections in the area of criminal procedure are to be applied retroactively calls for the consideration of three criteria: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967). See also Linkletter v. Walker, 381 U. S. 618, 629, 636 (1965) ; Tehan v. Shott, 382 U. S. 406, 410-418 (1966); Johnson v. New Jersey, 384 U. S. 719, 726-727 (1966).

The two purposes for the resentencing restrictions imposed by Pearce were to ensure (i) “that vindictiveness against a defendant for having successfully attacked his first conviction . . . [would] play no part in the sentence he receives after a new trial . . .” and (ii) that apprehension of such vindictiveness would not “deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction. . . 395 U. S., at 725; Colten v. Kentucky, 407 U. S. 104, 116 (1972). The latter purpose is not pertinent to this case, since respondent was not deterred from exercising his right to challenge his first conviction. But, in any event, we think it clear that this function of the new resentencing rules could be served only in futuro: nothing in Pearce suggests that the Court contemplated that its decision might provide a ground for the untimely reopening of appeals by defendants who decided not to appeal prior to the date of decision in Pearce. See James v. Copinger, 441 F. 2d 23 (CA4 1971).

The first-articulated purpose of the Pearce rules — to protect against the possibility that actual vindictiveness will infect a resentencing proceeding — deserves closer scrutiny. Unlike the purposes underlying many of the decisions heretofore accorded retrospective application, this purpose does not implicate the “ 'fair determination’ of . . . guilt or innocence.” Roberts v. Russell, 392 U. S. 293, 294 (1968) (emphasis supplied). It does, however, involve questions touching on the “integrity” of one aspect of the judicial process. McConnell v. Rhay, 393 U. S. 2, 3 (1968). The Pearce restrictions serve to ensure that resentencing decisions will not be based on improper considerations, such as a judge's unarticulated resentment at having been reversed on appeal, or his subjective institutional interest in discouraging meritless appeals. By eliminating the possibility that these factors might occasion enhanced sentences, the Pearce prophylactic rules assist in guaranteeing the propriety of the sentencing phase of the criminal process. In this protective role, Pearce is analogous to Miranda v. Arizona, 384 U. S. 436 (1966), in which the Court established rules to govern police practices during custodial interrogations in order to safeguard the rights of the accused and to assure the reliability of statements made during those interrogations. Thus, the prophylactic rules in Pearce and Miranda are similar in that each was designed to preserve the integrity of a phase of the criminal process. Because of this similarity, we find that Johnson v. New Jersey, 384 U. S. 719 (1966), which held Miranda non-retroactive, provides considerable guidance here. See also Jenkins v. Delaware, 395 U. S. 213 (1969).

It is an inherent attribute of prophylactic constitutional rules, such as those established in Miranda and Pearce, that their retrospective application will occasion windfall benefits for some defendants who have suffered no constitutional deprivation. Miranda’s well-known warning requirements provided a protection “against the possibility of unreliable statements in every instance of in-custody interrogation,” and thereby covered many “situations in which the danger [was] not necessarily as great as when the accused is subjected to overt and obvious coercion.” Johnson v. New Jersey, supra, at 730 (emphasis supplied). Thus, had Miranda been applied retroactively, it would have required the reversal of many convictions in which no serious constitutional violation had occurred. Id., at 731. Likewise, the retroactive application of Pearce would require the repudiation of many sentences rendered under circumstances in which there was no genuine possibility that vindictiveness played a role. Judicial impropriety in the resentencing process, albeit intolerable wherever it happens, surely is not a common practice. Indeed, nothing in Pearce intimates that the Court regarded it as anything more than an infrequently appearing blemish on the sentencing process. Absent countervailing considerations rooted in the purposes underlying a new rule, this factor — that retroactive application of such broadly protective rules would occasion reversals in many instances in which no actual prejudice has been suffered — points toward a ruling of prospectivity.

Nonretroactivity is also suggested by the second similarity between Miranda and Pearce. While each created a protective umbrella serving to enhance a constitutional guarantee, neither conferred a constitutional right that had not existed prior to those decisions. The right against use of an involuntary confession long preceded Miranda just as the right to be free from fundamentally unfair sentencing considerations predated Pearce. Supra, at 50. Because these foundational rights remain available to defendants in pr e-Miranda and pr e-Pearce cases, a decision of nonretroactivity is less likely to result in the continued incarceration of those whose convictions or sentences rest on unconstitutional acts. Linkletter v. Walker, 381 U. S., at 640 (Black, J., dissenting).

Of course, the question of the impact of particular decisions on the reliability and fairness of any aspect of a criminal proceeding is inherently a matter of balancing “probabilities.” Johnson v. New Jersey, 384 U. S., at 729; Adams v. Illinois, 405 U. S. 278, 281 (1972). Yet in view of the fact that, if retroactive, Pearce would apply to innumerable eases in which no hint of vindictiveness appears, coupled with the consideration that due process claims may always be made in those prior cases in which some evidence of retaliatory motivation exists, we have little doubt that the “probabilities” in this case preponderate in favor of a ruling of nonretroactivity.

Although the remaining factors — reliance and burden on the administration of justice — have been regarded as having controlling significance “only when the purpose of the rule in question did not clearly favor either retroac-tivity or prospectivity,” Desist v. United States, 394 U. S. 244, 251 (1969), those considerations also support the nonretroactivity of Pearce. The result in Pearce was not “foreshadowed” by any prior decision of this Court. Indeed, prior to Pearce, resentencing judges were bound by no requirement that they articulate their reasons and generally enjoyed a wide discretion in terms of the factors they might legitimately consider. See Williams v. New York, 337 U. S. 241 (1949). Nor could it be said that the Court's decision was clearly forecast by any trend of lower court decisions. In Pearce itself the Court noted that lower federal and state courts were divided on all of the questions posed. 395 U. S., at 715 n. 5. Under these circumstances, judicial reliance on prior law was certainly justifiable.

Because of that reliance, it is fair to assume that in prior years few, if any, judges complied during resentenc-ing with Pearce’s recordation requirement, and that they often considered a variety of factors relating to the defendant and his crime which might or might not have fallen within the Pearce standard. We have been presented with no statistical indications as to how many persons received increased penalties after retrials. We cannot say, however, that the potential interference with the administration of justice would be insubstantial if Pearce were applied retroactively. In order to comply with Pearce, a resentencing judge — assuming he is still on the bench or otherwise available — would be required to make a factual determination as to the reasons for sentences he may have meted out years in the past. Compliance with that requirement would present considerable difficulties, since judges, like witnesses in criminal trials, lack infallible memories and perfect records of their motivations. Linkletter v. Walker, 381 U. S., at 637. While we would not shy from imposing these burdens were we persuaded that it was necessary to do so in order to effectuate the purposes underlying Pearce, we have found no such need here. In sum, upon application of the three-part test, we hold that the Pearce requirements are not to be accorded retroactive application.

Ill

Since the resentencing hearing in this case took place approximately two years before Pearce was decided, we hold that the Michigan Supreme Court erred in applying its proscriptions here. Accordingly, the judgment of that court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Douglas,

dissenting.

We deal here with the guarantee contained in the Fifth Amendment, applicable to the States by reason of the Fourteenth, Benton v. Maryland, 395 U. S. 784, that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The construction given that clause was applied retroactively in North Carolina v. Pearce, 395 U. S. 711; and I think that Payne as well as Pearce should have the benefit of the “new” constitutional rule. My views have been at odds with those of the Court as witnessed by the dissent of Mr. Justice Black in Linkletter v. Walker, 381 U. S. 618, 640, which I joined, and by my separate dissent in Desist v. United States, 394 U. S. 244, 255. I could understand making a “new” constitutional rule applicable only prospectively. But I cannot bring myself to making the “new” rule applicable to some but not to others. If a State has violated the Federal Constitution in convicting or sentencing a prisoner, I see no way of denying him relief from that unconstitutional trial or unconstitutional sentence.

The Double Jeopardy Clause in my view was designed to discourage the abusive use by the Executive and Judicial Branches of the awesome power of government over the individual. Jeopardy attaches once the trial starts. If there is error in that trial and as a result a new trial is had, the Government cannot impose an added or increased sentence on the second trial. That is my view, as explained in North Carolina v. Pearce, supra, at 726-737. Respondent received a sentence of 19 to 40 years on his first trial and a greater one of 25 to 50 years on his second trial. I therefore would affirm the judgment below.

Mr. Justice Marshall,

dissenting.

The Court today holds that no limitations need be placed on resentencings that occurred before the date of decision in North Carolina v. Pearce, 395 U. S. 711 (1969). I believe however, that the State has an obligation to present to the court reviewing the second conviction evidence from which that court can determine whether a new sentence, more severe than that imposed at a prior trial, resulted in part from the sentencing authority’s desire to punish the defendant for successfully appealing his first conviction. I therefore respectfully dissent.

I

This case raises the issue of retroactivity only because of the almost unbelievable sluggishness of the appellate process in Michigan. Payne’s second sentence was imposed on August 30, 1967, nearly two years before Pearce was decided. However, the Michigan Court of Appeals did not decide Payne’s appeal until July 28, 1969, one month after the decision in Pearce. The Michigan Supreme Court considered the case for two more years, finally deciding it on November 9, 1971. Had the appellate process in Michigan been at all expeditious, this Court might have used Payne’s case as the vehicle to decide that harsher sentences on reconviction could be justified only by objective evidence of post-sentencing conduct by the defendant, the rule adopted in Pearce. The only difference between Pearce’s case and Payne’s, then, is that the former moved up to this Court more quickly than the latter. Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment. And a difference in the speed with which a judicial system disposes of an appeal is not related in any way to the purposes served by the limitations that Pearce placed on resentencing. Thus, considerations of fairness rooted in the Constitution lead me to conclude that cases in the pipeline when a new constitutional rule is announced must be given the benefit of that rule.

The rule adopted by the Court today is curious in another way. The Court appears to say that a defendant who failed to appeal his first conviction out of “a reasonably based fear of actual vindictiveness,” ante, at 52 n. 5, is entitled to review of his conviction. Cf. Fay v. Noia, 372 U. S. 391, 396-397, n. 3 (1963). If his appeal is successful, his new trial will occur after the date of decision in Pearce. Thus, any new sentence will be subject to the limitations imposed by Pearce. The rather strange result is that someone like Payne, who adhered to state procedural rules for vindicating his right to an error-free trial, may receive an enhanced sentence without limitation, while someone who did not adhere to those rules may not have his sentence increased unless the requirements of Pearce are met. I suppose that anomalies are occasionally inevitable, but I submit that we should consider very carefully any rule of retro-activity that has the effect of penalizing compliance with state procedural rules.

II

The Court applies the now-familiar three-pronged test to determine whether Pearce should be given retroactive effect, and it reaches the now-familiar result of nonretro-activity. I believe that principled adjudication requires the Court to abandon the charade of carefully balancing countervailing considerations when deciding the question of retroactivity. Inspecting the cases dealing with retro-activity, I find that they appear to fall into three groups. In some cases, this Court has held that the trial court lacked jurisdiction in the traditional sense. See, e. g., Benton v. Maryland, 395 U. S. 784 (1969); Waller v. Florida, 397 U. S. 387 (1970). Those holdings have been made fully retroactive. Ashe v. Swenson, 397 U. S. 436 (1970); Robinson v. Neil, 409 U. S. 505 (1973). Cf. United States v. U. S. Coin & Currency, 401 U. S. 715 (1971). In other cases the Court announced a rule that was central to the process of determining guilt or innocence, and whose application might well have led to the acquittal of the defendant. See, e. g., Gideon v. Wainwright, 372 U. S. 335 (1963); In re Winship, 397 U. S. 358 (1970). Those holdings too have been given retroactive effect. Pickelsimer v. Wainwright, 375 U. S. 2 (1963); Ivan V. v. New York, 407 U. S. 203 (1972). Cf. Adams v. Illinois, 405 U. S. 278 (1972). All other constitutional rules of criminal procedure have been given prospective effect only.

I confess that I have been unable to discover a principled basis for that threefold classification, but it does appear to be the factor operating in our cases. And I see little point in forcing lower courts to flounder without substantial guidance in the morass of our cases, by informing them that they are to apply a balancing test, when in fact it invariably occurs that the balancing test results in holdings of nonretroactivity. Furthermore, it demeans this Court to pretend to consider a variety of factors if, no matter how those factors are arrayed, the result is predetermined. An open-minded examination of this Court’s cases on retroactivity compels the conclusion that the Court divides cases into several classes, and it is the classification, not the three-pronged test, that determines the result. Our time would be better spent, I think, in attempting to delineate the basis for those classifications, and to derive them from some constitutional principles, rather than in “applying” a balancing test. Indeed, it might have been thought that Robinson v. Neil, supra, had begun the task of rationalizing our cases, but apparently that is not so.

Ill

The holding of Pearce is a simple one: the Due Process Clause requires States to adopt procedures designed to minimize the possibility that a new sentence after a successful appeal will be based in part on vindictiveness for the defendant’s having taken the appeal. The Court agrees that “this basic due process protection ... is available equally to defendants resentenced before and after the date of decision in that case.” Ante, at 50, 51. The question then is what procedures are required to insure that that protection has been afforded defendants re-sentenced before Pearce was decided. This question, like many of those involving retroactivity, relates to the integrity of the judicial process, not to the limitations placed by the Constitution on police behavior. One can agree that the precise requirements of Pearce are inappropriate for retrospective application, largely because they are procedurally ill-adapted to the problem, yet disagree with the Court that the States need do nothing at all to convince a reviewing court that vindictiveness played no part in the resentencing. See, e. g., Commonwealth v. Allen, 443 Pa. 96, 102, 277 A. 2d 803 (1971).

The issue need not be framed as the “retroactivity” of Pearce. The problem, as I see it, is to devise procedures that will permit reviewing courts to determine whether the requirements of the Due Process Clause have been met. In Pearce we concluded that it would be enough for a judge, on resentencing a defendant, to state his reasons for imposing a more severe sentence. If the more severe sentence was based upon objective information, placed on the record, concerning the conduct of the defendant after the first sentencing, the more severe sentence was permissible. Such a rule, although not absolutely guaranteeing that vindictiveness will play no part, nonetheless substantially reduces the possibility that it will, without significantly interfering with the judge’s lawful discretion.

A rather similar procedure would accomplish the same result for defendants resentenced before Pearce was decided. If a defendant did receive a harsher sentence after a successful appeal, and he seeks to have it reduced to the original sentence, the State should be required to present evidence that the new sentence was based on post-sentence conduct. In the absence of such evidence, the sentence must be reduced. The Court suggests that such a procedure would “occasion windfall benefits for some defendants who have suffered no constitutional deprivation.” Ante, at 53. That assertion must be considered more closely.

As the Court notes, there is little evidence that more severe sentences are often imposed. It cites an informal survey suggesting that 12% of reconvicted defendants receive higher sentences. Ante, at 56 n. 13. Even if that estimate is only half as large as the actual figure for pre-Pearce cases, still there are clearly very few defendants who have received harsher sentences. With respect to many of them, it will not be difficult to produce evidence supporting the new sentence. As in Moon v. Maryland, 398 U. S. 319 (1970), and Odom v. United States, 400 U. S. 23 (1970), the sentencing judge might indicate by affidavit or order the grounds for his sentencing decision. If memories have faded, the State might show that a presentence report considered by the judge recited post-sentence conduct by the defendant that would justify the harsher sentence.

Thus, I do not think that it can fairly be said that the requirements I would impose would in fact result in windfall benefits to “innumerable” defendants, ante, at 55; they would accrue to those few defendants who were convicted, successfully appealed, were reconvicted, and received harsher sentences so long ago that the State cannot produce evidence from which a reviewing court could find that vindictiveness played no part in the sentencing decision. And the “windfall benefits” would impair no substantial state interest in incarcerating those few offenders. Unlike the suppression of probative evidence that might severely limit the State's ability to secure a conviction of a person who undoubtedly committed an offense, here the remedy is simply the reduction of sentence. North Carolina v. Rice, 404 U. S. 244, 247 (1971). The sentence to be served would be one that had already been found appropriate by one judge, and would therefore satisfy the various interests advanced by incarceration.

For these reasons, I dissent.

Mr. Justice Stewart joins Part III of this opinion.

       In his affidavit, the second sentencing judge indicated that a different judge who presided over respondent’s prior guilty plea and sentencing hearings did not have as good an opportunity to become fully informed of the details of the “deliberate, cold-blooded attack.” In a subsequent amendatory affidavit filed by the same judge, he corrected his prior affidavit by stating that the first judge did have “some limited opportunity to see and hear [respondent] when he testified as a witness for the prosecution against his accomplice” in a separate trial. The parties in this case now agree that the first judge did preside over the trial of respondent’s codefendant before sentencing respondent and that respondent did testify at that trial. The parties continue, however, to dispute whether that opportunity was as complete as the opportunity afforded the second judge, and, if not, whether this is a permissible consideration in resentencing under Pearce. Because of the manner in which we dispose of this case, we need not resolve this controversy. See n. 3, infra.

       This Court has twice previously granted certiorari to resolve this question, but on each occasion the writ was dismissed as improvidently granted. Moon v. Maryland, 398 U. S. 319 (1970) (cert. granted, 395 U. S. 975 (1969)); Odom v. United States, 400 U. S. 23 (1970) (cert. granted, 399 U. S. 904 (1970)).

       This Court has consistently declined to reach out to resolve unsettled questions regarding the scope or meaning of decisions establishing “new” constitutional requirements in cases in which it holds any such decisions nonretroactive. See Stovall v. Denno, 388 U. S. 293 (1967) (holding United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), nonretroactive without resolving the question whether those cases were applicable to pre-formal accusation confrontations, a question later decided in Kirby v. Illinois, 406 U. S. 682 (1972)); DeStefano v. Woods, 392 U. S. 631 (1968) (holding Duncan v. Louisiana, 391 U. S. 145 (1968), and Bloom v. Illinois, 391 U. S. 194 (1968), nonretroactive and declining to decide whether a summary contempt proceeding that results in a one-year sentence is a “serious” offense requiring trial by jury, a question later decided in Baldwin v. New York, 399 U. S. 66 (1970)); Carcerano v. Gladden (a companion case with DeStefano, in which the Court declined to decide whether the right to jury trial contemplated by Duncan also required a unanimous verdict, a question later decided in Apodaca v. Oregon, 406 U. S. 404 (1972)); Elkanich v. United States (a companion case with Williams v. United States, 401 U. S. 646 (1971), holding Chimel v. California, 395 U. S. 752 (1969), nonretroactive and declining to decide whether the search was otherwise compatible with the Chimel limitations on searches incident to lawful arrests).

        Chaffin v. Stynchcombe, ante, at 25; Colten v. Kentucky, 407 U. S. 104, 116, 118 (1972).

       This is not to suggest, of course, that there may not be specific cases in which a convicted defendant might show that his initial waiver of his right to appeal was involuntary because caused by a reasonably based fear of actual vindictiveness on the part of a particular judge. Cf. North Carolina v. Pearce, 395 U. S., at 725 n. 20.

       See, e. g., In re Winship, 397 U. S. 358 (1970) (held retroactive in Ivan V. v. New York, 407 U. S. 203 (1972)); Barber v. Page, 390 U. S. 719 (1968) (held retroactive in Berger v. California, 393 U. S. 314 (1969)); Bruton v. United States, 391 U. S. 123 (1968) (held retroactive in Roberts v. Russell, 392 U. S. 293 (1968)); Gideon v. Wainwright, 372 U. S. 335 (1963).

       The most that may be said is that the Court in Pearce found that “increased sentences on reconviction are far from rare,” 395 U. S., at 725 n. 20, and that it was persuaded that vindictiveness played a role in a sufficient number of those cases to “warrant the imposition of a prophylactic rule.” Colten v. Kentucky, 407 U. S., at 116.

       See Johnson v. New Jersey, 384 U. S. 719 (1966). See also Stovall v. Denno, 388 U. S., at 299 (in pxe-Wade-Gilbert cases “it remains open to all persons to allege and prove . . . that the confrontation . . . infringed'his right to due process of law”); cf. Halliday v. United States, 394 U. S. 831, 833 (1969).

       Of course, it remains true that “retaliatory motivation” may be “difficult to prove in any individual case.” North Carolina v. Pearce, 395 U. S., at 725 n. 20. And, this is certainly one of the reasons why the Court in Pearce adopted prophylactic rules. Similar problems of proof prompted the decisions in Miranda and Wade, but such problems in themselves were not sufficient to warrant retrospective application.

       We reiterate here what the Court has repeatedly said in retro-activity cases: “[W]e do not disparage a constitutional guarantee in any manner by declining to apply it retroactively.” Johnson v. New Jersey, 384 U. S., at 728; cf. Linkletter v. Walker, 381 U. S. 618, 629 (1965).

       Compare Berger v. California, 393 U. S. 314 (1969), and Roberts v. Russell, 392 U. S. 293 (1968), with Adams v. Illinois, 405 U. S. 278 (1972), and Johnson v. New Jersey, supra, at 731.

       We need not disagree with Mr. Justice Marshall’s notation, post, at 66 n. 9, that the result in Pearce was foreshadowed, i. e., that higher sentences on retrial were being questioned. Our focus here, however, is on the prophylactic measure adopted to achieve that result. As to this, we do not think there is any serious question that neither the recordation requirement nor the limitations on matters to be considered were so clearly forecast as to render a contrary state reliance unjustifiable.

       See Note, Constitutional Law: Increased Sentence and Denial of Credit on Retrial Sustained under Traditional Waiver Theory, 1965 Duke L. J. 395, 399 n. 25 (informal survey of North Carolina courts showed that six of 50 reconvicted defendants received higher sentences).

       Thus, the retroactivity of Pearce would present difficulties not encountered in two of the Court’s recent decisions holding retroactive cases involving resentencing: Furman v. Georgia, 408 U. S. 238 (1972) (the “death penalty” case); Robinson v. Neil, 409 U. S. 505 (1973) (holding Waller v. Florida, 397 U. S. 387 (1970) retroactive). In both cases, “[t]hat which was constitutionally invalid could be isolated and excised without requiring the State to begin the entire factfinding process anew.” Robinson v. Neil, supra, at 510.

       Respondent, relying on Linkletter v. Walker, supra, and Tehan v. Shott, 382 U. S. 406 (1966), urges the Court to distinguish between cases, like his, on direct appeal and those arising after a conviction and sentence have become final. We think the above-stated reasons for applying Pearce prospectively apply with equal force to all cases in which resentencing proceedings occurred before June 23, 1969, the date of decision in Pearce. See Stovall v. Denno, 388 U. S., at 300; Desist v. United States, 394 U. S., at 252; Williams v. United States, 401 U. S., at 651-652.

       The State did present an affidavit from the sentencing judge in this case. The Michigan Supreme Court held that it did not satisfy the requirement of North Carolina v. Pearce, 395 U. S. 711, 726 (1969), that more severe sentences can be justified only by “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” See 386 Mich. 84, 97, 191 N. W. 2d 375, 381 (1971). Petitioner contends that this holding was erroneous. Petition for Writ of Certiorari 5-6. The Court does not address this contention, nor shall I.

       Since Payne’s appeal was pending when Pearce was decided, I need not consider whether different considerations, such as the defendant’s failure to raise the issue in seeking review from this Court or to persuade us on the merits, might suffice under the Due Process Clause to justify different treatment of defendants whose sentences had become final.

       Mr. Justice Harlan, dissenting in Fay v. Noia, 372 U. S. 391, 475 (1963), suggested that the possibility of an enhanced sentence after a successful appeal, according to the Court, precluded the State from relying on a failure to appeal as an adequate state ground supporting the denial of relief under federal habeas corpus. On his interpretation, then, Fay anticipated the holding in Pearce.

       In holding various rulings retroactive, this Court has given only the most cursory nod to the three-pronged test. See, e. g., Roberts v. Russell, 392 U. S. 293 (1968); McConnell v. Rhay, 393 U. S. 2 (1968); Arsenault v. Massachusetts, 393 U. S. 5 (1968).

        Linkletter v. Walker, 381 U. S. 618 (1965), giving a limited retroactive effect to Mapp v. Ohio, 367 U. S. 643 (1961), is an anomaly at odds with the Court’s subsequent treatment of problems of retroactivity and can be explained only by the Court’s unfamiliarity with those problems when the case was decided. See also Johnson v. New Jersey, 384 U. S. 719 (1966).

       For example, the sentencing judge, had he considered the case as an initial matter, might have imposed a sentence shorter than that imposed at the first trial, but, out of vindictiveness, he might decide to reimpose the original sentence. The procedures outlined in Pearce cannot prevent this.

       I assume that the Court’s reliance on the continuing availability of the “foundational” right means that an offender who shows that vindictiveness played a part in his resentencing is entitled to relief. I would simply shift the burden of proof to the State, which has better access to the relevant facts.

       State courts, closer to the problems of administering the rule I suggest, have widely thought that those burdens are not substantial. See, e. g., Stonom v. Wainwright, 235 So. 2d 545 (Fla. App. 1970); People v. Baze, 43 Ill. 2d 298, 253 N. E. 2d 392 (1969); State v. Pilcher, 171 N. W. 2d 251 (Iowa 1969); Hord v. Commonwealth, 450 S. W. 2d 530 (Ky. 1970); State v. Rentschler, 444 S. W. 2d 453 (Mo. 1969); Commonwealth v. Allen, 443 Pa. 96, 277 A. 2d 803 (1971); Denny v. State, 47 Wis. 2d 541, 178 N. W. 2d 38 (1970).

       The Court’s conclusion that Pearce was not foreshadowed by decisions in this Court or by a trend of lower court decisions is somewhat misleading. This Court’s decision in Green v. United States, 355 U. S. 184 (1957), raised substantial questions under the Double Jeopardy Clause of the constitutionality of enhanced sentences after a successful appeal. Also, one reading of Fay v. Noia, 2Í12 U. S. 391 (1963), suggested by the dissent of Mr. Justice Harlan, is that a State may not burden the right to appeal with the possibility of an enhanced sentence. And prior to Pearce, the First, Second, Fourth, Fifth, and Seventh Circuits had held that enhanced sentences after reconviction could be justified only in limited circumstances. See Maraño v. United States, 374 F. 2d 583 (CA1 1967); United States v. Coke, 404 F. 2d 836 (CA2 1968) (en banc); Patton v. North Carolina, 381 F. 2d 636 (CA4 1967); Simpson v. Rice, 396 F. 2d 499 (CA5 1968); United States v. White, 382 F. 2d 445 (CA7 1967). So had the California Supreme Court, in a powerful opinion by Justice Traynor. People v. Henderson, 60 Cal. 2d 482, 386 P. 2d 677 (1963). Finally, a “learned and effective article,” as Judge Friendly called it in United States v. Coke, supra, arguing the same point, appeared in 1965. Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale L. J. 606 (1965). I would think that these decisions and commentary had prepared the ground rather well for Pearce, as the Court concedes, ante, at 56 n. 12. Yet if the result was foreshadowed, it is not unreasonable to require States now to supplement the record, so that it will be clear that unconstitutional sentences were not imposed. Because it insists on treating the issue here as a question of retroactivity, the Court does not address this argument.


source: Caselaw Access Project

author: Mr. Justice Rehnquist Mr. Chief Justice Burger, Mr. Justice Douglas,

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD v. BOEING CO. et al.
    No. 71-1607.
    Argued March 26, 1973
    Decided May 21, 1973
    RehNQüist, J., delivered the opinion of the Court, in which BreNNAN, Stewart, White, Marshall, and Powell, JJ., joined. Burger, C. J., filed a dissenting opinion, post, p. 78. Douglas, J., filed a dissenting opinion, in which Burger, C. J., and Blackmun, J., joined, post, p. 79.

      Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Peter G. Nash, and Patrick Hardin.

      Samuel Lang argued the cause for respondent Boeing Co. With him on the brief were C. Dale Stout and Frederick A. Kullman. Bernard Dunau argued the cause for respondent Booster Lodge No. 405, International Association of Machinists & Aerospace Workers, AFL-CIO. With him on the briefs were Plato E. Papps, Louis P. Poulton, and C. Paul Barker

        J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.

        Milton Smith, Gerard C. Smetana, and Jerry Kronenberg filed a brief for the Chamber of Commerce of the United States as amicus curiae urging affirmance.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

The question presented in this case is whether the National Labor Relations Board is required by § 8 (b) (1)(A) of the National Labor Relations Act to inquire into the reasonableness of a disciplinary fine imposed by a union upon a member when the Board exercises its admitted authority under that section to determine whether the fine otherwise constitutes an unfair labor practice. The Board held that the validity of union fines under the Act does not depend on their being reasonable in amount. Booster Lodge No. 405, 185 N. L. R. B. 380, 383 n. 16, 75 L. R. R. M. 1004, 1007 n. 16 (1970). On petition for judicial review of this determination, the Court of Appeals held that an unreasonably large fine is coercive and restraining within the meaning of § 8 (b) (1) (A), and remanded the case to the Board with directions to consider “questions relating to the reasonableness of the fines imposed by the Union.” Booster Lodge No. 405, International Association of Machinists v. NLRB, 148 U. S. App. D. C. 119, 137, 459 F. 2d 1143, 1161 (1972). We granted certiorari, 409 U. S. 1074 (1972), and now reverse the judgment below.

From May 16,1963, through September 15,1965, Booster Lodge No. 405, International Association of Machinists & Aerospace Workers, AFL-CIO (the Union), and the Boeing Co. (the Company) were parties to a collective-bargaining agreement. Upon expiration of this agreement the Union called a lawful economic strike at the Company's Michoud plant in New Orleans and at other locations. As of October 2, 1965, the parties signed a new collective-bargaining agreement and the strikers thereafter returned to work. Both agreements contained maintenance-of-membership clauses that required Union members to retain their membership during the contract term. New employees were required to notify the Union and the Company within 40 days of accepting employment if they elected not to join the Union.

During the 18-day strike some 143 employees out of 1,900 production and maintenance employees in the bargaining unit at the Michoud plant crossed the picket lines and returned to work. All of these employees were Union members at the time the strike began, although some of them tendered their resignations either before or after crossing the picket lines. In late October or early November 1965 the Union notified these employees that charges had been preferred against them for violating the International Union’s constitution. The constitution provides penalties for the “improper conduct of a member,” which term includes “[accepting employment ... in an establishment where a strike . . . exists.” In accordance with appropriate union procedures, including notice and opportunity for a hearing, all strikebreakers were found guilty, fined $450, and barred from holding Union office for a period of five years. While some of the fines were reduced and some partial payments were received by the Union, no member paid the full $450. After warning members to pay their fines or face the consequences, the Union filed suits in state court against nine individual employees to collect the fines. None of these suits has been finally adjudicated.

In February 1966 the Company filed a charge with the Labor Board alleging that the attempted court enforcement of the fines violated § 8 (b) (1) (A) of the National Labor Relations Act. The allegations were basically twofold: first, that the Union committed an unfair labor practice by fining employees who had resigned from the Union, an issue that we consider in the companion case, Machinists <& Aerospace Workers v. NLRB, post, p. 84; and, second, that as to the members who were otherwise validly fined, the fines were unreasonable in amount. Thereafter the Board’s General Counsel issued a complaint and the case was heard by a Trial Examiner. With respect to the second issue, the Trial Examiner determined that the fines were impermissibly excessive, but the Board refused to adopt his conclusion. It relied on a case decided the same day, Machinists, Local Lodge 504 (Arrow Development Co.), 185 N. L. R. B. 365, 75 L. R. R. M. 1008 (1970), reversed sub nom. O’Reilly v. NLRB, 472 F. 2d 426 (CA9 1972), in which it held that Congress did not intend to give the Board authority to regulate the size of union fines or to establish standards with respect to a fine’s reasonableness.

Section 8 (b)(1)(A) of the Act provides, in pertinent part, that it shall be an unfair labor practice for a labor organization “to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 of this title.” Among the § 7 rights guaranteed to employees is the right to refrain from any of the concerted activities described in that section. We have previously held that § 8 (b)(1) (A) was not intended to give the Board power to regulate internal union affairs, including the imposition of disciplinary fines, with their consequent court enforcement, against members who violate the unions' constitutions and bylaws. NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175 (1967); Scofield v. NLRB, 394 U. S. 423 (1969). In Allis-Chalmers we held that court enforcement of fines ranging from $20 to $100 for crossing picket lines did not “restrain or coerce” employees within the meaning of the Act. And in Scofield we held that the union did not violate the Act in imposing fines of $50 and $100 on members for violating a union rule relating to production ceilings.

In deciding these cases, the Court several times referred to the unions' imposition of “reasonable” fines. In particular, the Scofield Court concluded “that the union rule is valid and that its enforcement by reasonable fines does not constitute the restraint or coercion proscribed by § 8 (b) (1) (A).” 394 U. S., at 436 (emphasis added). The Company contends, not illogically, that the Court’s use of the adjective “reasonable” was intended to suggest to the Board that an unreasonable fine would amount to an unfair labor practice.

This interpretation, however, permissible as it may be, is only dicta, since in both Allis-Chalmers and in Scofield the reasonableness of the fines was assumed. 388 U. S., at 192-193, n. 30; 394 U. S., at 430. Being squarely presented with the issue in this case, we recede from the implications of the dicta in these earlier cases. While “unreasonable” fines may be more coercive than “reasonable” fines, all fines are coercive to a greater or lesser degree. The underlying basis for the holdings of Allis-Chalmers and Scofield was not that reasonable fines were noncoercive under the language of §8 (b)(1)(A) of the Act, but was instead that those provisions were not intended by Congress to apply to the imposition by the union of fines not affecting the employer-employee relationship and not otherwise prohibited by the Act. The reason for this determination, in turn, was that Congress had not intended by enacting this section to regulate the internal affairs of unions to the extent that would be required in order to base unfair labor practice charges on the levying of such fines.

The Court's examination of the legislative history of this provision in Allis-Chalmers led to the conclusion that:

“What legislative materials there are dealing with §8 (b)(1) (A) contain not a single word referring to the application of its prohibitions to traditional internal union discipline in general, or disciplinary fines in particular. On the contrary there are a number of assurances by its sponsors that the section was not meant to regulate the internal affairs of unions.” 388 U. S., at 185-186 (emphasis added) .

In Scofield we decided that Congress intended to distinguish between the external and the internal enforcement of union rules, and that therefore the Board would have authority to pass on those rules affecting an individual’s employment status but not on his union membership status. 394 U. S., at 428-430.

Inquiry by the Board into the multiplicity of factors that the parties and the Court of Appeals correctly thought to have a bearing on the issue of reasonableness would necessarily lead the Board, to a substantial involvement in strictly internal union affairs. While the line may not always be clear between those matters that are internal and those that are external, to the extent that the Board was required to examine into such questions as a union’s motivation for imposing a fine it would be delving into internal union affairs in a manner which we have previously held Congress did not intend. Given the rationale of Allis-Chalmers and Scofield, the Board’s conclusion that §8 (b)(1) (A) of the Act has nothing to say about union fines of this nature, whatever their size, is correct. Issues as to the reasonableness or unreasonableness of such fines must be decided upon the basis of the law of contracts, voluntary associations, or such other principles of law as may be applied in a forum competent to adjudicate the issue. Under our holding, state courts will be wholly free to apply state law to such issues at the suit of either the union or the member fined.

Our conclusion is also supported by the Board’s longstanding administrative construction to the same effect. At least since 1954, it has been the Board’s consistent position that it has “not been empowered by Congress ... to pass judgment on the penalties a union may impose on a member so long as the penalty does not impair the member’s status as an employee.” Local 288, UAW, 145 N. L. R. B. 1097, 1104 (1964). See also Minneapolis Star ■& Tribune Co., 109 N. L. R. B. 727, 34 L. R. R. M. 1431 (1954). We have held in analogous situations that such a consistent and contemporaneous construction of a statute by the agency charged with its enforcement is entitled to great deference by the courts. Griggs v. Duke Power Co., 401 U. S. 424, 433-434 (1971); Udall v. Tollman, 380 U. S. 1, 16 (1965).

The Court of Appeals and the Company have suggested several policy reasons why the Board should not leave the determinations of reasonableness entirely to the state courts. Their basic reasons are, first, that more uniformity in the determination of what is reasonable will result if the Board suggests standards and, second, that more expertise in labor matters will be brought to bear if the issue is decided by the Board rather than solely by the courts. Even if we were to concede the relevance of policy factors in determining congressional intent, we are not persuaded that the Board is necessarily the better forum for determining the reasonableness of a fine.

As we noted in Allis-Chalmers, court enforcement of union fines is not a recent innovation but has been known at least since 1867. 388 U. S., at 182 n. 9. See also Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L. J. 175 (1960). The relationship between a member and his union is generally viewed as contractual in nature, International Association of Machinists v. Gonzales, 356 U. S. 617, 618 (1958) ; Scofield v. NLRB, 394 U. S., at 426 n. 3; NLRB v. Textile Workers, 409 U. S. 213, 217 (1972), and the local law of contracts or voluntary associations usually governs the enforcement of this relationship. NLRB v. Allis-Chalmers Mfg. Co., 388 U. S., at 182 and 193 n. 32; Scofield v. NLRB, supra, at 426 n. 3.

We alluded to state court enforcement of unusually harsh union discipline in Allis-Chalmers when we stated that “state courts, in reviewing the imposition of union discipline, find ways to strike down ‘discipline [which] involves a severe hardship.’ ” 388 U. S., at 193 n. 32, quoting Summers, Legal Limitations on Union Discipline, 64 Harv. L. Rev. 1049, 1078 (1951). The Board assumed that in view of this statement, our reference to “reasonable” fines, when reasonableness was not in issue, in Allis-Chalmers and in Scofield, was merely adverting to the usual standard applied by state courts in deciding whether to enforce union-imposed fines. The Board reads these cases, therefore, as encouraging state courts to use a reasonableness standard, not as a directive to the Board.

Our review of state court cases decided both before and after our decisions in Allis-Chalmers and Scofield reveals that state courts applying state law are quite willing to determine whether disciplinary fines are reasonable in amount. Indeed, the expertise required for a determination of reasonableness may well be more evident in a judicial forum that is called upon to assess reasonableness in varying factual contexts than it is in a specialized agency. In assessing the reasonableness of disciplinary fines, for example, state courts are often able to draw on their experience in areas of the law apart from labor relations.

Nor is it clear, as contended by the Court of Appeals, that the Board’s setting of standards of reasonableness will necessarily result in greater uniformity in this area even if uniformity is thought to be a desirable goal. Since state courts will have jurisdiction to determine reasonableness in the enforcement context in any event, the Board’s independent determination of reasonableness in an unfair labor practice context might well yield a conflict when the two forums are called upon to review the same fine.

For all of the foregoing reasons, we conclude that the Board was warranted in determining that when the union discipline does not interfere with the employee-employer relationship or otherwise violate a policy of the National Labor Relations Act, the Congress did not authorize it “to evaluate the fairness of union discipline meted out to protect a legitimate union interest.” The judgment of the Court of Appeals is, therefore,

Reversed.

Mr. Chief Justice Burger,

dissenting.

It is odd, to say the least, to find a union urging on us severe limitations on NLRB authority, and telling us that state courts are the proper forum to resolve questions regarding the reasonableness of fines imposed on workers for violation of union rules. For years, there has been unrelenting union opposition to state court “intervention” into industrial disputes and union activities. We have been told cóuntless times that the “expertise” of the Labor Board, based on its overview and intimate familiarity with labor problems, is essential in this area.

A union must, of course, have some disciplinary powers or it would disintegrate. However, the power to discipline can easily turn from a means of enforcing valid rules to an oppressive and coercive device of retribution, a weapon which, when used to extremes, may deprive a working man of his very means of sustenance. Whether a particular fine is required in a particular situation involves a weighing of the delicate balance of relations between the employers, employees, and the union involved. Such an intimate knowledge of labor relations has consistently been ascribed to the Board, often by the unions. It is the Board that deals with such matters on a daily basis. It is the Board that has the jurisdiction and experience to devise and employ national standards to govern union conduct; there are valid reasons for essential uniformity and consistency in the matters of fines. To isolate this sensitive subject and thrust it on the state courts is contrary to the entire history of the federal labor statutes and opens the door to a wide disparity of fines for the same conduct in different States.

Mr. Justice Douglas,

with whom The Chief Justice and Mr. Justice Blackmun concur, dissenting.

I dissent from the holding of the Court that the Board has no jurisdiction to determine the “reasonableness” of the fines placed by the Union on its dissident members.

The Union and Boeing had an effective collective-bargaining agreement from May 16, 1963 through September 15, 1965. On the expiration of that contract the Union struck against Boeing, causing a work stoppage that lasted 18 days. On October 2, 1965, a new collective agreement was reached and work was resumed.

During the strike, about 143 employees at the Michoud plant crossed the picket line and reported for work. All of these had been Union members during the 1963-1965 contract period. Some of the 143 who worked during the strike did not resign from the Union; 119 did resign — 61 before they crossed the picket line and returned to work; 58 resigned during the course of the strike, but after they had crossed the picket line. All of these resignations were submitted after the expiration of the 1963-1965 collective agreement. The Union never warned members on this or on earlier occasions, that disciplinary measures could or would be taken against members who crossed the picket line.

After the new collective agreement was reached, the Union notified all members who had crossed the picket line to work during the strike that charges had been laid against them and that they would be tried by the Union for “improper” conduct, the Union’s constitution permitting disciplinary measures, including “reprimand, fine, suspension and/or expulsion from membership, or any lesser penalty or any combination.”

Those who appeared for trial and those who did not appear were found guilty and fined $450 each and barred from holding a Union office for five years. The fines of some 35 who appeared and apologized and took a loyalty oath were reduced to 50% of their earnings during the strike; and the prohibition against holding Union office was reduced in those cases.

The Union sent out a written notice saying that the unpaid fines had been referred to an attorney for collection and that the reduced fines would be restored to $450 if not paid. Suits against nine employees were filed in a state court to collect the; fines plus attorneys’ fees and interest; and they are unresolved.

Boeing filed a charge of an unfair labor practice against the Union under § 8 (b)(1)(A) of the Act. The General Counsel issued a complaint and the Board decided that the Union had violated § 8 (b) (1) (A) except for the fines on members for crossing the picket line to work and for the fines on those who resigned after returning to work during the strike, for work performed during the strike prior to their resignations. But the Board, one member dissenting, refused to pass on the reasonableness of the fines, holding it lacked the power to do so.

The unfair labor practice under §8 (b)(1)(A) is the action of a union “to restrain or coerce” an employee from the “right to refrain from" assisting a union as that right is defined in § 7. In Scofield v. NLRB, 394 U. S. 423, we upheld a union rule and concluded “that its enforcement by reasonable fines does not constitute the restraint or coercion proscribed by § 8 (b)(1)(A).” Id., at 436 (emphasis added). See also NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175. The imposition of a nominal fine of $1 might suit the circumstances of a case, where a $1,000 fine would be monstrous. A nominal fine might be justified where, as here, the employees had no warning that they would or could be fined for working behind a picket line. A fine where the only sanction would be temporary suspension from the union might be “reasonable,” yet unreasonable if it was court enforceable, meaning, as it does here, that attorneys’ fees, costs, and interest may be added. A member who must pay the union’s attorney as well as his own if he challenges the reasonableness of a fine in a state court and loses, may well be suffering an unconscionable penalty. Moreover, the fine may be imposed by a union which believed as did the present Union that the member had no “right” to resign, though NLRB v. Textile Workers, 409 U. S. 213, held to the contrary. The present fines seem to be swollen by that predilection of the Union. The present fines also exceed the earnings of the workers during the strike period. By what standard can that possibly be justified? As member McCulloch of the Board, dissenting, said, the excess of the fines over the wages collected during this period is in actual effect an assessment after the strike is over. If after the strike the Union caused Boeing to suspend a member without pay after the strike because he had worked during the strike, there could be no question but that the Union violated § 8 (b) (1) (A). Yet, the assessment of fines greater than the wages earned during the strike has precisely that effect. Thus, in assessing an unreasonable fine the Union, in my view, goes beyond the permissible bounds of regulating its internal affairs,

It is no answer to say that the reasonableness of a fine may be tested in a state-court suit. That envisages a rich and powerful union suing a rich and powerful employee. Employees, however, are often at the bottom of the totem pole, without financial resources, and unworldly when it comes to litigation. Such a suit is likely to be no contest. The Board procedures, on the other hand, may be readily available. If an employee files a charge with any merit, the Regional Director will issue a complaint. Thereafter, the General Counsel represents the employee, and the agency bears any cost of prosecuting the claim.

But my difficulty with the Court's decision is even greater. State judges, though honest and competent, have no expertise in labor-management relations. The Board does have that expertise and can evolve guidelines based on its broad experience. It is said that Congress has provided the Board with no guidelines for passing on the “reasonableness” of union-imposed fines. But the Board through case-by-case treatment has been developing an administrative common law concerning “unfair” practices of employers and unions alike. We have said on other occasions that the “experience and commonsense” which are facets of the expertise of the Board, NLRB v. Radio & Television Broadcast Engineers, 364 U. S. 573, 582-583, are adequate for the difficult and delicate responsibilities which Congress has entrusted to it, subject of course to judicial review. A fine discretely related to a legitimate union need and reflecting principled motivations under the law is one thing. A fine that reflects the raw power exercised by a union in its hunger for all-pervasive authority over members is quite another problem. The Labor Board, which knows the nuances of this problem better than any other tribunal, is the keeper of the conscience under the Act. It and it alone has primary responsibility to police unions, as well as employers, in protection of the rights of workers. In my view it cannot properly perform its duties under § 8(b)(1)(A) unless it determines whether the nature and amount of the fine levied by a union constitute an unfair labor practice.

       “(b) It shall be an unfair labor practice for a labor organization or its agents—
      “(1) to restrain or coerce (A). employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . . ." 61 Stat. 141, 29 U. S. C. § 158 (b)(1)(A).

       Of the 143 employees who crossed the picket lines, 24 made no attempt to resign from the Union, 61 resigned before crossing the picket lines, and 58 resigned after crossing the picket lines and reporting for work. The validity of the fines imposed against those who resigned from the Union is considered in a companion case, Machinists & Aerospace Workers v. NLRB, post, p. 84. See also NLRB v. Textile Workers, 409 U. S. 213 (1972).

       The Union constitution provides that members found guilty of misconduct after notice and a hearing are subject to “reprimand, fine, suspension, or expulsion from membership or any lesser penalty or combination.” The constitution sets no maximum dollar limitation on fines.

       The base income of the employees fined ranges from $95 to $145 for a 40-hour workweek.
      Fines were reduced to 50% of wages earned during the strike for 35 members who appeared for the Union trial, apologized for their actions, and pledged loyalty to the Union. Eighteen of these reduced fines have been paid in full.

       The proviso to this section states: “That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.” It has been the Board’s position that this proviso authorizes the unions to impose disciplinary fines on union members. Minneapolis Star & Tribune Co., 109 N. L. R. B. 727, 34 L. R. R. M. 1431 (1954); Wisconsin Motor Corp., 145 N. L. R. B. 1097, 55 L. R. R. M. 1085 (1964); Allis-Chalmers Mfg. Co., 149 N. L. R. B. 67, 57 L. R. R. M. 1242 (1964). This Court, however, in holding that court enforcement of union fines was not an unfair labor practice in NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175 (1967), relied on congressional intent only with respect to the first part of this section. The parties’ principal contentions in this case do not depend on the scope of the proviso and we do not consider its interpretation necessary to our conclusion.

       In its entiret}'- § 7 provides:
      “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3).” 61 Stat. 140, 29 U. S. C. § 157.

       Moreover, since the Board has consistently over a long period of time interpreted the Act as not giving it authority to examine the reasonableness of disciplinary fines, infra, at 74^75, it is not likely that the Court specificially intended, by the use of a single adjective, and without mentioning the Labor Board cases to the contrary, to overturn the Board’s interpretation of the Act. Nor can it be argued that the Court was unaware of the Board’s interpretation, for the Scofield Court stated that in Allis-Chalmers it
      “essentially accepted the position of the National Labor Relations Board dating from Minneapolis Star & Tribune Co., 109 N. L. R. B. 727 (1954) where the Board also distinguished internal from external enforcement in holding that a union could fine a member for his failure to take part in picketing during a strike . . . .” Scofield v. NLRB, 394 U. S. 423, 428 (1969).

       As we also noted in Allis-Chalmers, this interpretation is supported by the Landriun-Griffin Act, where “Congress expressly recognized that a union member may be ‘fined, suspended, expelled, or otherwise disciplined,’ and enacted only procedural requirements to be observed. 73 Stat. 523, 29 U. S. C. § 411 (a) (5).” NLRB v. Allis-Chalmers Mfg. Co., 388 U. S., at 194.

       Cf. Motor Coach Employees v. Lockridge, 403 U. S. 274, 296 (1971); U. O. P. Norplex v. NLRB, 445 F. 2d 155, 158 (CA7 1971) (“The reasonableness of the fines is a matter for the state court to determine should the Union seek judicial enforcement of the fines”).

       It is also noteworthy that when Congress has intended the Board to examine a fee for being excessive or unreasonable, it has specifically so stated and has provided statutory standards for the Board to follow in making such a determination. See, e. g., 29 U. S. C. § 158 (b) (5) (union initiation fees).

       The Board’s interpretation of our decisions is basically the following:
      “Thus, the Court’s findings that the fines in those cases were reasonable seems directed to enforcing courts, encouraging those courts to make an independent determination of the reasonableness of the fine in each case presented, in the same fashion as courts limit other union discipline which imposes a severe hardship. Such considerations are of an equitable nature rather than of the character of restraint and coercion with which the National Labor Relations Act treats.” Machinists, Local Lodge 604 (Arrow Development Co.), 185 N. L. R. B. 365, 368, 75 L. R. R. M. 1008, 1010 (1970).

        Auto Workers Local 283 v. Scofield, 76 L. R. R. M. 2433 (Wis. Sup. Ct. 1971) ($100 fine deemed reasonable); Farnum v.
        Kurtz, 70 L. R. R. M. 2035 (Los Angeles Mun. Ct. 1968) ($592 fine deemed unreasonable and reduced to $100); McCauley v. Federation of Musicians, 26 L. R. R. M. 2304 (Pa. Ct. of Common Pleas 1950) ($300 fine deemed excessive and reduced to $100); North Jersey News-payer Guild Local No. 173 v. Rakos, 110 N. J. Super. 77, 264 A. 2d 453 (1970) ($750 fine reduced to $500, which was deemed reasonable); Walsh v. Communications Workers of America, Local me, 259 Md. 608, 271 A. 2d 148 (1970) ($500 fine deemed reasonable) ; Local 248, United Auto Workers v. Natzke, 36 Wis. 2d 237, 153 N. W. 2d 602 (1967) ($100 fine upheld); Jost v. Communications Workers of America, Local 9408, 13 Cal. App. 3d Supp. 7, 91 Cal. Rptr. 722 (1970) ($299 fine upheld, the court stating that “it is the settled law in this country that such a fine becomes a debt enforceable by the courts in an amount that is not unreasonably large.” Id., at 12, 91 Cal. Rptr., at 725).

       See, e. g., Farnum v. Kurtz, supra, at 2041, where a municipal court judge, in reducing a union-imposed fine of $592 to $100, revealed that the kind of expertise required by this type of case is not that of a technical knowledge of labor law:
      “Based upon the facts herein and the Court’s experiences [in passing judgment in thousands of misdemeanor cases], the fine assessed is much too large and unreasonable. The Court finds that a fine of $100.00 serves the ends of justice and is more in keeping with the circumstances herein and reasonable.”

         Scofield v. NLRB, 394 U. S., at 429; NLRB v. Marine Workers, 391 U. S. 418 (1968).

         Machinists, Local Lodge 504 (Arrow Development Co.), 185 N. L. R. B. 365, 638, 75 L. R. R. M. 1008, 1011 (1970). The Board has long held that the Act proscribes certain unacceptable methods of union coercion, such as physical violence to force an employee to join a union or to participate in a strike. In re Maritime Union, 78 N. L. R. B. 971, enforced, 175 F. 2d 686 (CA2 1949), cited in Scofield v. NLRB, supra, at 428 n. 4.

      That section provides:
      “(b) It shall be an unfair labor practice for a labor organization or its agents—
      “(1) to restrain or coerce (A) emplojrees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.” 61 Stat. 141, 29 U. S. C. § 168 (b)(1)(A).
      Section 7 provides:
      “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3).” 29 U. S. C. § 157.


author: Per Curiam. Mr. Justice Blackmun,

text:
    BOOSTER LODGE NO. 405, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO v. NATIONAL LABOR RELATIONS BOARD et al.
    No. 71-1417.
    Argued March 26, 1973
    Decided May 21, 1973

      Bernard Dunau argued the cause for petitioner. With him on the briefs were Plato E. Papps, Louis P. Poulton, and C. Paul Barker.

      Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Griswold, Harriet S. Shapiro, Peter G. Nash, John S. Irving, and Patrick Hardin. Samuel Lang argued the cause for respondent Boeing Co. With him on the brief were C. Dale Stout and Frederick A. Kullman.

        J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.

        Milton Smith, Gerard C. Smetana, and Jerry Kronenberg filed a brief for the Chamber of Commerce of the United States as amicus curiae urging affirmance.

   Per Curiam.

In this companion case to NLRB v. Boeing Go., ante, p. 67, we must decide whether our decision in NLRB v. Textile Workers, 409 U. S. 213, authorizes the Board to find that a union commits an unfair labor practice in seeking court enforcement of fines imposed for strikebreaking activities by employees who have resigned from the union, even though the union constitution expressly prohibits members from strikebreaking. We hold that it does.

On September 16, 1965, the day after the expiration of the collective-bargaining agreement between Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), and the Boeing Co. (the Company), the Union called a lawful strike and picketed the Company’s Michoud, Louisiana, plant to further its demands for a new contract. The strike continued for 18 days, during which time 143 of the 1,900 production and maintenance employees represented by the Union crossed the picket line to work. All of these employees had been members of the Union before the strike, but 61 resigned their membership prior to returning to work and another 58 resigned after they returned to work. These resignations were tendered in registered or certified letters to the Union. Neither its constitution nor its bylaws contained any provision expressly permitting or forbidding such resignations.

The strike ended on October 4, 1965, after ratification of a new collective-bargaining agreement by the Union membership. During late October and early November, the Union notified all employees who had crossed the picket line to work during the strike that charges had been preferred against them under the Union constitution for “Improper Conduct of a Member” because of their having “accept[ed] employment ... in an establishment where a strike or lockout exist [ed].” They were advised of the dates of their Union trials, which were to be held even in their absence, and of their right to be represented by any counsel who was a member of the International Union. Fines were imposed on all employees who had worked during the strike without regard to whether or not such employees had resigned or had remained members. None of the disciplined employees processed intra-union appeals. To the extent that fines were not paid, the Union sent written notices to the offending employees stating that the matter had been referred to an attorney for collection. Suits were initiated in state court against nine employees for the purpose of collecting the fines plus attorneys’ fees and interest. None of these suits has been resolved.

The Company filed an unfair labor practice charge with the National Labor Relations Board alleging that the Union had violated §8 (b)(1)(A) of the National Labor Relations Act, 61 Stat. 141, 29 U. S. C. § 158 (b) (1)(A). The General Counsel issued a complaint, and the Board held that the Union violated § 8(b)(1) (A), by fining those employees who had resigned from the Union before returning to work during the strike, and by fining those who had resigned after returning to work to the extent that such fines were based on post-resignation work. No violation was found in the Union’s fining members for crossing the picket line to work during the strike or in its fining those employees who resigned after they returned to work for work performed prior to resignation. The Board ordered the Union to cease and desist from fining employees who had resigned from the Union for their post-resignation work during the strike and from seeking court enforcement of such fines. It further ordered reimbursement to employees who had already paid fines for any amount imposed because of post-resignation work. The Court of Appeals sustained these holdings, 148 U. S. App. D. C. 119, 459 F. 2d 1143 (1972), and, on the Union’s petition for review, we granted certiorari. 409 U. S. 1074.

In NLRB v. Textile Workers, 409 U. S., at 217, we held that “[w]here a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct.” Since in that case there was no provision in the Union’s constitution or bylaws limiting the circumstances in which a member could resign, we concluded that the members were free to resign at will and that § 7 of the Act, 29 U. S. C. § 157, protected that right to return to work during a strike which had been commenced while they were union members. The Union’s imposition of court-collectible fines against the former members for such work was, therefore, held to violate § 8 (b)(1)(A).

Here, as in Textile Workers, the Union’s constitution and bylaws are silent on the subject of voluntary resignation from the Union. And here, as there, we leave open the question of the extent to which contractual restriction on a member’s right to resign may be limited by the Act. Since there is no evidence that the employees here either knew of or had consented to any limitation on their right to resign, we need “only to apply the law which normally is reflected in our free institutions — the right of the individual to join or to resign from associations, as he sees fit ‘subject of course to any financial obligations due and owing’ the group with which he was associated.” Textile Workers, supra, at 216.

The Union contends, however, that a result different from Textile Workers is warranted in this case because, even though its constitution does not expressly restrict the right to resign during a strike, it does impose on members an obligation to refrain from strikebreaking. The Union asserts that this provision has been consistently interpreted to bind a member, notwithstanding his resignation, to abstain from strikebreaking for the duration of an existing strike. It urges that this provision may be enforced as a matter of contract law against one whose membership has ceased, because it was an obligation he undertook while a member.

The provision in the Union’s constitution which proscribes strikebreaking by its terms purports only to define “misconduct of a member.” Nothing in the record indicates that Union members were informed, prior to the bringing of the charges that were the basis of this action, that the provision was interpreted as imposing any obligation on a resignee. Thus, in order to sustain the Union’s position, we would first have to find, contrary to the determination of the Board and of the Court of Appeals, that the Union constitution by implication extended its sanctions to nonmembers, and then further conclude that such sanctions were consistent with the Act. But we are no more disposed to find an implied post-resignation commitment from the strikebreaking proscription in the Union’s constitution here than we were to find it from the employees’ participation in the strike vote and ratification of penalties in Textile Workers. Accordingly, the judgment of the Court of Appeals sustaining the Board’s finding of an unfair labor practice on the part of petitioner Union is

Affirmed.

Mr. Justice Blackmun,

concurring in the judgment.

In NLRB v. Textile Workers, 409 U. S. 213 (1972), the strikebreaking employees, while they were members of the union, had all voted to strike. On the day following the inception of the strike, these employees also voted in favor of a union resolution that anyone aiding or abetting the company during the strike would be subject to a fine. And all had participated in the strike prior to resigning from the union.

I was in solitary dissent in Textile Workers, id., at 218. I emphasized there that “it seems likely that the three factors of a member’s strike vote, his ratification of strikebreaking penalties, and his actual participation in the strike, would be far more reliable indicia of his obligation to the union and its members than the presence of boilerplate provisions in a union’s constitution,” id., at 220; that the Court’s opinion seemed to me "to exalt the formality of resignation over the substance of the various interests and national labor policies that [were] at stake,” id., at 221; that § 7 of the National Labor Relations Act “does not necessarily give him .{the employee] the right to abandon these [union] activities in midcourse once he has undertaken them voluntarily,” id., at 222, quoting from 446 F, 2d 369, 373; and that the policy of § 7 would not be frustrated by a holding that an employee, in the circumstances of that case, could “knowingly waive his § 7 right to resign from the union and to return to work without sanction.” 409 U. S., at 222-223.

The present case, however, is a very different situation. None of the Boeing employees who resigned from the Union had been given notice of a strikebreaking penalty before the strike vote or before their participation in the strike. The imposition of a penalty was never ratified formally by the union membership. The members were not notified that post-resignation strikebreaking was proscribed and would subject them to union discipline. And the provision in the Union’s constitution, referred to by the Court, ante, at 89, as to a member’s general obligation to refrain from strikebreaking, surely does not make up for this lack of notice, and it would not do so even if it were clearly applicable, which it is not, to strikebreaking after resignation from the Union.

Without effective notice of obligations that are supposed to be assumed, there can be no waiver of a member’s § 7 right to refrain from participation in a legal strike. In the absence of such notice, § 8 (b)(1) (A) bars the union from subjecting a member to a choice between the substantial obligation of weathering the strike and that of being subjected to court-collectible fines for failure to do so.

I, therefore, join in the Court’s judgment.

       The expired collective agreement contained a maintenance-of-membership provision that required new employees, as a condition of continued employment, to become members of the Union unless they notified both the Union and the Company within 40 days of accepting employment that they did not wish to join. Further, Union members were required to maintain their membership during the life of the contract.

       The remaining employees who returned to work during the strike did not resign from the Union.

       A standard fine of $450 was imposed on each of the disciplined employees. The amount was reduced, however, for those few members who appeared at their hearings, apologized for their actions, and pledged loyalty to the Union.

       None of the $450 fines has been paid, but reduced fines have been paid in a few instances.

       Section 8 (b)(1)(A) of the Act provides, in relevant part:
      “It shall be an unfair labor practice for a labor organization or its agents—
      “(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . . .”

       Section 7 of the Act provides, in relevant part:
      “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities . . .

       It was stipulated in that case that all 31 of the employees who resigned from the Union during the strike and returned to work participated in the strike vote, and voted in favor of the strike. NLRB v. Textile Workers, 409 U. S. 213, 219 n. 2 (Blackmun, J., dissenting).

       Since the collective-bargaining agreement expired prior to the times of the resignations, the maintenance-of-membership clause therein was no impediment to resigning.

       The Union points out in its brief that at the 1972 International Union convention its interpretation of the strikebreaking proscription was made explicit. This constitutional amendment, made seven years after the strike here, is persuasive evidence that it was not there before, or at a minimum, that the proscription then existing did not apprise the employees of their asserted obligations to the Union.

       In its reply brief, the Union argues that in Textile Workers there was no limiting rule on post-resignation return to work during the course of the strike, but that in this case, the Union constitution proscribed such conduct. In Textile Workers, however, there was a duly enacted rule prohibiting any member from aiding and abetting the employer during the strike and subjecting violators to a $2,000 fine. On its face, the constitutional proscription here advanced is no broader than that rule.

      See 409 U. S., at 218-219, nn. 1 and 2.


author: Per Curiam.

text:
    SCHOOL BOARD OF CITY OF RICHMOND, VIRGINIA, et al. v. STATE BOARD OF EDUCATION OF VIRGINIA et al.
    No. 72-549.
    Argued April 23, 1973
    Decided May 21, 1973

      George B. Little argued the cause for petitioners in No. 72-549. With him on the briefs was Conrad B. Mattox, Jr. William T. Coleman, Jr., argued the cause for petitioners in No. 72-550. With him on the briefs were Jack Greenberg, James M. Nabrit III, Norman J. Chachkin, Louis B. Lucas, William L. Taylor, and Anthony G. Amsterdam.

      Philip B. Kurland argued the cause for respondents in both cases. With him on the brief were Edward I. Rothschild, Andrew P. Miller, Attorney General of Virginia, William G. Broaddus and D. Patrick Lacy, Jr., Assistant Attorneys General, Frederick T. Gray, Walter E. Rogers, J. Segar Gravatt, R. D. Mcllwaine III, L. Paul Byrne, and J. Mercer White, Jr.

      Solicitor General Griswold argued the cause for the United States as amicus curiae urging affirmance in both cases. With him on the brief were Assistant Attorney General Pottinger, A. Raymond Randolph, Jr., Brian K. Landsberg, and John C. Hoyle

       Together with No. 72-550, Bradley et al. v. State Board of Education of Virginia et al., also on certiorari to the same court.

      Briefs of amici curiae urging reversal in both cases were filed by Stephen J. Poliak, Richard M. Sharp, and David Rubin for the National Education Association, and by Melvin L. Wvlf, Sanford Jay Rosen, and Philip Hirschkop for the American Civil Liberties Union et al. Margie Pitts Hames filed a brief for the Black Parents of Atlanta, Georgia, as amicus curiae urging reversal in No. 72-550.
      Briefs of amici curiae urging affirmance in both cases were filed by David I. Carpían for the Jewish Rights Council, and by Harold H. Fuhrman for the National Suburban League, Ltd. Charles S. Conley and Floyd B. McKissick filed a brief for the Congress of Racial Equality as amicus curiae urging affirmance in No. 72-549.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

Mr. Justice Powell took no part in the consideration or decision of these cases.