author: Mr. Justice Powell Mr. Justice Douglas,

text:
    GATEWAY COAL CO. v. UNITED MINE WORKERS OF AMERICA et al.
    No. 72-782.
    Argued October 15, 1973
    Decided January 8, 1974

      Powell, J., delivered the opinion of the Court, in which BuRger, C. J., and BreNNAN, Stewart, White, Marshall, BlacicmuN, and RehNQUIst, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 388.

      Leonard L. Scheinholtz argued the cause for petitioner. With him on the briefs were Henry J. Wallace, Jr., and Daniel R. Minnick.

      Joseph A. Yablonski argued the cause for respondents. With him on the brief were Clarice R. Feldman and Daniel B. Edelman.

      Briefs of amici curiae urging reversal were filed by Milton A. Smith and Lawrence M. Cohen for the Chamber of Commerce of the United States; by Guy Farmer for the Bituminous Coal Operators’ Assn., Inc.; and by Richard D. Godown and Myron G. Hill, Jr., for the National Association of Manufacturers.

        J. Albert Woll, Laurence Gold, Thomas E. Harris, Stephen I. Schlossberg, and George Kaufmann filed a brief for the American Federation of Labor and Congress of Industrial Organizations et al. as amici curiae urging affirmance.

   Mr. Justice Powell

delivered the opinion of the Court.

This case involves a labor dispute over safety conditions between Gateway Coal Co. and United Mine Workers of America. The questions presented are of considerable importance to the development of federal policy regarding arbitration of safety disputes and enforcement of a contractual duty not to strike.

I

Gateway Coal Co. (the company) owns and operates a large underground coal mine known as the Gateway Mine, in Greene County, Pennsylvania. Some 550 production and maintenance workers, employed by the company, are represented for purposes of collective bargaining by United Mine Workers of America (the union), including its administrative division, District No. 4, and Local No. 6330.

On the morning of April 15, 1971, shortly before the daylight shift at the mine reported for work, a shuttle car operator on the departing midnight shift noticed an unusually low airflow in his section of the mine. His foreman made an anemometer check and discovered an airflow of only 11,000 cubic feet per minute, less than half the normal rate of 28,000 cubic feet per minute. The company evacuated the men from the mine and ordered the day-shift employees to stand by on the surface. An ensuing investigation revealed that the collapse of a ventilation structure had partially blocked an- intake airway. Immediate repairs restored normal airflow, and underground mining operations resumed. In the meantime, however, some 100 of the 226 day-shift employees had disregarded the company’s instructions to stand by and had gone home.

The following morning the union requested reporting pay for those employees who did not stand by as ordered on April 15, but the company refused. The union rejected the company’s offer to arbitrate this dispute, and the miners on all three shifts walked off the job.

On April 17, pursuant to a union request, state and federal inspectors visited the mine to determine the adequacy of the repairs. The investigation revealed that, although collapse of the ventilation structure apparently occurred between 4 and 4:30 on the morning of April 15, records of the anemometer checks purportedly made by three foremen sometime between 5 a. m. and 8 a. m. disclosed no reduction in airflow. The state inspector impounded the book of entries and notified the company that he would press criminal charges against the three foremen for falsification of the records. The company immediately suspended two of the men but decided against suspension of the third because he had reported the trouble.

On Sunday, April 18, about-200 company miners attended a special union meeting and voted not to work unless the company suspended all three foremen. The company acquiesced in this demand, and the following Monday the miners returned to work. Criminal prosecutions were instituted against the three foremen, and the Pennsylvania Department of Environmental Resources undertook consideration of possible decertification proceedings against them.

On May 29, while the criminal charges were still pending, the company received word from the Department that it was at liberty to return the three foremen to work if it so desired. One of the three had retired during his suspension, but the company reinstated the other two and scheduled them to resume work on the midnight shift on June 1. On that date, miners on all three shifts struck to protest the alleged safety hazard created by the presence of the two foremen in the mines. On June 8, the company formally offered to arbitrate this dispute, but the union refused. Subsequently, the two foremen pleaded nolo contendere to the criminal charges for falsification of the records and paid fines of $200 each.

Faced with a continuing strike and a refusal to arbitrate, the company invoked the jurisdiction of the District Court under § 301 of the Labor Management Relations Act, 1947, 61 Stat. 166, 29 U. S. C. § 185. It argued that the broad arbitration clause of the collective-bargaining agreement governed this dispute and requested an injunction against continuance of the strike. In a temporary restraining order later converted into a preliminary injunction, the District Court required the union to end the_ strike and to submit the dispute to an impartial umpire without delay. The order further providéd for suspension of the two foremen pending the umpire's decision and prospectively required both parties to abide by his resolution of the controversy.

On appeal, the Court of Appeals for the Third Circuit, with one judge dissenting, reversed the judgment of the District Court and vacated the preliminary injunction. 466 F. 2d 1157 (1972). The court intimated that a special provision of the collective-bargaining agreement involved here might be construed to remove safety disputes from the coverage of the general arbitration clause and reasoned that, in any event, the usual federal policy favoring arbitration of labor relations disputes did not apply to questions concerning safety. Id., at 1159-1160. Relying in part on § 502 of the Labor Management Relations Act, 29 U. S. C. § 143, the court found that there was a public policy disfavoring compulsory arbitration of safety disputes. Since it was “neither particularly stated nor unambiguously agreed in the labor contract that the parties shall submit mine safety disputes to binding arbitration,” the Court of Appeals concluded that the union had no contractual duty to submit this controversy to arbitration and hence no implied obligation not to strike. 466 F. 2d, at 1159. Perceiving no wrong to enjoin, the court found it unnecessary to consider whether injunctive relief in this case was appropriate under the traditional considerations of equity set forth by this Court in Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235 (1970). We granted certiorari, 410 U. S. 953 (1973).

This case presents three questions. First, did the collective-bargaining agreement then in force between these parties impose on them a compulsory duty to submit safety disputes to arbitration by an impartial umpire? Second, if so, did that d'uty to arbitrate give rise to an implied no-strike obligation supporting issuance of a Boys Markets injunction? Third, did the circumstances of this case satisfy the traditional equitable considerations controlling the availability of injunctive relief? We answer all three questions in the affirmative and accordingly reverse the judgment below.

II

No obligation to arbitrate a labor dispute arises solely by operation of law. The law compels a party to submit his grievance to arbitration only if he has contracted to do so. At all times material to this case, the parties were bound by the National Bituminous Coal Wage Agreement of 1968 (the agreement). The section of the agreement entitled “Settlement of Local and District Disputes” provides for resolution of grievances by direct negotiation between the parties and ultimately, should such negotiations fail, for arbitration by an impartial umpire “mutually agreed upon by the operator or operators affected and . . . the United Mine Workers of America.” The section further states that the “decision of the umpire shall be final.” This arbitration clause governs disputes “as to the meaning and application of the provisions of this agreement,” disputes “about matters not specifically mentioned in this agreement,” and “any local trouble of any kind aris[ing] at the mine.” Paragraph 3 of the “Miscellaneous” section of the agreement states that both parties “agree and affirm . . . that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the 'Settlement of Local and District Disputes’ section . . . It excepts from the arbitration obligation only those disputes “national in character.”

This arbitration provision appears sufficiently broad to encompass the instant dispute. The contractual obligation reaches “any local trouble of any kind aris[ing] at the mine,” and the continued presence in Gateway Mine of two particular foremen is plainly a local issue. On its face, this contractual language admits of only one interpretation: that the agreement required the union to submit this dispute to arbitration for resolution by an impartial umpire.

The Court of Appeals avoided this conclusion by reference to an assumed public policy disfavoring arbitration of safety disputes. The majority of that court recognized that the usual federal policy encourages arbitration of labor disputes but reasoned that this presumption of arbitrability applies only to disagreements over “wages, hours, seniority, vacations and other economic matters.” 466 F. 2d, at 1159. The court thought that safety disputes, should be treated as sui generis, and concluded that it should “reject any avoidable construction of a labor contract as requiring final disposition of safety disputes by arbitration.” Id., at 1160. We disagree.

The federal policy favoring arbitration of labor disputes is firmly grounded in congressional command. Section 203 (d) of the Labor Management Relations Act, 29 U. S. C. § 173 (d), states in part:

“Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.”

In the Steelworkers trilogy, this Court enunciated the now well-known presumption of arbitrability for labor disputes:

“An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U. S. 574, 582-583 (1960).

The Court also elaborated the basis for this policy. It noted that commercial arbitration and labor arbitration have different objectives. In the former case, arbitration takes the place of litigation, while in the latter “arbitration is the substitute for industrial strife.” Id., at 578. A collective-bargaining agreement cannot define every minute aspect of the complex and continuing relationship between the parties. Arbitration provides a method for resolving the unforeseen disagreements that inevitably arise. And in resolving such disputes, the labor arbitrator necessarily and appropriately has resort to considerations foreign to the courts:

“The labor arbitrator’s source of law is not confined to the express provisions of the contract, as the industrial common law — the practices of the industry and the shop — is equally a part of the collective bargaining agreement although not expressed in it. The labor arbitrator is usually chosen because of the parties’ confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment. The parties expect that his judgment of a particular grievance will reflect not only what the contract says but, insofar as the collective bargaining agreement permits, such factors as the effect upon productivity of a particular result, its consequence to the morale of the shop, his judgment whether tensions will be heightened or diminished. For the parties’ objective in using the arbitration process is primarily to further their common goal of uninterrupted production under the agreement, to make the agreement serve their specialized needs.” Id., at 581-582.

We think these remarks are as applicable to labor disputes touching the safety of the employees as to other varieties of disagreement. Certainly industrial strife may as easily result from unresolved controversies on safety matters as from those on other subjects, with the same unhappy consequences of lost pay, curtailed production, and economic instability. Moreover, the special expertise of the labor arbitrator, with his knowledge of the common law of the shop, is as important to the one case as to the other, and the need to consider such factors as productivity and worker morale is as readily apparent.

The Court of Appeals majority feared that an arbitrator might be too grudging in his appreciation of the workers’ interest in their own safety. We see little justification for the court’s assumption, especially since the parties are always free to choose an arbitrator whose knowledge and judgment they trust. We also disagree with the implicit assumption that the alternative to arbitration holds greater promise for the protection of employees. Relegating safety disputes to the arena of economic combat offers no greater assurance that the ultimate resolution will ensure employee safety. Indeed, the safety of the workshop would then depend on the relative economic strength of the parties rather than on an informed and impartial assessment of the facts.

We therefore conclude that the “presumption of arbi-trability” announced in the Steelworkers trilogy applies to safety disputes, and that the dispute in the instant case is covered by the arbitration clause in the parties’ collective-bargaining agreement.

Ill

The second question is whether the District Court had authority to enjoin the work stoppage. The answer depends on whether the union was under a contractual duty not to strike. In Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235 (1970), the Court considered the proper accommodation between the literal terms of § 4 of the Norris-LaGuardia Act and the subsequently enacted provisions of § 301 (a) of the Labor Management Relations Act. The Court noted the shift in congressional emphasis “from protection of the nascent labor movement to the encouragement of collective bargaining and to administrative techniques for the peaceful resolution of industrial disputes.” 398 U. S., at 251. It concluded that § 301 (a) empowers a federal court to enjoin violations of a contractual duty not to strike.

Although the collective-bargaining agreement in Boys Markets contained an express no-strike clause, injunctive relief also may be granted on the basis of an implied undertaking not to strike. In Teamsters Local v. Lucas Flour Co., 369 U. S. 95 (1962), the Court held that a contractual commitment to submit disagreements to final and binding arbitration gives rise to an implied obligation not to strike over such disputes. Indeed, the strong federal policy favoring arbitration of labor disputes was the linchpin of this Court’s reasoning in Boys Markets. Denial of all equitable relief for breaches of no-strike obligations would have carried “devastating implications for the enforceability of arbitration agreements.” 398 TJ. S., at 247. As Mr. Justice Brennan stated for the Court in that case:

“[A] no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration. . . . Any incentive for employers to enter into such an arrangement is necessarily dissipated if the principal and most expeditious method by which the no-strike obligation can be enforced is eliminated.” Id., at 248. (Citation omitted.)

Thus, an arbitration agreement is usually linked with a concurrent no-strike obligation, but the two issues remain analytically distinct. Ultimately, each depends on the intent of the contracting parties. It would be unusual, but certainly permissible, for the parties to agree to a broad mandatory arbitration provision yet expressly negate any implied no-strike obligation. Such a contract would reinstate the situation commonly existing before our decision in Boys Markets. Absent an explicit expression of such an intention, however, the agreement to arbitrate and the duty not to strike should be construed as having coterminous application.

In the present case, the Court of Appeals identified two provisions which it thought excepted safety disputes from the general no-strike obligation. The first is § (e) of the collective-bargaining agreement, which provides for a union mine safety committee at each mine. As this section was thought central to the outcome of this case, we set forth the relevant provisions in full:

“The mine safety committee may inspect any mine development or equipment used in producing coal. If the committee believes conditions found endanger the life [sic] and bodies of the mine workers, it shall report its findings and recommendations to the management. In those special instances where the committee believes an immediate danger exists and the committee recommends that the manage- . ment remove all mine workers from the unsafe area, the operator is required to follow the recommendation of the committee.
“If the safety committee in closing down an unsafe area acts arbitrarily and capriciously, members of such committee may be removed from the committee. Grievances that may arise as a result of a request for removal of a member of the safety committee under this section shall be handled in accordance with the provisions providing for settlement of disputes.” App. 12a.

The union contends that this- provision reserves to the workers the right to strike over safety disputes and also that the committee’s determination of “immediate danger” may be wholly subjective and without foundation in fact. In short, the safety committee may object to any aspect of mine operation as an “immediate danger” and call the workers off the job to force whatever changes it proposes. The union further argues that since the exercise of this option cannot constitute a breach of the collective-bargaining agreement, the District Court had no wrong to enjoin.

We need not decide whether § (e) is subject to such an expansive reading, for, as the District Court found, that section was never invoked in this controversy. The safety committee did inspect the mine to determine the cause of the ventilation failure, but there was no showing that it ever reported findings or made recommendations to the company management. Nor was there any showing that the committee found conditions dangerous to the “life [sic] and bodies of the mine workers” or which, if any, of its members formed the requisite belief in the existence of “an immediate danger.”

The Court of Appeals majority apparently believed that the vote by the local membership, the body superior to the union safety committee, constituted substantial compliance with the purpose and intent of § (e) and obviated any need for compliance with the formal procedure. As a matter of simple contractual interpretation, we think that proposition doubtful. Under the union’s construction of § (e), the committee’s good-faith belief in the existence of an immediate danger, no matter how unfounded that view, is conclusive. The management’s only recourse against arbitrary and capricious decisions by the committee is to seek removal of the offending members. Circumvention of the procedures of § (e), including a formal vote by the committee members, thus removes the only deterrent to unreasonable action by the committee. Given this circumstance, one would not lightly assume that failure to follow the specific procedures outlined in § (e) is somehow de minimis. In any event, whether the union properly invoked this provision is a substantial question of contractual interpretation, and the collective-bargaining agreement explicitly commits to resolution by an impartial umpire all disagreements “as to the meaning and application of the provisions of this agreement.”

The Court of Appeals majority also based its denial of injunctive relief on § 502 of the Labor Management Relations Act, 29 U. S. C. § 143, which provides in part:

“[N]or shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter.”

This section provides a limited exception to an express or implied no-strike obligation. The Court of Appeals held that “a refusal to work because of good faith apprehension of physical danger is protected activity and not enjoinable, even where the employees have subscribed to a comprehensive no-strike clause in their labor contract.” 466 F. 2d, at 1160. We agree with the main thrust of this statement — that a work stoppage called solely to protect employees from immediate danger is authorized by § 502 and cannot be the basis for either a damages award or a Boys Markets injunction.

The Court of Appeals majority erred, however, in eon-eluding that an honest belief, no matter how unjustified, in the existence of “abnormally dangerous conditions for work” necessarily invokes the protection of § 502. If the courts require no objective evidence that such conditions actually obtain, they face a wholly speculative inquiry into the motives of the workers. As Judge Rosenn pointed out in his dissent from the judgment below, the difficulty occasioned by this view is especially apparent where, as here, the claim concerns not some identifiable, presently existing threat to the employees’ safety, but rather a generalized doubt in the competence and integrity of company supervisors. Any employee who believes a supervisor or fellow worker incompetent and who honestly fears that at some future time he may commit some unspecified mistake creating a safety hazard could demand his colleague’s discharge and walk off the job despite the contractual agreement not to do so. Absent the most explicit statutory command, we are unwilling to conclude that Congress intended the public policy favoring arbitration and peaceful resolution of labor disputes to be circumvented by so slender a thread as subjective judgment, however honest it may be. We agree with Judge Rosenn that a union seeking to justify a contractually prohibited work stoppage under § 502 must present “ascertainable, objective evidence supporting its conclusion that an abnormally dangerous condition for work exists.” 466 F. 2d, at 1162. We find this reading of the statute consistent both with common sense and with its previous application. See, e. g., Philadelphia Marine Trade Assn. v. NLRB, 330 F. 2d 492 (CA3), cert, denied sub nom. International Longshoremen’s Assn. v. NLRB, 379 U. S. 833 and 841 (1964); NLRB v. Fruin-Colnon Construction Co., 330 F. 2d 885 (CA8 1964); NLRB v. Knight Morley Corp., 251 F. 2d 753 (CA6 1957), cert. denied, 357 U. S. 927 (1958); Redwing Carriers, Inc., 130 N. L. R. B. 1208 (1961), enf’d as modified, sub nom. Teamsters Local 79 v. NLRB, 117 U. S. App. D. C. 84, 325 F. 2d 1011 (1963), cert. denied, 377 U. S. 905 (1964).

IV

On the facts of this case, we think it clear that § 502 did not deprive the District Court of authority to enforce the contractual no-strike obligation. The union inferred from the foremen's failure to record the reduced airflow on the morning of April 15 that their return to the job created an abnormally dangerous working condition. One may doubt whether this assertion alone could suffice to invoke the special protection of § 502. In any event, the District Court resolved the issue by expressly conditioning injunctive relief on the suspension of the two foremen pending decision by the impartial umpire.

For similar reasons, it is also evident that injunctive relief was appropriate in the present case under the equitable principles set forth in Boys Markets, Inc. v. Retail Clerks Union, 398 U. S., at 254. The District Court found that the union’s continued breach of its no-strike obligation would cause irreparable harm to the petitioner. It eliminated any safety issue by suspending the two foremen pending a final arbitral decision. In these circumstances, we cannot say that the District Court abused its discretion.

The judgment of the Court of Appeals is

Reversed.

Mr. Justice Douglas,

dissenting.

I

The dispute in this labor case does not involve hourly wages, pension benefits, or the like. It involves the life and death of the workers in the most dangerous occupation in America. The history of the coal miner is a history of fatal catastrophes, which have prompted special protective legislation. Nor was the mine involved here an exception. It is classified by the United States Bureau of Mines as “especially hazardous,” triggering special inspection procedures to insure the safety of the men who work it. Federal Coal Mine Health and Safety Act of 1969, § 103 (i), 83 Stat. 750, 30 U. S. C. § 813 (i). Congress has received testimony about safety problems at this mine in which the workers, a year before this dispute, complained of the supervisors’ negligence in safety matters, particularly their practice of “not testing for gas.” At those hearings Senator Harrison Williams, the principal author of the 1969 mine safety act, commented that the enforcement performance of the United States Bureau of Mines was “outrageous . . . just plain unbelievable.”

It was in the context of this history that the workers discovered that three of their foremen had negligently failed to check and record the airflow in the mine before the daylight shift began, as was their duty. Instead they made false entries in their log books. As a result, they had not discovered that the airflow in the mine was 11,000 cubic feet per minute rather than the normal 28,000. Reduced airflow can result in a buildup of methane gas, creating conditions for accidental explosions resulting from the operation of normal mining equipment. The workers walked off the job and refused to return unless the foremen were removed. The majority passes off the workers’ concern here as only “a generalized doubt in the competence and integrity of company supervisors” as if there were only unfounded fears about a few men in an operation with an exemplary safety record. Yet the foremen in question pleaded nolo contendere to state charges of falsifying the records involved in this incident, and their admitted misfeasance is precisely the kind of reckless disregard for thé miners’ safety which permeates the history of this industry.

In response to this history, the union obtained, in the collective-bargaining agreement in force during this incident, a provision for a union “mine safety committee” with the authority to present the mine operator with a binding “recommendation” that all workers be removed from an unsafe mine area. The agreement provides no recourse for the operator in disagreement with the committee’s determinations, although he may subsequently seek removal from the committee of members he believes to have acted arbitrarily. Yet it is clear from this provision that the union reserved to itself the authority to determine that a mine be closed because of safety hazards. Although there is an explicit provision that a dispute over whether a committee member should be removed is arbitrable, there is no such provision for arbitration if the mine operator disagrees with the committee’s recommendation. The inescapable inference, absent any contrary presumption, is that this question is not subject to arbitration. And in what clearly appears to be a buttress to the union’s authority in this matter, all no-strike provisions from prior contracts were explicitly excluded from the agreement in question here, which contains no such commitment on the part of the union.

This is the contractual context in which the employer brought this action, under § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185, to compel arbitration of the safety dispute and enjoin the work stoppage. It is, of course, clearly established that because of congressional policy favoring arbitration of labor disputes, a general arbitration provision, as found in the agreement here in question, is broadly construed. Steelworkers trilogy (United Steelworkers of America v. American Mfg. Co., 363 U. S. 564; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U. S. 574; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U. S. 593). This policy is grounded, as the majority points out, in the expression of policy by the Labor Management Relations Act. And once a dispute is determined to be arbitrable, there is an implied agreement by the union not to strike, Teamsters Local v. Lucas Flour Co., 369 U. S. 95, which is enforceable by a federal court injunction under the principles enunciated in Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235, because of the close relationship between the duty to arbitrate and the duty not to strike. Lucas Flour, supra, at 104-106; Boys Markets, supra, at 247-249.

Yet this whole scheme, grounded as it is on congressional expression of policy, must allow for any congres-sionally indicated exceptions to that policy. In a § 301 suit the federal courts are to apply federal law “which the courts must fashion from the policy of our national labor laws.” Textile Workers v. Lincoln Mills, 353 U. S. 448, 456. Although the “presumption of arbitrability” might be sufficient in the ordinary case to overcome the contrary implications in the collective-bargaining agreement involved here, I find that presumption seriously weakened in the area of safety disputes by § 502 of the Labor Management- Relations Act, 29 U. S. C. § 143, which expressly shields walk-offs by workers concerned for their safety: That section reads in part: “[N]or shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter.” Although there is nothing in the legislative history of this section to shed light on its purpose, the words of the section are themselves fairly clear. They recognize in the law what is in any case an unavoidable principle of human behavior: self preservation. As Judge Hastie said for the majority in the Court of Appeals: “Men are not wont to submit matters of life or death to arbitration . . . 466 F. 2d 1157, 1160.

This is an area involving “the penumbra of express statutory mandates” to be solved “by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy.” Lincoln Mills, supra, at 457. Although there is a general policy favoring arbitration, I do not find that Congress intended to extend that policy here. Application of the “presumption of arbi-trability” is not inevitable in every labor dispute. But miners’ determination to act to protect their own safety is as inevitable in labor disputes as elsewhere. Absent any presumption, I cannot find that the dispute here was arbitrable or that the union was under any duty not to strike. It follows then, as the Court of Appeals found, that there was no wrong to remedy.

II

Congress in 1969 set up pervasive administrative controls over working and environmental conditions with the coal mines, 83 Stat. 742. The need for a more effective regulatory scheme was described in H. R. Rep. No. 91-563. The 1969 Act states in its findings and purpose that “the first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource — the miner.” § 2 (a), 30 U. S. C. § 801 (a). Ease of investigating mines was insured. The Act provides that when a representative of the miners believes that a violation of a mandatory standard exists and an imminent danger exists, the right of immediate inspection is given the Federal Government. § 103 (g), 30 U. S. C. § 813 (g). The Secretary of the Interior may make a spot investigation of a mine for five working days when he believes hazardous conditions exist. § 103 (i), 30 U. S. C. §813 (i). Once a hazardous condition is found the Secretary can order that all miners be evacuated from the area and prohibited from entering it. § 104 (a), 30 U. S. C. § 814 (a). The Secretary can abate mining in incipient or potential mining areas, § 105, 30 U. S. C. § 815; and his orders are within limits subject to judicial review by the miners as well as by the operators. § 106, 30 U. S. C. § 816.

Detailed ventilating requirements are placed in the Act, § 303, 30 U. S. C. § 863; and examinations of each mine must be made. within “three hours immediately preceding the beginning of any shift.” § 303 (d) (1), 30 U. S. C. § 863 (d)(1). Examinations for hazardous conditions must be made at least once a week, § 303 (f), 30 U. S. C. § 863 (f); and weekly investigations of ventilating conditions must be made and various monitors which detect dangerous gases must be installed, § 303 (1), 30 U. S. C. § 863 (l). The regulatory scheme covers the subject matter in minute detail.

Penalties run against operators of mines and also against miners who violate in specified ways “mandatory safety standards.” Compensation of miners laid off by closed mines is provided, § 110 (a), 30 U. S. C. § 820 (a); and miners are protected against discharge or other discrimination by protests they have made against the operations by testimony they have given. § 110 (b), 30 U. S. C. §820 (b).

Title IV of the Act treats disability payments and payments for the death of miners. It bolsters state workmen's compensation laws and makes the owners liable, through self-insurance or through liability insurance, where an adequate state law does not exist, § 423, 30 U. S. C. § 933. State laws inconsistent with the federal act are suspended; but state laws which provide more stringent standards or controls survive, § 506, 30 U. S. C. § 955.

A close reading of this Act convinces me that it must displace all agreements to arbitrate safety conditions. It is in that respect a more extreme case than U. S. Bulk Carriers v. Arguelles, 400 U. S. 351, where we held that a federal statute giving seamen a specific judicial remedy was not displaced by arbitration. When it comes to health, safety of life, or determination of environmental conditions within the mines, Congress has pre-empted the field. An arbiter is no part of the paraphernalia described in the Act. An arbiter seeks a compromise, an adjustment, an accommodation. There is no mandate in arbitration to apply a specific law. Those named in the present Act who construe, apply, and formulate the law are the Secretary and the courts.

Moreover, arbitration awards might compromise administration of the 1969 Act. Rulings of arbiters might not jibe with rulings of the Secretary. Rulings of the arbiters might even color claims for compensation or damages by negativing the very basis of liability either in workmen's compensation Acts or in state lawsuits for damages.

Hence, though I disagree with the way in which the Court reads this particular arbitration clause, I conclude that even though the collective-bargaining agreement is read to authorize arbitration, the 1969 Act precludes it. The 1969 Act specifies the arms of the law which handle these matters of safety of mines. Congress has given arbiters no share of the power.

       While this reduced airflow undoubtedly increased the accumulation of coal dust and flammable gas in the mine, it still exceeded the state ventilation requirement of 6,000 cubic feet per minute, Pa. Bituminous Coal Mine Act, Pub. L. 659 (1961), Pa. Stat. Ann., Tit. 52, § 701-242 (b) (1966), and the federal requirement of 9,000 cubic feet per minute, Federal Coal Mine Health and Safety Act of 1969, §303 (b), 83 Stat. 767,' 30 U. S. C. §863 (b).

       Section 303 (d)(1) of the Federal Coal Mine Health and Safety Act of 1969, 30 U. S. C. §863 (d)(1), requires such inspections within three hours immediately prior to the beginning of any shift.

       After its investigation, the Department concluded that:
      “In view of the satisfactory record and good performance of these foreman [sic] in the past and the pending legal action, we feel that no further action should be taken in this matter. The coal company is at liberty to return the three (3) assistant foreman [sic] to work if it so desires.” App. 16a-17a.

       The District Court found that the present work stoppage was occasioned by a safety dispute over the reinstatement of the suspended foremen rather than by an economic dispute over reporting pay for April 15.

       While the appeal was pending and prior to the Court of Appeals’ decision, the impartial umpire rendered his decision in favor of the company and determined; inter alia, that the two foremen should be permitted to return to work. 466 F. 2d 1157, 1159.

       This section provides, in relevant part:
      “Should differences arise between the Mine Workers and the operators as to the meaning and application of the provisions of this agreement, or should differences arise about matters not specifically mentioned in this agreement, or should any local trouble of any kind arise at the mine, an earnest effort shall be made to settle such differences immediately: (The parties will not be represented by legal counsel at any of the steps below.)
      “1. Between the aggrieved party and the mine management.
      “2. Through the management of the mine and the mine committee.
      “3. Through district representatives of the United Mine Workers of America and a commissioner representative (where employed) of the coal company.
      “4. By a board consisting of four members, two of whom shall be designated by the Mine Workers and two by the operators. Neither the Mine Workers’ representatives on the board nor the operators’ representatives on the board shall be the same persons who participated in steps (1), (2), or (3) of this procedure.
      “5. Should the board fail to agree the matter shall, within twenty (20) days after decision by the board, be referred to an umpire to be mutually agreed upon by the operator or operators affected and by the duly designated representatives of the United Mine Workers of America, and the umpire so agreed upon shall expeditiously and without delay decide said case. The decision of the umpire shall be final. Expenses and salary incident to the services of an umpire shall be paid equally by the operator or operators affected and by the Mine Workers.
      “A decision reached at any stage of the proceedings above outlined shall be binding on both parties hereto and shall not be subject to reopening by any other party or branch of either association except by mutual agreement.” App. 13a-14a.

       Paragraph 3 provides:
      “The United Mine Workers of America and the operators agree and affirm that they will maintain the integrity of this contract and that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the 'Settlement of Local and District Disputes’ section of this agreement unless national in character in which event the parties shall settle such disputes by free collective bargaining as heretofore practiced in the industry, it being the purpose of this provision to provide for the settlement of all such disputes and claims through the machinery in this contract provided and by collective bargaining without recourse to the courts.” App. 15a.

       In finding a public policy disfavoring arbitration of safety disputes, the court reasoned as follows:
      “Considerations of economic peace that favor arbitration of ordinary disputes have little weight here. Men are not wont to submit matters of life or death to arbitration and no enlightened society encourages, much less requires, them to do so. If employees believe that correctible circumstances are unnecessarily adding to the normal dangers of their hazardous employment, there is no sound reason for requiring them to subordinate their judgment to that of an arbitrator, however impartial he may be. The arbitrator is not staking his life on his impartial decision. It should not be the policy of the law to force the employees to stake theirs on his judgment.” 466 F. 2d, at 1160.
      We find this analysis unpersuasive for the reasons stated in this section of our opinion.
      The Court of Appeals also relied on § 502 of the Labor Management Relations Act, 29 U. S. C. § 143. Section 502 provides that “the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work” shall not “be deemed a strike under this chapter.” On its face, this section appears to bear more directly on the scope of the no-strike obligation than on the arbitrability of safety disputes. Indeed, there is nothing in the legislative history to suggest that § 502 was intended as a limit on arbitration. See 1 Legislative History of the Labor Management Relations Act, 1947, pp. 29, 156, 290, 436, 573, 895 (G. P. O. 1948). For this reason, we reserve our discussion of § 502 until Part III of this opinion. To the extent that § 502 might be relevant to the issue of arbitrability, we find that the considerations favoring arbitrability outweigh the ambiguous import of that section in the present context.

        United Steelworkers of America v. American Mfg. Co., 363 U. S. 564 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U. S. 593 (1960).

         The Court of Appeals also found support for its refusal to order arbitration in § (e) of the collective-bargaining agreement. Section (e) provides for an employee mine safety committee empowered to inspect mine facilities and equipment and to report its findings to the management. If the committee finds an “immediate danger,” it may make a binding recommendation to remove all workers from the unsafe area.
      Although the Court of Appeals did not state that § (e) was an express exception to the arbitration clause, it evidently believed that the section created an ambiguity in the agreement which had to be resolved against arbitrability. However, as the Court stated in United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, “[d]oubts should be resolved in favor of coverage.” 363 U. S., at 583. Thus, “[i]n the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad.” Id., at 584-585. Since § (e) clearly does not constitute an express exception to the arbitration clause, it follows that the safety dispute in the instant case must be deemed to fall within the broad arbitration clause.
      The dissent maintains that the Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 742, 30 U. S. C. § 801 et seq., pre-empts the field and “displace [s] all agreements to arbitrate safety conditions.” Post, at 394. Respondents have not made this contention, and a fair reading of the Act discloses no congressional intention, either express or implied, to accomplish such a drastic result.

       “No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
      “(a) Ceasing or refusing to perform any work or to remain in any relation of employment . . . .” 47 Stat. 70, 29 U. S. C. § 104.

       “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” 29 U. S. C. § 185 (a).

       398 U. S., at 239 n. 3.

        Lucas Flour involved a damages action for breach of the implied no-strike obligation, while the present case involves injunctive relief. The policy reasons favoring the availability of injunctive relief, however, are equally compelling. As the Court stated in Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235, 248 (1970):
      “[A]n award of damages after a dispute has been settled is no substitute for an immediate halt to an illegal strike. Furthermore, an action for damages prosecuted during or after a labor dispute would only tend to aggravate industrial strife and delay an early resolution of the difficulties between employer and union.”

       Respondents also argue that Paragraph 1 of the “Miscellaneous” section of the agreement disavows any intent to impose a no-strike duty. Paragraph 1 provides:

        “1. Any and all provisions in either the Appalachian Joint Wage Agreement of June 19, 1941, or the National Bituminous Coal Wage Agreement of April 11, 1945, containing any 'no strike’ or ‘penalty’ clause or clauses or any clause denominated ‘Illegal Suspension of Work’ are hereby rescinded, cancelled, abrogated and made null and void.” App. 14a.
      This paragraph effectively rescinds certain no-strike clauses in two prior agreements. It does not, however, purport to negate any no-strike duty created by the present agreement. As we have noted, the agreement makes arbitration the exclusive and compulsory means for finally resolving disputes. Under Teamsters Local v. Lucas Flour Co., 369 U. S. 95 (1962), this arbitration provision gives rise to an implied no-strike duty. We do not think that Paragraph 1 can be fairly construed as an exception to that no-strike duty. Cf. Lewis v. Benedict Coal Corp., 259 F. 2d 346 (CA6 1958) (Stewart, J.), affirmed by an equally divided Court, sub nom. Mine Workers v. Benedict Coal Corp., 361 U. S. 459 (1960).

       Judge Rosenn contended with justification that a wholly subjective test would open “new and hazardous avenues in labor relations for unrest and strikes.” He stated:
      “This test will require a court to accept the naked assertion of an employee that the presence of one of his fellow employees in a plant constitutes a safety hazard. If employees may label another employee a working risk and thereupon engage in a work stoppage which, because of its characterization as a safety strike, is unreviewable by arbitration or court, no employer can expect stability in labor relations. Moreover, each employee is the possible victim of the attitudes, fancies and whims of his fellow employees. Unions, themselves, will be at the mercy of 'wildcatters.’ ” 466 F. 2d, at 1162.

       Bureau of Labor Statistics, Injury Rates by Industry, 1970, pp. 3, 6 (Report No. 406, 1972).

       S. Rep. No. 91-411, pp. 3-6; H. R. Rep. No. 91-563, pp. 1-3.

       Hearings on Health and Safety in the Coal Mines before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 91st Cong., 2d Sess., 27, 351 (1970).

         Id., at 191.

       This inference is strengthened by the agreement’s provisions for arbitration if the operator objected to recommendations by federal coal mine inspectors. § (b) (2) of the agreement. There would obviously be no need for this special arbitration provision if the parties felt that safety questions could be handled through the regular arbitration machinery.
      Indeed the provision in question here has a long history supporting this construction. The 1946 agreement, known as the Krug-Lewis agreement, and arising from President Truman’s seizure of the mines in 1946, United States v. United Mine Workers of America, 330 U. S. 258, expressly permitted union safety committees to initiate safety stoppages, although the Federal Coal Mines Administrator (Capt. N. H. Collisson), was given authority to halt such a stoppage. At hearings following the Centralia mine disaster, resulting in the death of 111 miners, Secretary of the Interior Krug testified that the meaning of the provision “was to give the mine safety committee complete authority to get the men out of the mine, if they felt the mine was unsafe . . . .” Hearings pursuant to S. Res. 98 before a Special Subcommittee of the Senate Committee on Public Lands, 80th Cong., 1st Sess., 312. The predecessor to the current provision appeared in the National Bituminous Coal Wage Agreement of 1947, which deleted Collisson’s authority to override the miners.

       The hazards of various working conditions to the health of workers have been of great concern to Congress, its latest Act being the Occupational Safety and Health Act of 1970, 84 Stat. 1590, which in terms does not exclude employees who are in the coal-mining business. The Act looks toward increasing the quality of the environment in which employees work and of improving-the workmen’s compensation system under which they are protected. See Brodeur, Casualties of the Workplace, New Yorker, Nov. 19, 1973, p. 87, for an account of the industrial-medical complex that works .to keep plants profitable to the owners and dangerous to the workers.


source: Caselaw Access Project

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

license: Public Domain

text:
    UNITED STATES v. MAZE
    No. 72-1168.
    Argued November 13-14, 1973
    Decided January 8, 1974
    Rehnquist, J., delivered the opinion of the Court, in which Douglas, Stewart, Marshall, and Powell, JJ., joined. Burger, C. J., filed a dissenting opinion, in which White, J., joined, post, p. 405. White, J., filed a dissenting opinion, in which Burger, C. J., and BreNNAN and Blackmun, JJ., joined, post, p. 408.

      Jewel S. Lafontant argued the cause for the United States. On the brief were Solicitor General Bork, Assistant Attorney General Petersen, and Jerome M. Feit.

      William T. Warner, by appointment of the Court, post, p. 997, argued the cause and filed a brief for respondent.
   Mr. Justice Rehnquist

delivered the opinion of the Court.

In February 1971 respondent Thomas E. Maze moved to Louisville, Kentucky, and there shared an apartment with Charles L. Meredith. In the spring of that year respondent’s fancy lightly turned to thoughts of the sunny Southland, and he • thereupon took Meredith’s BankAmericard and his 1968 automobile and headed for Southern California. By presenting the BankAmericard and signing Meredith’s name, respondent obtained food and lodging at motels located in California, Florida, and Louisiana. Each of these establishments transmitted to the Citizens Fidelity Bank & Trust Co. in Louisville, which had issued the BankAmericard to Meredith, the invoices representing goods and services furnished to respondent. Meredith, meanwhile, on the day after respondent’s departure from Louisville, notified the Louisville bank that his credit card had been stolen.

Upon respondent’s return to Louisville he was indicted on four counts of violation of the federal mail fraud statute, 18 U. S. C. § 1341, and one count of violation of the Dyer Act, 18 U. S. C. § 2312. The mail fraud counts of the indictment charged that respondent had devised a scheme to defraud the Louisville bank, Charles L. Meredith, and several merchants in different States by unlawfully obtaining possession of the BankAmericard issued by the Louisville bank to Meredith, and using the card to obtain goods and services. The indictment charged that respondent had obtained goods and services at four specified motels by presenting Meredith's Bank-Americard for payment and representing himself to be Meredith, and that respondent knew that each merchant would cause the sales slips of the purchases to be delivered by mail to the Louisville bank which would in turn mail them to Meredith for payment. The indictment also charged that the delay in this mailing would enable the respondent to continue purchasing goods and services for an appreciable period of time.

Respondent was tried by a jury in the United States District Court for the Western District of Kentucky. At trial, representatives of the four motels identified the sales invoices from the transactions on Meredith’s Bank-Americard which were forwarded to the Louisville bank by their motels. An official of the Louisville bank testified that all of the sales invoices for those transactions were received by the bank in due course through the mail, and that this was the customary method by which invoices representing BankAmerieard purchases were transmitted to the Louisville bank. The jury found respondent guilty as charged on all counts, and he appealed the judgment of conviction to the Court of Appeals for the Sixth Circuit. That court reversed the judgment as to the mail fraud statute, but affirmed it as to the Dyer Act. 468 F. 2d 529 (1972). Because of an apparent conflict among the courts of appeals as to the circumstances under which the fraudulent use of a credit card may violate the mail fraud statute, we granted the Government’s petition for certiorari. 411 U. S. 963 (1973). For the reasons stated below, we affirm the judgment of the Court of Appeals.

The applicable parts of the mail fraud statute provide as follows:

“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting so to do . . . knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any [matter or thing whatever to be sent or delivered by the Postal Service] shall be fined not more than $1,000 or imprisoned not more than five years, or both.” 18 U. S. C. § 1341.

In Pereira v. United States, 347 U. S. 1, 8-9 (1954), the Court held that one “causes” the mails to be used where he “does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended . . . .” We assume, as did the Court of Appeals, that the evidence would support a finding by the jury that Maze “caused” the mailings of the invoices he signed from the out-of-state motels to the Louisville bank. But the more difficult question is whether these mailings were sufficiently closely related to respondent’s scheme to bring his conduct within the statute.

Under the statute, the mailing must be “for the purpose of executing the scheme, as the statute requires,” Kann v. United States, 323 U. S. 88, 94 (1944), but “[i]t is not necessary that the scheme contemplate the use of the mails as an essential element,” Pereira v. United States, supra, at 8. The Government relies on Pereira, supra, and United States v. Sampson, 371 U. S. 75 (1962), to support its position, while respondent relies on Kann v. United States, supra, and Parr v. United States, 363 U. S. 370 (1960).

In Kann, supra, corporate officers and directors were accused of having set up a dummy corporation through which to divert profits of their own corporation to their own use. As a part of the scheme, the defendants were accused of having fraudulently obtained checks payable to them which were cashed or deposited at a bank and then mailed for collection to the drawee bank. This Court held that the fraud was completed at the point at which defendants cashed the checks:

“The scheme in each case had reached fruition. The persons intended to receive the money had received it irrevocably. It was immaterial to them, or to any consummation of the scheme, how the bank which paid or credited the check would collect from the drawee bank. It cannot be said that the mailings in question were for the purpose of executing the scheme, as the statute requires.” 323 U. S., at 94.

In Parr, supra, the defendants were charged, inter .alia, with having obtained gasoline and other products and services for their own purposes by the unauthorized use of a gasoline credit card issued to the school district which employed them. The oil company which furnished products and services to the defendants would mail invoices to the school district for payment, and the school district's payment was made by check sent in the mail. Relying on Kann, the Court again found that there was not a sufficient connection between the mailing and the execution of the defendants’ scheme, because it was immaterial to the defendants how the oil company went about collecting its payment.

The defendant in Pereira, supra, was charged with having defrauded a wealthy widow of her property after marrying her. The Court describes the conduct of defendant in these words:

“Pereira asked his then wife if she would join him in the hotel venture and advance $35,000 toward the purchase price of $78,000. She agreed. It was then agreed, between her and Pereira, that she would sell some securities that she possessed in Los An-geles, and bank the money in a bank of his choosing in El Paso. On June 15, she received the check for $35,000 on the Citizens National Bank of Los An-geles from her brokers in Los Angeles, and gave it to Pereira, who endorsed it for collection to the State National Bank of El Paso. The check cleared, and on June 18, a cashier’s check for $35,000 was drawn in favor of Pereira.” 347 U. S., at 5.

Thus the mailings in Pereira played a significant part in enabling the defendant in that case to acquire dominion over the $35,000, with which he ultimately absconded. Unlike the mailings in Pereira, the mailings here were directed to the end of adjusting accounts between the motel proprietor, the Louisville bank, and Meredith, all of whom had to a greater or lesser degree been the victims of respondent's scheme. Respondent’s scheme reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss. Indeed, from his point of view, he probably would have preferred to have the invoices misplaced by the various motel personnel and never mailed at all.

The Government, however, relying on United States v. Sampson, supra, argues that essential to the success of any fraudulent credit-card scheme is the “delay” caused by use of the mails “which aids the perpetrator . . . in the continuation of a fraudulent credit card scheme and the postponement of its detection.” In Sampson, various employees of a nationwide corporation were charged with a scheme to defraud businessmen by obtaining advance fees on the promise that the defendants would either help the businessmen to obtain loans or to sell their businesses. Even after the checks representing the fees had been deposited to the accounts of the defendants, however, the plan called for the mailing of the accepted application together with a form letter assuring the victims that the services for which they had contracted would be performed. The Court found that Kann and Parr did not preclude the application of the mail fraud statute to “a deliberate, planned use of the mails after the victims' money had been obtained.” 371 U. S., at 80.

We do not believe that Sampson sustains the Government’s position. The subsequent mailings there were designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place. But the successful completion of the mailings from the motel owners here to the Louisville bank increased the probability that respondent would be detected and apprehended. There was undoubtedly delay in transmitting invoices to the Louisville bank, as there is in the physical transmission of any business correspondence between cities separated by large distances. Mail service as a means of transmitting such correspondence from one city to another is designed to overcome the effect of the distance which separates the places. But it is the distance, and not the mail service, which causes the time lag in the physical transmission of such correspondence.

Congress has only recently passed an amendment to the Truth in Lending Act which makes criminal the use of a fraudulently obtained credit card in a “transaction affecting interstate or foreign commerce.” 84 Stat. 1127, 15 U. S. C. § 1644. Congress could have drafted the mail fraud statute so as to require only that the mails be in fact used as a result of the fraudulent scheme. But it did not do this; instead, it required that the use of the mails be “for the purpose of executing such scheme or artifice ...” Since the mailings in this case were not for that purpose, the judgment of the Court of Appeals is

Affirmed.

Mr. Chief Justice Burger,

with whom Mr. Justice White joins, dissenting.

I join in the dissent of Mr. Justice White which follows but add a few observations on an aspect of the Court’s holding which seems of some importance. Section 1341 of Title 18 U. S. C. has traditionally been used against fraudulent activity as a first line of defense. When a “new” fraud develops — as constantly happens— the mail fraud statute becomes a stopgap device to deal on a temporary basis with the new phenomenon, until particularized legislation can be developed and passed to deal directly with the evil. “Prior to the passage of the 1933 [Securities] Act, most criminal prosecutions for fraudulent securities transactions were brought under the Federal Mail Fraud Statute.” Mathews, Criminal Prosecutions Under the Federal Securities Laws and Related Statutes: The Nature and Development of SEC Criminal Cases, 39 Geo. Wash. L. Rev. 901, 911 (1971). Loan sharks were brought to justice by means of 18 U. S. C. § 1341, Lynch, Prosecuting Loan Sharks Under the Mail Fraud Statute, 14 Ford. L. Rev. 150 (1945), before Congress, in 1968, recognized the interstate character of loansharking and the need to provide federal protection against this organized crime activity, and enacted 18 U. S. C. § 891 et seq.¡ outlawing extortionate extensions of credit. Although inadequate to protect the buying and investing public fully, the mail fraud statute stood in the breach against frauds connected with the burgeoning sale of undeveloped real estate, until Congress could examine the problems of the land sales industry and pass into law the Interstate Land Sales Full Disclosure Act, 82 Stat. 590, 15 U. S. C. § 1701 et seq. Coffey & Welch, Federal Regulation of Land Sales: Full Disclosure Comes Down to Earth, 21 Case W. Res. L. Rev. 5 (1969). Similarly, the mail fraud statute was used to stop credit card fraud, before Congress moved to provide particular protection by passing 15 U. S. C. § 1644.

The mail fraud statute continues to remain an important tool in prosecuting frauds in those areas where legislation has been passed more directly addressing the fraudulent conduct. Mail fraud counts fill pages of securities fraud indictments even today. Mathews, supra, 39 Geo. Wash. L. Rev., at 911. Despite the pervasive Government regulation of the drug industry, postal fraud statutes still play an important role in controlling the solicitation of mail-order purchases by drug distributors based upon fraudulent misrepresentations. Hart, The Postal Fraud Statutes: Their Use and Abuse, 11 Food Drug Cosm. L. J. 245, 247, 261 (1956). Maze’s interstate escapade — of which there are numberless counterparts — demonstrates that the federal mail fraud statute should have a place in dealing with fraudulent credit card use even with 15 U. S. C. § 1644 on the books.

The criminal mail fraud statute must remain strong to be able to cope with the new varieties of fraud that the ever-inventive American “con artist” is sure to develop. Abuses in franchising and the growing scandals from pyramid sales schemes are but some of the threats to the financial security of our citizenry that the Federal Government must be ever alert to combat. Comment, Multi-Level or Pyramid Sales Systems: Fraud or Free Enterprise, 18 S. D. L. Rev. 358 (1973).

The decision of the Court in this case should be viewed as limited to the narrow facts of Maze’s criminal adventures on which the Court places so heavy a reliance, and to the Court’s seeming desire not to flood the federal courts with a multitude of prosecutions for relatively minor acts of credit card misrepresentation considered as more appropriately the business of the States. The Court of Appeals, whose judgment is today affirmed, was careful to state that “[w]e do not hold that the fraudulent use of a credit card can never constitute a violation of the mail fraud statute.” 468 F. 2d 529, 536 (1972). The Court’s decision, then, correct or erroneous, does not mean that the United States ought, in any way, to slacken its prosecutorial efforts under 18 U. S. C. § 1341 against those who would use the mails in schemes to defraud the guileless members of the public with worthless securities, patent medicines, deeds to arid and inaccessible tracts of land, or other empty promises of instant wealth and happiness. I agree with Mr. Justice White that the judgment of the Court of Appeals was error and should be reversed.

Mr. Justice White,

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

Until today the acts charged in the indictment in this case — knowingly causing four separate sales invoices to be mailed by merchants to the bank that had issued the stolen BankAmericard in furtherance of a scheme to defraud the bank by using the credit card without authorization and by falsely securing credit — -would have been a criminal offense punishable as mail fraud under 18 U. S. C. § 1341. But no more. By misreading this Court's prior decisions and giving an unambiguous federal criminal statute an unrealistic reading, the majority places beyond the reach of the statute a fraudulent scheme that by law is not consummated until after the mails have been used, that utilizes the mails as a central, necessary instrumentality in its perpetration, and that demands federal investigatory and prosecutorial resources if it is to be effectively checked. Because I cannot subscribe to the majority’s reasoning or the result it reaches, I dissent.

As “part of his scheme and artifice to defraud,” respondent was charged with “obtain[ing] property and services on credit through the use of” an unlawfully possessed BankAmericard and “by means of false and fraudulent pretenses, representations and promises . . . .” App. 5, 6. The property and services were obtained from Citizens Fidelity Bank and Trust Company of Louisville, Kentucky, a BankAmericard licensee, Charles Meredith, the authorized card holder and user, and various persons and business concerns “which had previously entered into agreements with BankAmericard to furnish property and services on credit to the holders of Bank-Amerieards . . . .” Id., at 6. The indictment also charged that the mails played an indispensable role in respondent’s fraudulent activities:

“It was a further part of his scheme and artifice to defraud that the defendant would and did obtain property and services on credit through the use of [the] BankAmericard ... by charging purchases on credit, well knowing at the time that the bank copies of the sales invoices recording these purchases would be, and were, delivered by mail to Citizens Fidelity Bank and Trust Company, Louisville, Kentucky, according to the directions thereon for posting to the BankAmericard account of Charles L. Meredith, that copies of these sales invoices, together with a bill for the accumulated charges, would subsequently be mailed- in the normal course of business to Charles L. Meredith; and that the delay inherent in this posting and mailing would enable the defendant to continue to make purchases with [the] BankAmericard . . . before his scheme and artifice to defraud could be detected.” Id., at 6-7.

I

Section 1341 proscribes use of the mails “for the purpose of executing” a fraudulent scheme. The trial court had instructed the jury that it could convict on the four mail fraud counts only if it found, inter alia, that “the mails were in fact used to carry out the scheme and that the use of the mails was reasonably foreseeable. The mail matter need not disclose on its face a fraudulent representation or purpose, but need only be intended to assist in carrying out the scheme to defraud.” App. 37 (emphasis added). Viewing each fraudulent transaction as consummated at the time respondent received goods in exchange for signing the BankAmericard sales drafts, the Court of Appeals held that respondent did not cause the subsequent mailings “for the purpose of executing his fraudulent scheme.” 468 F. 2d 529, 535 (emphasis in original). The court below acknowledged that “the fraud was directed against the card issuer and the card holder,” but it nevertheless concluded that the relevant perspective was respondent’s. “As far as [respondent] was concerned, his transaction was complete when he checked out of each motel; the subsequent billing was merely ‘incidental and collateral to the scheme and not a part of it.’ ” Id., at 534, quoting Kann v. United States, 323 U. S. 88, 95 (1944).

The majority has uncritically embraced this unnecessarily restrictive approach to construing the statute. Like the Court of Appeals, it has selectively seized upon language in our prior decisions in pursuit of its notion that the fraudulent scheme ended when respondent duped the motels into giving him goods and services on credit. We are told, for example, as in Kann, supra, where the mails were used to deliver checks drawn from a dummy corporation as part of a scheme by corporate officers to defraud their own corporation, that the scheme here “had reached fruition,” that the person “intended to receive the [goods and services] had received it irrevocably,” that it was “immaterial ... to any consummation of the scheme” how the sales invoices were forwarded by the motels to the issuing bank for payment and billing to the card holder, and that the so-called billing process was, as previously noted, “incidental and collateral to the scheme and not a part of it.” 323 U. S., at 94, 95. “Therefore, only if the mailings were 'a part of the execution of the fraud/ or, as we said in Pereira v. United States, 347 U. S. 1, 8, were incident to an essential part of the scheme/ do they fall within the ban of the federal mail fraud statute.” Parr v. United States, 363 U. S. 370, 390 (1960).

What the majority overlooks is the salient fact that the fraud in this case — and most others involving unauthorized use of credit cards — was practiced on the card issuer and not on the individual merchants who furnished lodgings and meals to respondent. As the Court of Appeals itself recognized, “[t]he merchants who honored the BankAmericard were likely insulated from loss under their agreements with BankAmericard. See Brandel & Leonard, Bank Charge Cards: New Cash or New Credit, 69 Mich. L. Rev. 1033, 1040 (1971).” 468 F. 2d, at 534 n. 3. Here, then, the fraud was ultimately perpetrated upon the credit card issuer and not the merchant. The mails thus became “part of the execution of the fraud . . . Kann v. United States, supra, at 95. Indeed, they were "an essential element” and not merely “incident to an essential part of the scheme . . . Pereira v. United States, 347 U. S. 1, 8 (1954).

Nor had respondent’s plan reached fruition. For his part, he may very well not have schemed beyond obtaining the goods and services under false pretenses with a stolen credit card. But from a legal standpoint of criminal fraud, this was only the first and certainly

“not the last step in the fraudulent scheme. It was a continuing venture. . . . The use of the mails was crucial to the total success of the fraudulent project. We are not justified, in chopping up ... the scheme into segments and isolating one part from the others. That would be warranted if the scheme were to defraud [only the merchants]. But it is plain that these plans had a wider reach and that but for the use of the mails they would not have been finally consummated.” Kann v. United States, supra, at 96 (Douglas, J., dissenting).

Since it was the card-issuing bank that was actually defrauded, the mails were employed “for the purpose of executing [the] scheme . . . .”

II

The mails further contributed to the realization of respondent's fraudulent scheme by creating the delay in detecting the fraud that necessarily results from the time-consuming processing of credit card invoices by mail. See United States v. Chason, 451 F. 2d 301, 303-304 (CA2), cert. denied, 405 U. S. 1016 (1971). During his two-week, $2,000 transcontinental spending spree, respondent took full advantage of this inevitable delay to continue his unlawful activities. If the motel owners had employed an instantaneous identification or verification system, respondent's fraudulent scheme would most likely have been nipped in the bud. But the simple truth of the matter is that they did not. As a direct consequence of the prevailing business practice of mailing invoices to the issuer for subsequent billing to the card holder and the system’s attendant time delays, respondent was able to buy valuable time to postpone detection and thereby execute his scheme.

The majority mysteriously ignores prior decisions that 18 U. S. C. § 1341 reaches “cases where the use of the mails is a means of concealment so that further frauds which are part of the scheme may be perpetrated.” Kann v. United States, supra, at 94—95. See United States v. Hendrickson, 394 F. 2d 807 (CA6 1968), cert. denied, 393 U. S. 1031 (1969); United States v. Riedel, 126 F. 2d 81, 83 (CA7 1942); United States v. Lowe, 115 F. 2d 596, 599 (CA7), cert. denied, 311 U. S. 717 (1940). Moreover, it fails to take appropriate account of our most recent decision construing § 1341. In United States v. Sampson, 371 U. S. 75 (1962), an indictment for mail fraud had been dismissed by the District Court on the ground that the mailings after the money had already been obtained from the victims were not “for the purpose of executing” the scheme to defraud. We reversed.

“We are unable to find anything in either the Kann or the Parr case which suggests that the Court was laying down an automatic rule that a deliberate, planned use of the mails after the victims’ money had been obtained can never be ‘for the purpose of executing’ the defendants’ scheme. Rather the Court found only that under the facts in those cases the schemes had been fully executed before the mails were used. And Court of Appeals decisions rendered both before and after Kann have followed the view that subsequent mailings can in some circumstances provide the basis for an indictment under the mail fraud statutes.” Id., at 80 (footnote omitted).

As previously indicated, the indictment here charged that respondent knew that the delay inherent in the posting and mailing of the credit card invoices would enable him to continue making purchases with the purloined card before his criminal conduct could be detected. Respondent engaged in a criminal enterprise that is by its very nature short-lived. Every time delay in the card holder’s receipt of the forged credit card slips allows the scheme to continue that much longer. For my part, the indictment charged a crime under 18 U. S. C. § 1341, and the Government established respondent’s guilt beyond a reasonable doubt.

Ill

The majority’s decision has ramifications far beyond the mere reversal of a lone criminal conviction. In this era of the “cashless” society, Americans are increasingly resorting to the use of credit cards in their day-to-day. consumer purchases. Today well over 300 million credit cards are in circulation, and annual charges exceed $60 billion. In 1969 alone, 1.5 million credit cards were lost or stolen, resulting in fraud losses exceeding $100 million. 115 Cong. Rec. 38987 (1969). Current estimates of annual credit card fraud losses are put as high as $200 million. Cleveland, Bank Credit Cards: Issuers, Merchants, and Users, 90 Banking L. J. 719, 729 (1973). Under the result reached by the majority, only those credit card frauds exceeding $5,000 covered by 15 U. S. C. § 1644 will be subject to federal criminal jurisdiction.

Yet this burgeoning criminal activity, as evidenced by the very facts of this case, does not recognize artificial state boundaries. In the future, nationwide credit card fraud schemes will have to be prosecuted in each individual State in which a fraudulent transaction transpired. Here, for example, respondent must now be charged and tried in California, Louisiana, and Florida. This result, never intended by Congress, may precipitate a widespread inability to apprehend and/or prosecute those who would hijack the credit card system.

I dissent.

       The Court of Appeals determined that even though it affirmed respondent’s Dyer Act conviction, for which he had received a concurrent five-year sentence, it should also consider the mail fraud convictions as well. There is no jurisdictional barrier to such a decision, Benton v. Maryland, 395 U. S. 784 (1969), and the court decided that “no considerations of judicial economy or efficiency have been urged to us that would outweigh the interest of appellant in the opportunity to clear his record of a conviction of a federal felony.” 468 F. 2d, at 536 n. 6. We agree that resolution of the mail fraud questions presented by this case is appropriate.

       The decision of the Court of Appeals for the Tenth Circuit in United States v. Lynn, 461 F. 2d 759 (1972), appears consistent with the decision of the Sixth Circuit in the instant case. Five other courts of appeals apparently take a contrary view. E. g., United States v. Kellerman, 431 F. 2d 319 (CA2), cert. denied, 400 U. S. 957 (1970); United States v. Chason, 451 F. 2d 301 (CA2 1971), cert. denied, 405 U. S. 1016 (1972); United States v. Madison, 458 F. 2d 974 (CA2), cert. denied, 409 U. S. 859 (1972); United States v. Ciotti, 469 F. 2d 1204 (CA3 1972), cert. pending, No. 72-6155; Adams v. United States, 312 F. 2d 137 (CA5 1963); Kloian v. United States, 349 F. 2d 291 (CA5 1965), cert. denied, 384 U. S. 913 (1966); United States v. Reynolds, 421 F. 2d 178 (CA5 1970); United States v. Thomas, 429 F. 2d 407 (CA5 1970); United States v. Kelly, 467 F. 2d 262 (CA7 1972), cert. denied, 411 U. S. 933 (1973); United States v. Kelem, 416 F. 2d 346 (CA9 1969), cert. denied, 397 U. S. 952 (1970).

       The full text of the section reads as follows:
      “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” 18 U. S. C. § 1341.

       The Government indicates that in 1969 it was estimated that more than 300 million consumer credit cards were in circulation, with annual charges between $40 billion and $60 billion. It was also estimated that, in 1969, 1.5 million cards were lost or stolen, and that losses due to fraud had risen from $20 million in 1966 to $100 million in 1969. Brief for United States 14 n. 2, citing 115 Cong. Rec. 38987 (1969). The mail fraud statute, first enacted in 1872, c. 335, § 301, 17 Stat. 323, while obviously not directed at credit card frauds as such, is sufficiently general in its language to include them if the requirements of the statute are otherwise met.

       While it is clearly implied in this Court’s opinion in Pereira that the El Paso bank did not immediately credit the account of the defendant, but instead awaited advice from the Los Angeles bank to which it had mailed the check, the opinion of the Court of Appeals for the Fifth Circuit in Pereira makes that fact abundantly clear:
      “The return of [the] check from Texas to California constitutes the mailing referred to in the First Count .... In mailing the check back to the bank in California on which it was drawn, the El Paso, Texas, bank sent 'instructions to wire fate,’ meaning to wire whether the item was paid or not. Upon receiving a telegram stating that the cheek had been paid, the bank in El Paso gave Pereira its cashier’s check for $35,286.01, which Pereira promptly cashed on June 19, 1951.” Pereira v. United States, 202 F. 2d 830, 836 (1953).

       Mr. Justice White’s dissenting opinion indicates that respondent engaged in a “two-week, $2,000 transcontinental spending spree.” While we are not sure of the legal significance of the amounts fraudulently charged on the credit card by the respondent, we note that the four counts of mail fraud charged in the indictment were based on charges on Meredith’s credit card totaling $301.85. Brief for Respondent 4 n. 2; Brief for United States 4-5.

       Since we are admonished that we may not as judges ignore what we know as men, we do not wish to be understood as suggesting that delays in mail service are solely attributable to the distance involved. If the Postal Service appears on occasion to be something less than a 20th century version of the wing-footed Mercury, the fact remains that the invoices were mailed to and were ultimately received by the Louisville bank.

       Distance is not the only cause of delay. The Court of Appeals noted that BankAmericard had a billing system in which billing was aceomplished by collecting receipts over a one-month period and then billing the card holder. 468 F. 2d, at 535. It might reasonably be argued that respondent himself used facilities of interstate travel for the purpose of executing his scheme, since the large distances separating the defrauded motels from one another and from .the Louisville bank probably did make it more difficult to apprehend him than if he had simply defrauded local enterprises in Louisville. But the statute is cast, not in terms of use of the facilities of interstate travel, but in terms of use of the mails.

       Volume 84 Stat. 1127, 15 U. S. C. § 1644 provides:
      “Whoever, in a transaction affecting interstate or foreign commerce, uses any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card to obtain goods or services, or both, having a. retail value aggregating $5,000 or more, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
      The Court of Appeals felt that the enactment by Congress of the above amendment to the Truth in Lending Act manifested a legislative judgment that credit card fraud schemes- were to be excluded from the application of the mail fraud statute “unless the offender makes a purposeful use of the mails to accomplish his scheme.” 468 F. 2d, at 536.
      Respondent contends that the passage of the amendment indicates that Congress believed in 1970 that credit card fraud was not a federal crime under 18 U. S. C. § 1341 or otherwise. Respondent also notes that the legislative history of the passage of the amendment indicates that the original bill, as enacted by the Senate, contained no jurisdictional amount limitation. The Senate-House conferees, at the request of the Department of Justice, later added the limitation of federal jurisdiction under the section to purchases exceeding $5,000. Brief for Respondent 16-21.
      The Government contends that the Court of Appeals erred in attaching significance to the 1970 amendment, urging that there is no indication that Congress intended its provisions to be the sole vehicle for the federal prosecution of credit card frauds. Brief for United States 33-37, citing United States v. Beacon Brass Co., 344 U. S. 43, 45 (1952).
      We deem it unnecessary to determine the significance of the passage of the amendment, since we conclude without resort to that fact that the mail fraud statute does not cover the respondent’s conduct in this ease.

       We are admonished by The Chibe Justice in dissent that the “mail fraud statute must remain strong to be able to cope with the new varieties of fraud” which threaten “the financial security of our citizenry” and which “the Federal Government must be ever alert to combat.” We believe that under our decision the mail fraud statute remains a strong and useful weapon to combat those evils which are within the broad reach of its language. If the Federal Government is to engage in combat against fraudulent schemes not covered by the statute, it must do so at the initiative of Congress and not of this Court.

       See, e. g., United States v. Kelly, 467 F. 2d 262 (CA7 1972), cert. denied, 411 U. S. 933 (1973); United States v. Madison, 458 F. 2d 974 (CA2), cert. denied, 409 U. S. 859 (1972); United States v. Chason, 451 F. 2d 301 (CA2 1971), cert. denied, 405 U. S. 1016 (1972); United States v. Kellerman, 431 F. 2d 319 (CA2), cert. denied, 400 U. S. 957 (1970); United States v. Thomas, 429 F. 2d 407 (CA5 1970); United States v. Kelem, 416 F. 2d 346 (CA9 1969), cert. denied, 397 U. S. 952 (1970); Adams v. United States, 312 F. 2d 137 (CA5 1963).
      The majority recognizes that prior to this decision at least five courts of appeals had taken a view contrary to that reached by the court below. Ante, at 398 n. 2. The Court of Appeals in this case relied upon United States v. Lynn, 461 F. 2d 759 (CA10 1972), but the indictment in that case did not allege that the plan defrauded the authorized card holder or the credit card issuer.

       Almost all of the bant credit card systems presently in operation in this country rely upon a three-way transaction between the card issuer, the cardholder, and a subscribing retailer. This tripartite credit card arrangement basically entails three separate contractual agreements: (1) between the bank issuing the credit card and the individual cardholder; (2) between one of the banks in the system and a local merchant; and (3) between the merchant and the cardholder. See generally Comment, The Tripartite Credit Card Transaction: A Legal Infant, 48 Calif. L. Rev. 459 (1960).
      “The most important of the many parties to such a system is the bank which issues the charge cards to the public. The issuer-bank establishes an account on behalf of the person to whom the card is issued, and the two enter into an agreement which governs their relationship. This agreement establishes a line of credit under which the cardholder may incur obligations to the issuer by a cash advance or through a purchase of goods or services from one of the merchant-members.
      “These merchants also have an agreement with the banks requiring them to honor all charge cards issued by a member-bank, and enabling them to deposit slips evidencing sales to cardholders in an ordinary checking account at the bank with which he has reached an agreement in return for a discounted credit to that account. These slips are then cleared and forwarded through an interchange system to the member-bank which originally issued the card and from which the cardholder will be billed periodically. The cardholder must then decide whether to make payment in full within a specified period, free of finance charges, or to defer payment and ultimately be charged an extra percentage of the amount billed.” Comment, Bank Credit Cards — Contemporary Problems, 41 Fordham L. Rev. 373, 374 (1972) (footnote omitted).
      Because the legal relationship between the parties is dictated by the terms of their respective agreements, the contract governs the distribution of risk for credit card frauds between the merchant and. the issuer. Under most systems, with certain exceptions for negligence on the part of the merchant if he honors an expired card or one appearing on the current “stop list” or if he makes a sale for an amount in excess of the cardholder’s credit line, the issuer assumes all risks for frauds. Murray, A Legal-Empirical Study of the Unauthorized Use of Credit Cards, 21 U. Miami L. Rev. 811, 813 (1967); Note, Credit Cards: Distributing Fraud Loss, 77 Yale L. J. 1418, 1420 (1968); Comment, The Tripartite Credit Card Transaction, 48 Calif. L. Rev., at 464-465.
      ‘‘ ‘As far as the merchant is concerned, he is in the same financial and legal position as if he were receiving certified checks on a bank that does not clear at par, with no risk that the check will be returned or payment stopped, or as if he were receiving cash at a small discount for the bank’s services. This firm bank commitment is what makes the merchant willing to accept a bank card as freely as cash and what makes the bank card as good as cash to its holder (and without the risks of carrying cash).
      “ ‘Under these arrangements, the card-issuing bank takes all the credit risk, which is appropriate to the banking function it performs, the cardholder selects the merchant with whom he will deal, and the bank and the cardholder-purchaser expect the merchant to assume the merchandise risk. It is this division and allocation of risks between merchant and bank which permits the bank card to be used as though it were cash with hundreds of thousands of participating merchants throughout the country and abroad.’ ” Cleveland, Bank Credit Cards: Issuers, Merchants, and Users, 90 Banking L. J. 719, 723-724 (1973), quoting Statement of the American Bankers Association, the Consumers Bankers Association, Interbank Card Association, and National BankAmericard, Inc. to the Federal Trade Commission in the matter of Revised Proposed Trade Regulation Rule on Preservation of Consumers’ Claims and Defenses, 4-5 (Mar. 5, 1973).

       Section 133 (a) of the Truth in Lending Act limited the cardholder’s liability for the unauthorized use of his credit card to $50. 84 Stat. 1126, 15 U. S. C. § 1643 (a).