source: Caselaw Access Project

author: Mr. Justice Brennan Mr. Chief Justice Burger, Mr. Justice Powell,

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD v. J. WEINGARTEN, INC.
    No. 73-1363.
    Argued November 18, 1974
    Decided February 19, 1975

      Patrick Hardin argued the cause for petitioner. With him on the brief were Solicitor General Bork, Peter G. Nash, John S. Irving, Norton J. Come, and Linda Sher.

      Neil Martin argued the cause and filed a brief for respondent.

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

   Mr. Justice Brennan

delivered the opinion of the Court.

The National Labor Relations Board held in this case that respondent employer's denial of an employee's request that her union representative be present at an investigatory interview which the employee reasonably believed might result in disciplinary action constituted an unfair labor practice in violation of § 8 (a) (1) of the National Labor Relations Act, as amended, 61 Stat. 140, because it interfered with, restrained, and coerced the individual right of the employee, protected by § 7 of the Act, “to engage in . . . concerted activities for . . . mutual aid or protection . 202 N. L. R. B. 446 (1973). The Court of Appeals for the Fifth Circuit held that this was an impermissible construction of § 7 and refused to enforce the Board’s order that directed respondent to cease and desist from requiring any employee to take part in an investigatory interview without union representation if the employee requests representation and reasonably fears disciplinary action. 485 F. 2d 1135 (1973). We granted certiorari and set the case for oral argument with No. 73-765, Garment Workers v. Quality Mfg. Co., post, p. 276. 416 U. S. 969 (1974). We reverse.

I

Respondent operates a chain of some 100 retail stores with lunch counters at some, and so-called lobby food operations at others, dispensing food to take out or eat on the premises. Respondent's sales personnel are represented for collective-bargaining purposes by Retail Clerks Union, Local 455. Leura Collins, one of the sales personnel, worked at the lunch counter at Store No. 2 from 1961 to 1970 when she was transferred to the lobby operation at Store No. 98. Respondent maintains a com-panywide security department staffed by “Loss Prevention Specialists” who work undercover in all stores to guard against loss from shoplifting and employee dishonesty. In June 1972, “Specialist” Hardy, without the knowledge of the store manager, spent two days observing the lobby operation at Store No. 98 investigating a report that Collins was taking money from a cash register. When Hardy’s surveillance of Collins at work turned up no evidence to support the report, Hardy disclosed his presence to the store manager and reported that he could find nothing wrong. The store manager then told him that a fellow lobby employee of Collins had just reported that Collins had purchased a box of chicken that sold for $2.98, but had placed only $1 in the cash register. Collins was summoned to an interview with Specialist Hardy and the store manager, and Hardy questioned her. The Board found that several times during the questioning she asked the store manager to call the union shop steward or some other union representative to the interview, and that her requests were denied. Collins admitted that she had purchased some chicken, a loaf of bread, and some cake which she said she paid for and donated to her church for a church dinner. She explained that she purchased four pieces of chicken for which the price was $1, but that because the lobby department was out of the small-size boxes in which such purchases were usually packaged she put the chicken into the larger box normally used for packaging larger quantities. Specialist Hardy left the interview to check Collins’ explanation with the fellow employee who had reported Collins. This employee confirmed that the lobby department had run out of small boxes and also said that she did not know how many pieces of chicken Collins had put in the larger box. Specialist Hardy returned to the interview, told Collins that her explanation had checked out, that he was sorry if he had inconvenienced her, and that the matter was closed.

Collins thereupon burst into tears and blurted out that the only thing she had ever gotten from the store without paying for it was her free lunch. This revelation surprised the store manager and Hardy because, although free lunches had been provided at Store No. 2 when Collins worked at the lunch counter there, company policy was not to provide free lunches at stores operating lobby departments. In consequence, the store manager and Specialist Hardy closely interrogated Collins about violations of the policy in the lobby department at Store No. 98. Collins again asked that a shop steward be called to the interview, but the store manager denied her request. Based on her answers to his questions, Specialist Hardy prepared a written statement which included a computation that Collins owed the store approximately $160 for lunches. Collins refused to sign the statement. The Board found that Collins, as well as most, if not all, employees in the lobby department of Store No. 98, including the manager of that department, took lunch from the lobby without paying for it, apparently because no contrary policy was ever made known to them. Indeed, when company headquarters advised Specialist Hardy by telephone during the interview that headquarters itself was uncertain whether the policy against providing free lunches at lobby departments was in effect at Store No. 98, he terminated his interrogation of Collins. The store manager asked Collins not to discuss the matter with anyone because he considered it a private matter between her and the company, of no concern to others. Collins, however, reported the details of the interview fully to her shop steward and other union representatives, and this unfair labor practice proceeding resulted.

II

The Board’s construction that § 7 creates a statutory right in an employee to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline was announced in its decision and order of January 28, 1972, in Quality Mfg. Co., 195 N. L. R. B. 197, considered in Garment Workers v. Quality Mfg. Co., post, p. 276. In its opinions in that case and in Mobil Oil Corp., 196 N. L. R. B. 1052, decided May 12, 1972, three months later, the Board shaped the contours and limits of the statutory right.

First, the right inheres in § 7’s guarantee of the right of employees to act in concert for mutual aid and protection. In Mobil Oil, the Board stated:

“An employee’s right to union representation upon request is based on Section 7 of the Act which guarantees the right of employees to act in concert for 'mutual aid and protection.’ The denial of this right has a reasonable tendency to interfere with, restrain, and coerce employees in violation of Section 8 (a)(1) of the Act. Thus, it is a serious violation of the employee’s individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee’s request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy. Such a dilution of the employee’s right to act collectively to protect his job interests is, in our view, unwarranted interference with his right to insist on concerted protection, rather than individual self-protection, against possible adverse employer action.” Ibid.

Second, the right arises only in situations where the employee requests representation. In other words, the employee may forgo his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative.

Third, the employee’s right to request representation as a condition of participation in an interview is limited to situations where the employee reasonably believes the investigation will result in disciplinary action. Thus the Board stated in Quality:

"We would not apply the rule to such run-of-the-mill shop-floor conversations as, for example, the giving of instructions or training or needed corrections of work techniques. In such cases there cannot normally be any reasonable basis for an employee to fear that any adverse impact may result from the interview, and thus we would then see no reasonable basis for him to seek the assistance of his representative.” 195 N. L. R. B., at 199.

Fourth, exercise of the right may not interfere with legitimate employer prerogatives. The employer has no obligation to justify his refusal to allow union representation, and despite refusal, the employer is free to carry on his inquiry without interviewing the employee, and thus leave to the employee the choice between having an interview unaccompanied by his representative, or having no interview and forgoing any benefits that might be derived from one. As stated in Mobil Oil:

“The employer may, if it wishes, advise the employee that it will not proceed with the interview unless the employee is willing to enter the interview unaccompanied by his representative. The employee may then refrain from participating in the interview, thereby protecting his right to representation, but at the same time relinquishing any benefit which might be derived from the interview. The employer would then be free to act on the basis of information obtained from other sources.” 196 N. L. R. B., at 1062.

The Board explained in Quality:

“This seems to us to be the only course consistent with all of the provisions of our Act. It permits the employer to reject a collective .course in situations such as investigative interviews where a collective course is not required but protects the employee’s right to protection by his chosen agents. Participation in the interview is then voluntary, and, if the employee has reasonable ground to fear that the interview will adversely affect his continued employment, or even his working conditions, he may choose to forego it unless he is afforded the safeguard of his representative’s presence. He would then also forego whatever benefit might come from the interview. And, in that event, the employer would, of course, be free to act on the basis of whatever information he had and without such additional facts as might have been gleaned through the interview.” 195 N. L. R. B., at 198-199.

Fifth, the employer has no duty to bargain with any union representative who may be permitted to attend the investigatory interview. The Board said in Mobil, “we are not giving the Union any particular rights with respect to predisciplinary discussions which it otherwise was not able to secure during collective-bargaining negotiations.” 196 N. L. R. B., at 1052 n. 3. The Board thus adhered to its decisions distinguishing between disciplinary and investigatory interviews, imposing a mandatory affirmative obligation to meet with the union representative only in the case of the disciplinary interview. Texaco, Inc., Houston Producing Division, 168 N. L. R. B. 361 (1967); Chevron Oil Co., 168 N. L. R. B. 574 (1967); Jacobe-Pearson Ford, Inc., 172 N. L. R. B. 594 (1968). The employer has no duty to bargain with the union representative at an investigatory interview. “The representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of them. The employer, however, is free to insist that he is only interested, at that time, in hearing the employee’s own account of the matter under investigation.” Brief for Petitioner 22.

Ill

The Board’s holding is a permissible construction of “concerted activities for . . . mutual aid or protection” by the agency charged by Congress with enforcement of the Act, and should have been sustained.

The action of an employee in seeking to have the assistance of his union representative at a confrontation with his employer clearly falls within the literal wording of § 7 that “[ejmployees shall have the right ... to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” Mobil Oil Corp. v. NLRB, 482 P. 2d 842, 847 (CA7 1973). This is true even though the employee alone may have an immediate stake in the outcome; he seeks “aid or protection” against a perceived threat to his employment security. The union representative whose participation he seeks is, however, safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. The representative’s presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview. Concerted activity for mutual aid or protection is therefore as present here as it was held to be in NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F. 2d 503, 505-506 (CA2 1942), cited with approval by this Court in Houston Contractors Assn. v. NLRB, 386 U. S. 664, 668-669 (1967):

“ 'When all the other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a "concerted activity” for “mutual aid or protection,” although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping; and the solidarity so established is “mutual aid” in the most literal sense, as nobody doubts.’ ”

The Board’s construction plainly effectuates the most fundamental purposes of the Act. In § 1, 29 U. S. C. § 151, the Act declares that it is a goal of national labor policy to protect “the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of . . . mutual aid or protection.” To that end the Act is designed to eliminate the “inequality of bargaining power between employees . . . and employers.” Ibid. Requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the Act was designed to eliminate, and bars recourse to the safeguards the Act provided “to redress the perceived imbalance of economic power between labor and management.” American Ship Building Co. v. NLRB, 380 U. S. 300, 316 (1965). Viewed in this light, the Board’s recognition that § 7 guarantees an employee’s right to the presence of a union representative at an investigatory interview in which the risk of discipline reasonably inheres is within the protective ambit of the section “ ‘read in the light of the mischief to be corrected and the end to be attained.’ ” NLRB v. Hearst Publications, Inc., 322 U. S. 111, 124 (1944).

The Board’s construction also gives recognition to the right when it is most useful to both employee and employer. A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. Certainly his presence need not transform the interview into an adversary contest. Respondent suggests nonetheless that union representation at this stage is unnecessary because a decision as to employee culpability or disciplinary action can be corrected after the decision to impose discipline has become final. In other words, respondent would defer representation until the filing of a formal grievance challenging the employer’s determination of guilt after the employee has been discharged or otherwise disciplined. At that point, however, it becomes increasingly difficult for the employee to vindicate himself, and the value of representation is correspondingly diminished. The employer may then be more concerned with justifying his actions than re-examining them.

IV

The Court of Appeals rejected the Board’s construction as foreclosed by that court’s decision four years earlier in Texaco, Inc., Houston Producing Division v. NLRB, 408 F. 2d 142 (1969), and by “a long line of Board decisions, each of which indicates — either directly or indirectly — that no union representative need be present” at an investigatory interview. 485 F. 2d, at 1137.

The Board distinguishes Texaco as presenting not the question whether the refusal to allow the employee to have his union representative present constituted a violation of § 8 (a)(1) but rather the question whether § 8 (a) (5) precluded the employer from refusing to deal with the union. We need not determine whether Texaco is distinguishable. Insofar as the Court of Appeals there held that an employer does not violate § 8 (a)(1) if he denies an employee’s request for union representation at an investigatory interview, and requires him to attend the interview alone, our decision today reversing the Court of Appeals’ judgment based upon Texaco supersedes that holding.

In respect of its own precedents, the Board asserts that even though some “may be read as reaching a contrary conclusion,” they should not be treated as impairing the validity of the Board’s construction, because “[t]hese decisions do not reflect a considered analysis of the issue.” Brief for Petitioner 25. In that circumstance, and in the light of significant developments in industrial life believed by the Board to have warranted a reappraisal of the question, the Board argues that the case is one where “[t]he nature of the problem, as revealed by unfolding variant situations, inevitably involves an evolutionary process for its rational response, not a quick, definitive formula as a comprehensive answer. And so, it is not surprising that the Board has more or less felt its way . . . and has modified and reformed its standards on the basis of accumulating experience.” Electrical Workers v. NLRB, 366 U. S. 667, 674 (1961).

We agree that its earlier precedents do not impair the validity of the Board’s construction. That construction in no wise exceeds the reach of § 7, but falls well within the scope of the rights created by that section. The use by an administrative agency of the evolutional approach is particularly fitting. To hold that the Board’s earlier decisions froze the development of this important aspect of the national labor law would misconceive the nature of administrative decisionmaking. “ 'Cumulative experience’ begets understanding and insight by which judgments . . . are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process.” NLRB v. Seven-Up Co., 344 U. S. 344, 349 (1953).

The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board. The Court of Appeals impermissibly encroached upon the Board’s function in determining for itself that an employee has no “need” for union assistance at an investigatory interview. “While a basic purpose of section 7 is to allow employees to engage in concerted activities for their mutual aid and protection, such a need does not arise at an investigatory interview.” 485 F. 2d, at 1138. It is the province of the Board, not the courts, to determine whether or not the “need” exists in light of changing industrial practices and the Board’s cumulative experience in dealing with labor-management relations. For the Board has the “special function of applying the general provisions of the Act to the complexities of industrial life,” NLRB v. Erie Resistor Corp., 373 U. S. 221, 236 (1963); see Republic Aviation Corp. v. NLRB, 324 U. S. 793, 798 (1945); Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 196-197 (1941), and its special competence in this field is the justification for the deference accorded its determination. American Ship Building Co. v. NLRB, 380 U. S., at 316. Reviewing courts are of course not “to stand aside and rubber stamp” Board determinations that run contrary to the language or tenor of the Act, NLRB v. Brown, 380 U. S. 278, 291 (1965). But the Board’s construction here, while it may not be required by the Act, is at least permissible under it, and insofar as the Board’s application of that meaning engages in the "difficult and delicate responsibility” of reconciling conflicting interests of labor and management, the balance struck by the Board is “subject to limited judicial review.” NLRB v. Truck Drivers, 353 U. S. 87, 96 (1957). See also NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956); NLRB v. Brown, supra; Republic Aviation Corp. v. NLRB, supra. In sum, the Board has reached a fair and reasoned balance upon a question within its special competence, its newly arrived at construction of § 7 does not exceed the reach of that section, and the Board has adequately explicated the basis of its interpretation.

The statutory right confirmed today is in full harmony with actual industrial practice. Many important collective-bargaining agreements have provisions that accord employees rights of union representation at investigatory interviews. Even where such a right is not explicitly provided in the agreement a "well-established current of arbitral authority” sustains the right of union representation at investigatory interviews which the employee reasonably believes may result in disciplinary action against him. Chevron Chemical Co., 60 Lab. Arb. 1066, 1071 (1973).

The judgment is reversed and the case is remanded with direction to enter a judgment enforcing the Board’s order.

It is so ordered.

Mr. Chief Justice Burger,

dissenting.

Today the Court states that, in positing a new § 7 right for employees, the “Board has adequately explicated the basis of its interpretation.” Ante, at 267. I agree that the Board has the power to change its position, but since today’s cases represent a major change in policy and a departure from Board decisions spanning almost 30 years the change ought to be justified by a reasoned Board opinion. The brief but spectacular evolution of the right, once recognized, illustrates the problem. In Quality Mfg. Co., 195 N. L. R. B. 197, 198 (1972), the Board distinguished its prior cases on the ground, inter alia, that “none of those cases presented a situation where an employee or his representative had been disciplined or discharged for requesting, or insisting on, union representation in the course of an interview.” Yet, soon after-wards the Board extended the right without explanation to situations where no discipline or discharge resulted. Mobil Oil Corp., 196 N. L. R. B. 1052 (1972); J. Weingarten Inc., 202 N. L. R. B. 446 (1973).

The tortured history and inconsistency of the Board’s efforts in this difficult area suggest the need for an explanation by the Board of why the new rule was adopted. However, a much more basic policy demands that the Board explain its new construction. The integrity of the administrative process requires that “[w]hen the Board so exercises the discretion given to it by Congress, it must 'disclose the basis of its order’ and 'give clear indication that it has exercised the discretion with which Congress has empowered it.’ Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 197.” NLRB v. Metropolitan Ins. Co., 380 U. S. 438, 443 (1965). Here, there may be very good reasons for adopting the new rule, and the Court suggests some. See ante, at 260-261; 262-264; 265 n. 10. But these reasons are not to be found in the Board’s cases. In Metropolitan Ins. Co., supra, at 444, we made it clear that “ 'courts may not accept appellate counsel’s post hoc rationalizations for agency action.’ ” The Court today gives lip service to the rule that courts are not “ 'to stand aside and rubber stamp’ ” Board determinations. Ante, at 266.

I would therefore remand the cases to the Court of Appeals with directions to remand to the Board so that it may enlighten us as to the reasons for this marked change in policy rather than leave with this Court the burden of justifying the change for reasons which we arrive at by inference and surmise.

Mr. Justice Powell,

with whom Mr. Justice Stewart joins,

dissenting.

Section 7 of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U. S. C. § 157, guarantees to employees the right to “engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The Court today construes that right to include union representation or the presence of another employee at any interview the employee reasonably fears might result in disciplinary action. In my view, such an interview is not concerted activity within the intendment of the Act. An employee’s right to have a union representative or another employee present at an investigatory interview is a matter that Congress left to the free and flexible exchange of the bargaining process.

The majority opinion acknowledges that the NLRB has only recently discovered the right to union representation in employer interviews. In fact, as late as 1964— after almost 30 years of experience with § 7 — the Board flatly rejected an employee’s claim that she was entitled to union representation in a “discharge conversation” with the general manager, who later admitted that he had already decided to fire her. The Board adopted the Trial Examiner’s analysis:

“I fail to perceive anything in the Act which obliges an employer to permit the presence of a representative of the bargaining agent in every situation where an employer is compelled to admonish or to otherwise take disciplinary action against an employee, particularly in those situations where the employee’s conduct is unrelated to any legitimate union or concerted activity. An employer undoubtedly has the right to maintain day-to-day discipline in the plant or on the working premises and it seems to me that only exceptional circumstances should warrant any interference with this right.” Dobbs Houses, Inc., 145 N. L. R. B. 1565, 1571 (1964).

The convoluted course of litigation from Dobbs Houses to Quality Mfg. hardly suggests that the Board’s change of heart resulted from a logical “evolutional approach.” Ante, at 265. The Board initially retreated from Dobbs Houses, deciding that it only applied to “investigatory” interviews and holding that if the employer already had decided on discipline the union had a §8 (a)(5) right to attend the interview. Texaco, Inc., Houston Producing Division, 168 N. L. R. B. 361 (1967), enforcement denied, 408 F. 2d 142 (CA5 1969). It reasoned that employee discipline sufficiently affects a “term or condition of employment” to implicate the employer’s obligation to consult with the employee’s bargaining representative, and that direct dealing with an employee on an issue of discipline violated § 8 (a)(5). For several years, the Board adhered to its distinction between “investigative” and “disciplinary” interviews, dismissing claims under both § 8 (a) (1) and § 8 (a) (5) in the absence of evidence that the employer had decided to discipline the employee.

Quality Mfg. Co. was the first case in which the Board perceived any greater content in § 7. It did so, not by relying on “significant developments in industrial life,” ante, at 265, but by stating simply that in none of the earlier cases had a worker been fired for insisting on union representation. The Board also asserted, for the first time, that its earlier decisions had disposed of only the union’s right to bargain with the employer over the discipline to be imposed, and had not dealt with the employee’s right under § 7 to insist on union presence at meetings that he reasonably fears would lead to disciplinary action. 195 N. L. R. B. 197, 198. Even this distinction was abandoned some four months later in Mobil Oil Corp., 196 N. L. R. B. 1052 (1972), enforcement denied, 482 F. 2d 842 (CA7 1973). There the Board followed Quality Mfg., even though the employees in Mobil Oil had not been fired for insisting on union representation and their only claim was that the employer had excluded the union from an investigatory interview. Thus, the Board has turned its back on Dobbs Houses and now finds a § 7 right to insist on union presence in the absence of any evidence that the employer has decided to embark on a course of discipline.

Congress’ goal in enacting federal labor legislation was to create a framework within which labor and management can establish the mutual rights and obligations that govern the employment relationship. “The theory of the Act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the Act in itself does not attempt to compel.” NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 45 (1937). The National Labor Relations Act only creates the structure for the parties’ exercise of their respective economic strengths; it leaves definition of the precise contours of the employment relationship to the collective-bargaining process. See Porter Co. v. NLRB, 397 U. S. 99, 108 (1970); NLRB v. American National Insurance Co., 343 U. S. 395, 402 (1952).

As the Court noted in Emporium Capwell Co. v. Western Addition Community Organization, § 7 guarantees employees’ basic rights of industrial self-organization, rights which are for the most part “collective rights . . . to act in concert with one’s fellow employees, [which] are protected, not for their own sake, but as an instrument of the national labor policy of minimizing industrial strife 'by encouraging the practice and procedure of collective bargaining.’ ” Ante, at 62. Section 7 protects those rights that are essential to employee self-organization and to the exercise of economic weapons to exact concessions from management and demand a voice in defining the terms of the employment relationship. It does not define those terms itself.

The power to discipline or discharge employees has been recognized uniformly as one of the elemental prerogatives of management. Absent specific limitations imposed by statute or through the process of collective bargaining, management remains free to discharge employees at will. See Steelworkers v. Warrior & Gulf Co., 363 U. S. 574, 583 (1960). An employer’s need to consider and undertake disciplinary action will arise in a wide variety of unpredictable situations. The appropriate disciplinary response also will vary significantly, depending on the nature and severity of the employee’s conduct. Likewise, the nature and amount of information required for determining the appropriateness of disciplinary action may vary with the severity of the possible sanction and the complexity of the problem. And in some instances, the employer’s legitimate need to maintain discipline and security may require an immediate response.

This variety and complexity necessarily call for flexible and creative adjustment. As the Court recognizes, ante, at 267, the question of union participation in investigatory interviews is a standard topic of collective bargaining. Many agreements incorporate provisions that grant and define such rights, and arbitration decisions increasingly have begun to recognize them as well. Rather than vindicate the Board’s interpretation of § 7, however, these developments suggest to me that union representation at investigatory interviews is a matter that Congress left to the bargaining process. Even after affording appropriate deference to the Board’s meandering interpretation of the Act, I conclude that the right announced today is not among those that Congress intended to protect in § 7. The type of personalized interview with which we are here concerned is simply not “concerted activity” within the meaning of the Act.

       Section 8(a)(1), 29 U. S. C. §158 (a)(1), provides that it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.”

       Section 7, 29 U. S. C. § 157, 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 158 (a) (3) of this title.”

       Accord: NLRB v. Quality Mfg. Co., 481 F. 2d 1018 (CA4 1973), rev’d, Garment Workers v. Quality Mfg. Co., post, p. 276; Mobil Oil Corp. v. NLRB, 482 F. 2d 842 (CA7 1973). The issue is a recurring one. In addition to this case and Garment Workers v. Quality Mfg. Co., post, p. 276, see Western Electric Co., 205 N. L. R. B. 46 (1973); New York Telephone Co., 203 N. L. R. B. 180 (1973); National Can Corp., 200 N. L. R. B. 1116 (1972); Western Electric Co., 198 N. L. R. B. 82 (1972); Mobil Oil Corp., 196 N. L. R. B. 1052 (1972), enforcement denied, 482 F. 2d 842 (CA7 1973); Lafayette Radio Electronics, 194 N. L. R. B. 491 (1971); Illinois Bell Telephone Co., 192 N. L. R. B. 834 (1971); United Aircraft Corp., 179 N. L. R. B. 935 (1969), aff’d on another ground, 440 F. 2d 85 (CA2 1971); Texaco, Inc., Los Angeles Terminal, 179 N. L. R. B. 976 (1969); Wald Mfg. Co., 176 N. L. R. B. 839 (1969), aff’d on other grounds, 426 F. 2d 1328 (CA6 1970); Dayton Typographic Service, Inc., 176 N. L. R. B. 357 (1969); Jacobe-Pearson Ford, Inc., 172 N. L. R. B. 594 (1968); Chevron Oil Co., 168 N. L. R. B. 574 (1967); Texaco, Inc., Houston Producing Division, 168 N. L. R. B. 361 (1967), enforcement denied, 408 F. 2d 142 (CA5 1969); Electric Motors & Specialties, Inc., 149 N. L. R. B. 1432 (1964); Dobbs Houses, Inc., 145 N. L. R. B. 1565 (1964); Ross Gear & Tool Co., 63 N. L. R. B. 1012 (1945), enforcement denied, 158 F. 2d 607 (CA7 1947). See generally Brodie, Union Representation and the Disciplinary Interview, 15 B. C. Ind. & Com. L. Rev. 1 (1973); Comment, Union Presence in Disciplinary Meetings, 41 U. Chi. L. Rev. 329 (1974).

       The charges also alleged that respondent had violated § 8 (a) (5) by unilaterally changing a condition of employment when, the day after the interview, respondent ordered discontinuance of the free lunch practice. Because respondent’s action was an arbitrable grievance under the collective-bargaining agreement, the Board, pursuant to the deferral-to-arbitration policy adopted in Collyer Insulated Wire, 192 N. L. R. B. 837 (1971), “dismissed” the § 8 (a) (5) allegation. No issue involving that action is before us.

       The Board stated in Quality: “‘Reasonable ground’ will of course be measured, as here, by objective standards under all the circumstances of the case.” 195 N. L. R. B. 197, 198 n. 3. In NLRB v. Gissel Packing Co., 395 U. S. 575, 608 (19600000000009), the Court announced that it would “reject any rule that requires a probe of an employee’s subjective motivations as involving an endless and unreliable inquiry,” and we reaffirm that view today as applicable also in the context of this case. Reasonableness, as a standard, is prescribed in several places in the Act itself. For example, an employer is not relieved of responsibility for discrimination against an employee “if he has reasonable grounds for believing” that certain facts exist, §§ 8 (a)(3)(A), (B), 29 U. S. C. §§158 (a)(3)(A), (B); also, preliminary injunctive relief against certain conduct must be sought if “the officer or regional attorney to whom the matter may be referred has reasonable cause to believe” such charge is true, § 10 (l), 29 U. S. C. § 160 (l). See also Congoleum Industries, Inc., 197 N. L. R. B. 534 (1972); Cumberland Shoe Cory., 144 N. L. R. B. 1268 (1963), enforced, 351 F. 2d 917 (CA6 1965).
      The key objective fact in this case is that the only exception to the requirement in the collective-bargaining agreement that the employer give a warning notice prior to discharge is "if the cause of such discharge is dishonesty.” Accordingly, had respondent been satisfied, based on its investigatory interview, that Collins was guilty of dishonesty, Collins could have been discharged without further notice. That she might reasonably believe that the interview might result in disciplinary action is thus clear.

       “The quantum of proof that the employer considers sufficient to support disciplinary action is of concern to the entire bargaining unit. A slow accretion of custom and practice may come to control the handling of disciplinary disputes. If, for example, the employer adopts a practice of considering [a] foreman’s unsubstantiated statements sufficient to support disciplinary action, employee protection against unwarranted punishment is affected. The presence of a union steward allows protection of this interest by the bargaining representative.” Comment, Union Presence in Disciplinary Meetings, 41 U. Chi. L. Rev. 329, 338 (1974).

       See, e. g., Independent Lock Co., 30 Lab. Arb. 744, 746 (1958): “[Participation by the union representative] might reasonably be designed to clarify the issues at this first stage of the existence of a question, to bring out the facts and the policies concerned at this stage, to give assistance to employees who may lack the ability to express themselves in their cases, and who, when their livelihood is at stake, might in fact need the more experienced kind of counsel which their union steward might represent. The foreman, himself, may benefit from the presence of the steward by seeing the issue, the problem, the implications of the facts, and the collective bargaining clause in question more clearly. Indeed, good faith discussion at this level may solve many problems, and prevent needless hard feelings from arising .... [It] can be advantageous to both parties if they both act in good faith and seek to discuss the question at this stage with as much intelligence as they are capable of bringing to bear on the problem.”
      See also Caterpillar Tractor Co., 44 Lab. Arb. 647, 651 (1965):
      “The procedure . . . contemplates that the steward will exercise his responsibility and authority to discourage grievances where the action on the part of management appears to be justified. Similarly, there exists the responsibility upon management to withhold disciplinary action, or other decisions affecting the employees, where it can be demonstrated at the outset that such action is unwarranted. The presence of the union steward is regarded as a factor conducive to the avoidance of formal grievances through the medium of discussion and persuasion conducted at the threshold of an impending grievance. It is entirely logical that the steward will employ his office in appropriate cases so as to limit formal grievances to those which involve differences of substantial merit. Whether this objective is accomplished will depend on the good faith of the parties, and whether they are amenable to reason and persuasion.”

       1 CCH Lab. L. Rep., Union Contracts, Arbitration ¶ 59,520, pp. 84,988-84,989.

       The precedents cited by the Court of Appeals are: Illinois Bell Telephone Co., 192 N. L. R. B. 834 (1971); Texaco, Inc., Los Angeles Terminal, 179 N. L. R. B. 976 (1969); Wald Mfg. Co., 176 N. L. R. B. 839 (1969), aff’d, 426 F. 2d 1328 (CA6 1970); Dayton

        Typographic Service, Inc., 176 N. L. R. B. 357 (1969); Jacobe-Pearson Ford, Inc., 172 N. L. R. B. 594 (1968); Chevron Oil Co., 168 N. L. R. B. 574 (1967); Dobbs Homes, Inc., 145 N. L. R. B. 1565 (1964). See also NLRB v. Ross Gear & Tool Co., 158 F. 2d 607 (CA7 1947).

       “There has been a recent growth in the use of sophisticated techniques — such as closed circuit television, undercover security-agents, and lie detectors — to monitor and investigate the employees’ conduct at their place of work. See, e. g., Warwick Electronics, Inc., 46 L. A. 95, 97-98 (1966); Bowman Transportation, Inc., 56 L. A. 283, 286-292 (1972); FMC Corp., 46 L. A. 335, 336-338 (1966). These techniques increase not only the employees’ feelings of apprehension, but also their need for experienced assistance in dealing with them. Thus, often, as here and in Mobil, supra, an investigative interview is conducted by security specialists; the employee does not confront a supervisor who is known or familiar to him, but a stranger trained in interrogation techniques. These developments in industrial life warrant a concomitant reappraisal by the Board of their impact on statutory rights. Cf. Boys Markets, Inc. v. Retail Clerks, Local 770, 398 U. S. 235, 250.” Brief for Petitioner 27 n. 22.

       1 BN A Collective Bargaining Negotiations and Contracts 21:22 (General Motors Corp. and Auto Workers, |76a); 27:6 (Goodyear Tire & Rubber Co. and Rubber Workers, Art. V (5)); 29:15-29:16 (United States Steel Corp. and United Steelworkers, §§ 8 B [8.4] and [8.7]). See, e. g., the Bethlehem Steel Corp. and United Steelworkers Agreement of 1971, Art. XI, §4 (d), which provided:
      “Any Employee who is summoned to meet in an enclosed office with a supervisor for the purpose of discussing possible disciplinary action shall be entitled to be accompanied by the Assistant Grievance Committeeman designated for the area if he requests such representation, provided such representative is available during the shift.”

       See also Universal Oil Products Co., 60 Lab. Arb. 832, 834 (1973): “[A]n employee is entitled to the presence of a Committeeman at an investigatory interview if he requests one and if the employee has reasonable grounds to fear that the interview may be used to support disciplinary action against him.” Allied Paper Co., 53 Lab. Arb. 226 (1969); Thrifty Drug Stores Co., Inc., 50 Lab. Arb. 1253, 1262 (1968); Waste King Universal Products Co., 46 Lab. Arb. 283, 286 (1966); Dallas Morning News, 40 Lab. Arb. 619, 623-624 (1963); The Arcrods Co., 39 Lab. Arb. 784, 788-789 (1962); Valley Iron Works, 33 Lab. Arb. 769, 771 (1960); Schlitz Brewing Co., 33 Lab. Arb. 57, 60 (1959); Singer Mfg. Co., 28 Lab. Arb. 570 (1957); Braniff Airways, Inc., 27 Lab. Arb. 892 (1957); John Lucas & Co., 19 Lab. Arb. 344, 346-347 (1952). Contra, e. g., E. I. duPont de Nemours & Co., 29 Lab. Arb. 646, 652 (1957); United Air Lines, Inc., 28 Lab. Arb. 179, 180 (1956).

      [This opinion applies also to No. 73-765, International Ladies’ Garment Workers’ Union, Upper South Department, AFL-CIO v. Quality Manufacturing Co. et al., post, p. 276.]

       While the Court speaks only of the right to insist on the presence of a union representative, it must be assumed that the § 7 right today recognized, affording employees the right to act “in concert” in employer interviews, also exists in the absence of a recognized union. Cf. NLRB v. Washington Aluminum, Co., 370 U. S. 9 (1962).

       In one earlier case the Board had found a § 8 (a) (1) violation in the employer’s refusal to admit a union representative ■ to an interview. Ross Gear & Tool Co., 63 N. L. R. B. 1012, 1033-1034 (1945), enforcement denied, 158 F. 2d 607, 611-614 (CA7 1947). In that case, however, the Board found that the employee, a union committee member; was called in to discuss a pending union issue. The Board found that discharging her for insisting on the presence of the entire committee was a discriminatory discharge under § 8 (a)(1). The opinion in Dobbs Houses distinguished Ross Gear on the ground that the matter under investigation was protected union activity. 145 N. L. R. B., at 1571.

       The Board has not been called upon to pursue its § 8 (a) (5) theory to its logical conclusion. Its determination that all disciplinary decisions are matters that invoke the employer’s mandatory duty to bargain would seem to suggest that, absent some qualification of the duty contained in the collective-bargaining agreement, federal law will now be read to require that the employer bargain to impasse before initiating unilateral action on disciplinary matters. It is difficult to believe that Congress intended such a radical restriction of the employer’s power to discipline employees. See Fibre-board, Corp. v. NLRB, 379 U. S.203, 217, 218, 223 (1964) (Stewart, J., concurring).

         Lafayette Radio Electronics, 194 N. L. R. B. 491 (1971); Illinois Bell Telephone Co., 192 N. L. R. B. 834 (1971); Texaco, Inc., Los Angeles Terminal, 179 N. L. R. B. 976 (1969); Jacobe-Pearson Ford, Inc., 172 N. L. R. B. 594 (1968); Chevron Oil Co., 168 N. L. R. B. 574 (1967).

       By contrast, the employee’s § 7 right announced today may prove to be of limited value to the employee or to the stabilization of labor relations generally. The Court appears to adopt the Board’s view that investigatory interviews are not bargaining sessions and that the employer legitimately can insist on hearing only the employee’s version of the facts. Absent employer invitation, it would appear that the employee’s § 7 right does not encompass the right to insist on the participation of the person he brings with him to the investigatory meeting. The new right thus appears restricted to the privilege to insist on'the mute and inactive presence of a fellow employee or a union representative; a witness to the interview, perhaps.

       Section 8 (a)(1) forbids employers to take disciplinary actions that “interfere with, restrain, or coerce” the employee’s exercise of § 7 rights. Other federal statutes also limit in certain respects the employer’s basic power to discipline and discharge employees. See, e. g., § 706 of the Civil Rights Act of 1964, 78 Stat. 259, 42 U. S. C. § 2000e-5; Age Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U. S. C. § 623.

       The Board and the courts have recognized that union demands for provisions limiting the employer’s power to discharge can be the subject of mandatory bargaining. See Fibreboard Corp. v. NLRB, 379 U. S., at 217, 221-223 (Stewart, J., concurring).

       The history of a similar case, Mobil Oil, 196 N. L. R. B. 1052 (1972), enforcement denied, 482 F. 2d 842 (CA7 1973), illustrates how the Board has substituted its judgment for that of the collective-bargaining process. During negotiations leading to the establishment of a collective-bargaining agreement in that case, the union advanced a demand that existing provisions governing suspension and discharge be amended to provide for company-union discussions prior to disciplinary action. The employer refused to accede to that demand and ultimately prevailed, only to find his efforts at the bargaining table voided by the Board's interpretation of the statute.
      Chairman Miller subsequently suggested that the union can waive the employee’s § 7 right to the presence of a union representative. See Western Electric Co., 198 N. L. R. B. 82 (1972). The Court today provides no indication whether such waivers in the collective-bargaining process are permissible. Cf. NLRB v. Magnavox Co., 415 U. S. 322 (1974).


author: Me. Justice Brennan

text:
    INTERNATIONAL LADIES’ GARMENT WORKERS’ UNION, UPPER SOUTH DEPARTMENT, AFL-CIO v. QUALITY MANUFACTURING CO. et al.
    No. 73-765.
    Argued November 18, 1974
    Decided February 19, 1975

      Bernard Dunau argued the cause for petitioner. With him on the briefs were Max Zimny, Bernard Bubenstein, and Bernard P. Jeweler.

      John E. Jenkins, Jr., argued the cause and filed a brief for respondent Quality Manufacturing Co. Solicitor General Bork, Peter G. Nash, John S. Irving, Patrick Hardin, Norton J. Gome, and Linda Sher filed a brief for respondent National Labor Relations Board.

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

   Me. Justice Brennan

delivered the opinion of the Court.

We set this case for argument with No. 73-1363, NLRB v. Weingarten, Inc., ante, p. 251, 416 U. S. 968 (1974). The National Labor Relations Board held in this case, as it held in Weingarten, that the denial by respondent employer (hereinafter respondent) of an employee’s request that her union representative be present at an investigatory interview which the employee reasonably believed might result in disciplinary action, constituted an unfair labor practice in violation of § 8 (a)(1) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U. S. C. § 158 (a)(1), because it interfered with, restrained, and coerced the individual right of the employee, protected by § 7 of the Act, 29 U. S. C. § 157, “to engage in . . . concerted activities for . . . mutual aid or protection . . . ,” 195 N. L. R. B. 197 (1972). The Court of Appeals for the Fourth Circuit held, as the Court of Appeals for the Fifth Circuit held in Weingarten, that this was an impermissible construction of § 7 and denied enforcement of so much of the Board’s order as directed respondent to cease and desist from requiring an employee requesting such representation to take part in such an interview without that representation if the employee reasonably feared disciplinary action, and also refused enforcement of provisions that directed respondent to offer reinstatement, with backpay, to the employees who were discharged for asserting this right. 481 F. 2d 1018 (1973). We reverse.

Respondent, a manufacturer of women’s clothing, discharged Catherine King on October 16, 1969, after she refused to attend an interview with the company president without union representation. That same day, the company discharged shop chairlady Delila Mulford for her persistence in seeking to represent King at the interview, and assistant chairlady Martha Cochran for filing grievances on behalf of King and Mulford.

The events leading to the discharges began on October 10, 1969, when Mulford, King, and two other employees met with Lawrence Gerlach, Sr., the company president; Mary Kathryn Gerlach, his wife and company production manager; and Lawrence Gerlach, Jr., their son and general manager, to complain that they were unable to make a satisfactory wage under the piecework system then in effect. The meeting ended on an acrimonious note when Gerlach, Jr., ordered the employees to return to work and told them that they were free to “go elsewhere” if they were dissatisfied with the company. Later that day, Mrs. Gerlach noticed that King had shut off her machine and was speakingHo several other workers who had also stopped their machines. When ordered to resume production, King told Mrs. Gerlach to mind her own business. Thereupon Mrs. Gerlach directed King to report to Gerlach, Sr.’s office. King complied, but on her way to the office asked union chairlady Mulford to accompany her. Gerlach, Sr., met King and Mulford in the anteroom to his office. He told Mulford to return to work, and ordered King into his office alone. Neither woman complied, and King stated that she would not submit to an interview in the absence of her union representative. At this, Gerlach, Sr., told both women to return to their work stations. That Sunday, October 12, Mrs. Gerlach phoned Mulford and told her that she was suspended for two days. The Board found that the suspension was motivated by Mulford’s attempt to represent King at the interview with Gerlach, Sr. 195 N. L. R. B., at 199.

On Monday, October 13, when King reported for work her timecard was missing from the rack, indicating under plant practice that she was wanted in the president’s office. Before going to the office, however, King asked assistant chairlady Cochran to accompany her. They were met at the president’s office by Mrs. Gerlach who told Cochran to go directly to work if she wanted to keep her job because the president wanted to take up with King where they left off on Friday. Cochran replied: “Well, Mrs. Gerlach, I’m sorry, but if that’s what you want to talk to her about, that is Union business and she has asked me to represent her.” Gerlach, Sr., told King he would not return her timecard until she met with him alone in his office. King and Cochran then waited outside the president’s office all day, and during this time Cochran’s timecard was also removed from the rack.

Again on the morning of October 14, Gerlach, Sr., told King he would not return her timecard until she agreed to meet with him alone. When Cochran asked about her timecard, Gerlach replied that she was suspended for two days for being away from her machine. The Board termed this reason “pretextual,” and found that in fact Cochran’s attempt to represent King was the reason for the suspension. Neither King nor Cochran worked that day. Much the same transpired the next day, but" tins time Mulford, whose two-day suspension had expired, was also present. After King refused to meet in private with Gerlach, Sr., she and Cochran left the plant, and Mulford returned to work.

Finally, on October 16, all three women went to the president’s office. Mrs. Gerlach gave Cochran her time-card and she returned to work. Gerlach, Sr., told King if she refused again to meet with him alone she would be fired. King walked out. Mulford then asked if she could return to work, and Gerlach, Sr., replied: “No, you’ve abandoned your job. You’re finished.” Later that same day, Cochran attempted to present grievances on behalf of King, Mulford, and herself to Gerlach, Jr. He stated he was about to leave town and had no time for such things. When she put the list of grievances on his desk, he picked them up and threw them into the wastebasket. He then pulled Cochran's timecard and told her: “You worked this morning, but you're not working this afternoon.” When Cochran asked Gerlach, Sr., if she had been fired he replied: “Just go home. You wanted to draw unemployment now go on and draw it.” The Board found that “[t]here can be no doubt that under the facts and circumstances of this case King had reasonable grounds to believe that disciplinary action might result from the Employer's investigation of her conduct.” 195 N. L. R. B., at 199. King, therefore, had a reasonable basis for desiring union representation, and the Board found that respondent discharged her for insisting on that right. The Board found further that Mulford and Cochran were suspended, and Mulford discharged, because they insisted on representing King at the interview. Since Mulford and Cochran were engaging in a protected concerted activity, the suspensions and Mulford’s discharge violated §8 (a)(1). Finally, the Board determined that respondent discharged Cochran because she sought to file grievances on behalf of King, Mulford, and herself, and that this discharge was in violation of §§ 8 (a) (1) and (3).

On these facts, our decision today in No. 73-1363, NLRB v. Weingarten, Inc., ante, p. 251, clearly requires reversal of the judgment of the Court of Appeals insofar as enforcement of the Board’s order was denied. The judgment is accordingly reversed and the case remanded to the Court of Appeals with direction to enter a new judgment enforcing the Board’s order in its entirety.

It is so ordered.

[For dissenting opinion of Mr. Chief Justice Burger, see ante, p. 268.]

Mr. Justice Powell, with whom Mr. Justice Stewart joins, dissenting.

For the reasons stated in my dissent in NLRB v. Weingarten, Inc., ante, p. 269,1 dissent.

       Later that day, Cochran telephoned Gerlach, Sr.’s secretary to learn whether Gerlach wanted her to report to work the next day. The secretary told her: “He said no.” Cochran then asked the secretary to “tell him that he can reach me at my home phone when he needs me.” Cochran was never notified to return to work. The Trial Examiner found, and the Board agreed, that Cochran was discharged, and that she did not abandon her job. 195 N. L. R. B. 197, 199 n. 9.

       The Court of Appeals enforced that portion of the Board’s order relating to Cochran’s discharge. The court determined that there was substantial evidence to support the Board’s finding that she was discharged because she sought to engage in the protected union aetivity of filing grievances on behalf of King, Mulford, and herself. The company has not filed a cross-petition, and that aspect of the Court of Appeals’ decision is not before us. Brennan v. Arnheim & Neely, Inc., 410 U. S. 512, 516 (1973); NLRB v. International Van Lines, 409 U. S. 48, 52 n. 4 (1972); Alaska Ind. Bd. v. Chugach Assn., 356 U. S. 320, 325 (1958).

       We do not address respondent’s objection that it was denied procedural due process because the Board based its order upon a theory of liability under § 8 (a) (1) allegedly not charged or litigated before the Board. The argument is that respondent participated in the proceedings upon the premise that the issue for decision was whether respondent had decided upon discipline prior to the interview, so as to constitute the interview disciplinary and not investigatory in nature, and had no prior notice that, instead of deciding that question, the Board’s decision would turn upon a finding that the employee had “reasonable grounds to fear . . . discipline” at the interview. But respondent failed to file a petition for reconsideration as permitted by Board Rules and Regulations § 102.48 (d)(1), 29 CFR § 102.48 (d)(1), that provides that any material error in the Board’s decision may be asserted through a motion for “reconsideration, rehearing, or reopening of the record.” Respondent therefore cannot assert its objection on appeal “unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” 29 U. S. C. § 160 (e). Respondent did not suggest any “extraordinary circumstances” in either the Court of Appeals or in this Court. The objection therefore may not be considered. NLRB v. Mine Workers, 355 U. S. 453, 463-464 (1958); Glaziers’ Local No. 568 v. NLRB, 132 U. S. App. D. C. 394, 399-400, 408 F. 2d 197, 202-203 (1969).


author:
Me. Justice Stewart
      Mr. Justice White, Mr. Justice Powell,

text:
    LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK v. NEWSOME
    No. 73-1627.
    Argued December 11, 1974
    Decided February 19, 1975
    Stewart, J., delivered the opinion of the Court, in which Douglas, BreNNAN, Marshall, and Blackmun, JJ., joined. White, J., post, p. 294, and Powell, J., post, p. 302, filed dissenting opinions, in which Burger, C. J., and RehNQuist, J., joined.

      Robert 8. Hammer, Assistant Attorney General of New York, argued the cause for petitioner. With him on the brief were Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Irving Galt, Assistant Attorney General.

      Stanley Neustadter argued the cause for respondent. With him on the brief was William E. Hellerstein.

   Me. Justice Stewart

delivered the opinion of the Court.

The respondent Leon Newsome was arrested pursuant to N. Y. Penal Law § 240.35 (6) for loitering in the lobby of a New York City Housing Authority apartment building. A search of Newsome conducted at the time of his arrest produced a small quantity of heroin and related narcotics paraphernalia. Consequently, in addition to the offense of loitering, he was also charged with possession of a dangerous drug, fourth degree, N. Y. Penal Law § 220.05 (now codified, as modified, as N. Y. Penal Law § 220.03), and criminally possessing a hypodermic instrument. N. Y. Penal Law § 220.45.

The New York City Criminal Court conducted a non-jury trial on the loitering charge and a hearing on New-some’s motion to suppress the evidence seized at the time of his arrest. Newsome argued that the arresting officer did not have probable cause for the loitering arrest, that there was insufficient evidence to support a loitering conviction, and that the loitering statute was unconstitutional and therefore could not serve as the basis for either a loitering conviction or a lawful search incident to arrest. The court rejected these arguments, found Newsome guilty of loitering, and denied the motion to suppress.

One month later, on the date scheduled for trial on the drug charges, Newsome withdrew his prior pleas of not guilty and pleaded guilty to the lesser charge of attempted possession of dangerous drugs. N. Y. Penal Law § 110. He was immediately sentenced to 90 days’ imprisonment on the attempted-possession conviction and received an unconditional release on the loitering conviction.

At the sentencing proceeding Newsome indicated his intention to appeal both the loitering conviction and the denial of his motion to suppress the drugs and related paraphernalia seized at the time of his arrest. Appeal of the adverse decision on the motion to suppress was authorized by N. Y. Code Crim. Proc. § 813-c (now re-codified as N. Y. Crim. Proc. Law §§ 710.20 (1), 710.70 (2)), which provided that an order denying a motion to suppress evidence alleged to have been obtained as a result of unlawful search and seizure “may be reviewed on appeal from a judgment of conviction notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty.”

On direct appeal to the Appellate Term of the New York Supreme Court, the loitering conviction was reversed for insufficient' evidence and a defective information. Because the court held that there was probable cause to arrest Newsome for loitering, however, the search incident to that arrest was upheld and the drug conviction affirmed. Newsome sought further review of the drug conviction, but leave to appeal to the New York Court of Appeals was denied. This Court denied a petition for a writ of certiorari. Newsome v. New York, 405 U. S. 908.

Newsome then filed a petition for a writ of habeas corpus in the District Court for the Eastern District of New York. The petition reiterated the claim that the loitering statute was unconstitutional, that Newsome's arrest was therefore invalid, and that as a result the evidence seized incident to that arrest should have been suppressed. Prior to the District Court's decision on the merits of Newsome’s petition, the New York Court of Appeals declared New York's loitering statute unconstitutional. People v. Berck, 32 N. Y. 2d 567, 300 N. E. 2d 411. In light of the Berck decision, the District Court granted Newsome’s application for a writ of habeas corpus.

The petitioner, the Attorney General of New York, who had been granted leave by the District Court to intervene as a respondent in the habeas corpus proceeding, appealed. The Court of Appeals for the Second Circuit affirmed the judgment of the District Court, United States ex rel. Newsome v. Malcolm, 492 F. 2d 1166, adhering to its earlier rulings that a New York defendant who has utilized state procedures to appeal the denial of a motion to suppress may pursue his constitutional claim on a federal habeas corpus petition although the conviction was based on a plea of guilty. Id., at 1169-1171. The court held that New York’s loitering statute violated due process because it failed to specify adequately the conduct it proscribed and failed to provide sufficiently clear guidance for police, prosecutors, and the courts so that they could enforce the statute in a manner consistent with the constitutional requirement that arrests be based on probable cause. Id., at 1171-1174. Accordingly, the court held that because Newsome was searched incident to an arrest for the violation of a statute found to be unconstitutional on the ground that it substituted mere suspicion for probable cause as the basis for arrest, the search of Newsome was also constitutionally invalid. The court concluded that the evidence seized should have been suppressed, and affirmed the District Court’s judgment granting the writ of habeas corpus. Id., at 1174-1175.

The Attorney General of New York sought review here of both the Court of Appeals’ decision that Newsome had not waived his right to file a federal habeas corpus petition by pleading guilty and its decision as to the constitutionality of New York’s loitering statute. Because of a conflict between the judgment in the present case and a decision of the Court of Appeals for the Ninth Circuit, we granted certiorari limited to the question of a defendant’s right to file a federal habeas corpus petition challenging the lawfulness of a search or the voluntariness of a confession or presenting other constitutional claims when a State provides for appellate review of those issues after a guilty plea. 417 U. S. 967.

I

In contending that Newsome is precluded from raising his constitutional claims in this federal habeas corpus proceeding, the petitioner relies primarily on this Court’s decisions in the guilty-plea trilogy of Brady v. United States, 397 U. S. 742, McMann v. Richardson, 397 U. S. 759, and Parker v. North Carolina, 397 U. S. 790, and on our decision in Tollett v. Henderson, 411 U. S. 258. The Brady trilogy announced the general rule that a guilty plea, intelligently and voluntarily made, bars the later assertion of constitutional challenges to the pretrial proceedings. This principle was reaffirmed in Tollett v. Henderson, supra, at 267: "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”

But the Court also suggested in the Brady trilogy that an exception to this general rule might be proper when a State decides to permit a defendant to appeal from an adverse ruling in a pretrial hearing despite the fact that his conviction is based on a guilty plea. See McMann v. Richardson, supra, at 766, and n. 11, 770 n. 13. The justification for such an exception lies in the special nature of the guilty plea of a New York defendant like Newsome.

In most States a defendant must plead not guilty and go to trial to preserve the opportunity for state appellate review of his constitutional challenges to arrest, admissibility of various pieces of evidence, or the voluntariness of a confession. A defendant who chooses to plead guilty rather than go to trial in effect deliberately refuses to present his federal claims to the state court in the first instance. McMann v. Richardson, supra, at 768. Once the defendant chooses to bypass the orderly procedure for litigating his constitutional claims in order to take the benefits, if any, of a plea of guilty, the State acquires a legitimate expectation of finality in the conviction thereby obtained. Cf. Fay v. Noia, 372 U. S. 391, 438. It is in this sense, therefore, that ordinarily “a guilty plea represents a break in the chain of events which has preceded it in the criminal process.” Tollett v. Henderson, supra, at 267.

New York, however, has chosen not to treat a guilty plea as such a “break in the chain of events” with regard to certain types of constitutional claims raised in pretrial proceedings. For a New York defendant whose basic defense consists of one of those constitutional claims and who has already lost a pretrial motion to suppress based on that claim, there is no practical difference in terms of appellate review between going to trial and pleading guilty. In neither event does the State assert any claim of finality because of the judgment of conviction. In either event under New York procedure the defendant has available the full range of state appellate review of his constitutional claims. As to those claims, therefore, there is no “break” at all in the usual state procedure for adjudicating constitutional issues. The guilty plea operates simply as a procedure by which the constitutional issues can be litigated without the necessity of going through the time and effort of conducting a trial, the result of which is foreordained if the constitutional claim is invalid. The plea is entered with the clear understanding and expectation by the State, the defendant, and the courts that it will not foreclose judicial review of the merits of the alleged constitutional violations.

In sum, although termed by the New York Criminal Procedure Law a “guilty plea,” the same label given to the pleas entered by the defendants in the Brady trilogy of cases and Tollett v. Henderson, Newsome’s plea had legal consequences quite different from the consequences of the pleas entered in traditional guilty-plea cases. Far from precluding review of independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of his “guilty plea,” Newsome’s plea carried with it the guarantee that judicial review of his constitutional claims would continue to be available to him. In this respect there is no meaningful difference between Newsome’s conviction and a New York conviction entered after a trial.

Because of the entirely different expectations surrounding Newsome’s plea and the completely different legal consequences flowing from it, earlier guilty-plea cases holding that “[t]he focus of federal habeas inquiry is the nature of the advice [of counsel] and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity,” Tollett v. Henderson, supra, at 266, are simply inapposite. Newsome has satisfied all the prerequisites for invoking the habeas corpus jurisdiction of the federal courts. He is no less entitled to federal review of his constitutional claim than is any other defendant who raises his claim in a timely fashion, in accordance with state procedure, and who pursues his claim through all available levels of state appellate review.

II

Denying Newsome the right to file a federal habeas corpus petition raising his claim of an unconstitutional seizure would not only deprive him of a federal forum despite the fact that he has satisfied all the requirements for invoking federal habeas corpus jurisdiction, it would also frustrate the State’s policy in providing for post-guilty plea appellate review of pretrial motions to suppress.

Many defendants recognize that they cannot prevail at trial unless they succeed in suppressing either evidence seized by the police or an allegedly involuntary confession. Such defendants in States with the generally prevailing rule of finality of guilty pleas will often insist on proceeding to trial for the sole purpose of preserving their claims of illegal seizures or involuntary confessions for potential vindication on direct appellate review or in collateral proceedings. Recognizing the completely unnecessary waste of time and energy consumed in such trials, New York has chosen to discourage them by creating a procedure which permits a defendant to obtain appellate review of certain pretrial constitutional claims without imposing on the State the burden of going to trial.

To deny federal habeas corpus relief to those in New-some’s position would make New York’s law a trap for the unwary. On the other hand, it is safe to predict that those New York defendants who knew that federal habeas corpus would be foreclosed would again be dissuaded from pleading guilty and instead would insist on •a trial solely to preserve the right to an ultimate federal forum in which to litigate their constitutional claims. Such a result would eviscerate New York’s commendable efforts to relieve the problem of congested criminal trial calendars in a manner that does not diminish the opportunity for the assertion of rights guaranteed by the Constitution.

Accordingly, we hold that when state law permits a defendant to plead guilty without forfeiting his right to judicial review of specified constitutional issues, the defendant is not foreclosed from pursuing those constitutional claims in a federal habeas corpus proceeding. The judgment of the Court of Appeals for the Second Circuit is affirmed.

It is so ordered.

Mr. Justice White,

with whom The Chief Justice and Mr. Justice Rehnquist join, dissenting.

Because I believe that federal law provides respondent Newsome no right to set aside his plea of guilty — a solemn, counseled admission in open court that he is in fact guilty — even assuming that he had previously been the victim of a search which did not measure up to federal standards, I respectfully dissent.

I

The federal habeas corpus statute, pursuant to which Newsome sought to have the courts below set aside his plea of guilty, provides relief only if the petitioner can establish that "he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. § 2254 (a). It is common ground, I take it, that the Federal Constitution does not itself entitle a defendant who has pleaded guilty to have that plea set aside upon a showing that he has previously been the victim of an unconstitutional search, even if he can also show that he pleaded guilty only because the prosecution planned to use the fruits of the search against him at trial. Blackledge v. Perry, 417 U. S. 21 (1974); Tollett v. Henderson, 411 U. S. 258 (1973); Brady v. United States, 397 U. S. 742 (1970); McMann v. Richardson, 397 U. S. 759 (1970); Parker v. North Carolina, 397 U. S. 790 (1970). In Tollett, we said:

“We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.” 411 U. S., at 267. (Emphasis added.)

This “principle” is a rule of substantive constitutional law limiting the federal constitutional grounds upon which a defendant may attack a judicial admission of guilt. It is not, as the majority assumes, ante, at 289, a rule of procedure, disentitling a defendant to raise a Fourth Amendment claim which was not properly “preserved” under state law. If it were such a rule of procedure, both McMann and Tollett would have come out differently: both were federal habeas corpus proceedings; as the majority points out, ante, at 290 n. 6, federal issues are “preserved” for habeas corpus purposes unless state procedures for litigating them have been “deliberately bypassed”; and neither the petitioner in McMann nor the petitioner in Tollett had “deliberately bypassed” state procedures for raising the coerced-confession or grand-jury-discrimination claims there involved. Indeed, the entire majority opinion rests on the erroneous notion that we refused to hear antecedent constitutional claims in McMann and Tollett because the defendants had “bypassed” those claims by pleading guilty. In fact, those decisions were based on the substantive proposition that the defendants’ guilt in those cases, and the State’s consequent absolute right to incarcerate them, was established by their voluntary and intelligent pleas of guilty.

The question raised in this case, therefore, is whether, if a State chooses to open its appellate courts to hear claims of constitutional deprivations preceding entry of a guilty plea and to set aside the plea if the antecedent violation is established, the State thereby creates a fed eral constitutional right to set aside the guilty plea where none would have existed otherwise. The question almost answers itself. More importantly, however, it has already been answered by this Court in Parker v. North Carolina, supra.

In Parker, the defendant sought to set aside his guilty plea in a state habeas corpus proceeding alleging, inter alia, that a confession had been unconstitutionally coerced from him and that he pleaded guilty only because of the confession. The state trial court held a hearing on the merits of the coerced-confession claim and found both the confession and the subsequent plea to have been voluntary. On appeal, the North Carolina Court of Appeals clearly accepted the proposition that Parker’s plea should be set aside if the confession was involuntary, and if it was the but-for cause of the plea. Parker v. State, 2 N. C. App. 27, 32, 162 S. E. 2d 526, 529. It concluded, however, that Parker’s confession was voluntary and his plea not the product of it. On cer-tiorari, we did not feel compelled — by the fact that North Carolina gave Parker a right to set aside his plea if it wás based upon a confession coerced in violation of federal standards — to give him a similar right. Instead, assuming that the confession was inadmissible and that he pleaded guilty in the contrary belief, we held that Parker was not entitled “to disavow his admission in open court that he committed the offense with which he was charged.” 397 U. S., at 797. Like Newsome in New York, a defendant who loses a pretrial suppression motion in North Carolina and then pleads guilty may assume, by reading the North Carolina Court of Appeals opinion in Parker v. State, supra, that state appellate courts will hear the merits of his claim (in a state habeas corpus proceeding, if he can establish that his guilty plea was entered because the suppression motion was denied). However, our decision in Parker would preclude any claim that this Court or any federal court would do likewise. Similarly, here, Newsome's guilt has been established by as reliable a method as is known to the criminal law — his solemn admission of guilt, made in open court. The Federal Constitution entitles him to set aside that plea only upon a showing that it was involuntary or unintelligent. The fact that New York State has nonetheless chosen to set aside his conviction upon a showing that he was the victim of a previous illegal seizure does not and cannot alter substantive federal constitutional law.

II

The majority contends, however, that since state law provides a defendant with a “guarantee” that he may plead guilty and still litigate his Fourth Amendment claim, it cannot possibly be said that he has chosen to bypass that claim by pleading guilty. Moreover, the majority asserts that the New York guilty plea involved here is a “guilty plea” in name only, and is something else in reality in light of the “different expectations” surrounding it and the different “legal consequences” flowing from it. There are two things wrong with these contentions.

First, the contentions assume that the Brady trilogy was based upon notions of waiver. In other words, it assumes that this Court has in the past refused to set aside “guilty pleas” on the basis of antecedent violations of constitutional rights only because the plea was deemed to have “waived” those rights. This assumption finds some support in the language of those cases, but waiver was not their basic ingredient. In any event, the Court squarely and conclusively rejected the waiver rationale in Tollett v. Henderson, supra. We said there:

“If the issue were to be cast solely in terms of ‘waiver/ the Court of Appeals was undoubtedly correct in concluding that there had been no such waiver here.” 411 U. S., at 266.

Nonetheless, the Court of Appeals’ decision in Tollett was reversed. Under Tollett’s interpretation of the trilogy, and under Tollett itself, federal constitutional principles simply preclude the setting aside of a state conviction by a federal court where the defendant’s guilt has been conclusively established by a voluntary and intelligent plea of guilty. Labels aside, a guilty plea for federal purposes is a judicial admission of guilt conclusively establishing a defendant’s factual guilt. Newsome’s plea plainly qualifies.

Second, the contentions assume that New York State intended to create the expectation and has the power to create the expectation on the part of defendants who plead guilty that they will be able to litigate their antecedent Fourth Amendment claims not only in state courts, but also in federal courts. There is absolutely no reason to suppose that New York intended to create such expectations and, if it had so intended, it would have been acting plainly beyond its power. New York State may, of course, give its defendants as a matter of state law the right to set aside guilty pleas on the basis of antecedent violations of federal constitutional search standards. If they do, it cannot be said that a defendant who pleads guilty has “waived” that state-law right. But, it is for Congress or this Court to decide whether federal law gives a defendant the right to set aside his plea under such circumstances. The “legal circumstances” in federal courts which will flow from a state plea, and the “expectations” which a defendant should have about what will occur in federal courts following the plea are not matters to be decided by the New York Legislature and surely not finally by the Court of Appeals for the Second Circuit. If this Court had followed its prior decisions and reiterated in the present context that Newsome may not litigate his Fourth Amendment claim in federal court, then once those who counsel defendants in the New York court system read the opinion, it would be incontestable that a guilty plea in New York would foreclose federal habeas corpus relief based on already rejected Fourth Amendment claims and that no defendant might legitimately harbor “expectations” to the contrary.

Thus, even under a waiver theory, counseled defendants waive all rights by pleading guilty, which the applicable law says they waive; and, since the applicable law in this case is federal, it is for us, and not the New York State Legislature, to say whether Fourth Amendment claims such as those involved here will or will not be waived by a guilty plea. To illustrate, suppose instead of passing the statute involved here New York had sought to achieve substantially the same result by permitting pretrial appeals from denials of suppression motions in all cases in which the trial judge certified that the seized evidence was likely to be determinative of the outcome of the trial. Suppose further that a defendant avails himself of this opportunity, loses on the merits of his Fourth Amendment claim in the highest state court, and subsequently pleads guilty. Suppose, finally, the State passed a second statute permitting a defendant who pleads guilty under the circumstances just described to appeal his conviction directly to this Court or to bring directly a federal habeas corpus proceeding attacking the constitutionality of the search — the statute expressly stating that the Fourth Amendment right is deemed not waived by the plea of guilty. The second statute would, obviously, be of no effect whatever, since it would be a plain effort by the State to legislate federal law. However, so far as the federal courts are concerned, the hypothesized statute is the functional equivalent of the statute at issue in this case as construed and effectuated by the majority. The only difference is that, in the case of the real statute, the state appeals follow the plea rather than precede it.

Finally, the majority argues that a contrary decision by this Court would interfere with the State’s policy of avoiding unnecessary trials by permitting appeals from guilty pleas. New York, whose policy this Court is seeking to further, has appeared here through its Attorney General and argued precisely to the contrary. Obviously, New York believes that its policy is adequately served by the state appeals. There is no reason for the Court to decide the case one way for New York’s benefit, when New York is arguing strenuously that we should decide the case the other way.

Mr. Justice Powell,

with whom The Chief Justice and Mr. Justice Rehnquist join,

dissenting.

I would reverse the judgment of the Court of Appeals for the reasons set forth in my concurring opinion in Schneckloth v. Bustamonte, 412 U. S. 218, 250 (1973). This case is even more inappropriate for federal collateral review of a state prisoner’s Fourth Amendment claim. The prisoner here, with advice of counsel, pleaded guilty in open court. He does not question the voluntariness of his plea nor does he assert innocence. Rather, he argues that his conviction is reviewable in federal habeas corpus because of an uncommon New York statute which allows appeal from an adverse suppression ruling notwithstanding the guilty plea.

Yet the Court today holds that respondent is entitled to seek federal habeas corpus relief. This ruling distorts beyond recognition the writ of habeas corpus. The historic and honored purpose of habeas corpus, and indeed its only justification, is to provide the added assurance to a free society that no innocent person will suffer an unconstitutional deprivation of liberty. The great writ was not designed as a means for freeing persons who have voluntarily confessed guilt under procedures comporting with due process of law.

Apart from my views as to the inappropriateness of federal habeas corpus review of Fourth Amendment claims duly adjudicated by state courts, Bustamonte, supra, I also agree with Mr. Justice White’s dissent, ante, p. 294. As federal law is invoked by respondent, his guilty plea is determinative under Tollett v. Henderson, 411 U.S. 258 (1973).

       Section 813-c was directed to the right to appeal an adverse ruling on a claim of an unlawful search and seizure after a plea of guilty. N. Y. Code Crim. Proc. § 813-g (recodified as N. Y. Crim. Proc. Law §§ 710.20,(3), 710.70 (2)), permitted similar appeals from denials of motions to suppress allegedly coerced confessions. See McMann v. Richardson, 397 U. S. 759, 766 n. 11. New York now also provides by statute for post-guihy plea appeals from denials of motions to suppress identification testimony claimed to be tainted by improper pretrial identifications. N. Y. Crim. Proc. Law §§710.20 (5), 710.70 (2).

       The District Court initially dismissed the petition because New-some, who had been released on bail pending final disposition of his case, was not "in custody” as required by 28 U. S. C. §2241. Newsome appealed the dismissal, and, in light of this Court's holding on the custody question in Hensley v. Municipal Court, 411 U. S. 345, the Court of Appeals for the Second Circuit remanded the case to the District Court for a decision on the merits.

       California, like New York, permits a defendant to appeal specified adverse pretrial rulings even though he subsequently pleads guilty. Cal. Penal Code § 1538.5 (m). Unlike the Court of Appeals for the Second Circuit, however, the Court of Appeals for the Ninth Circuit by a divided vote held that such a defendant may not pursue his constitutional claim on a federal habeas corpus petition. Mann v. Smith, 488 F. 2d 245, 247.

       Certiorari was granted limited to Question 1 in Attorney General Lefkowitz’ petition: “Does a state defendant’s plea of guilty waive federal habeas corpus review of his conviction, even though under state law he has been permitted review in the state appellate courts of the denial of his motion, on constitutional grounds, to suppress the evidence that would have been offered against him had there been a trial?” 417 U. S. 967.

       Since the guilty pleas in McMann v. Richardson were entered prior to the effective date of New York’s statutory scheme permitting a defendant pleading guilty to challenge on appeal the admissibility of evidence allegedly seized improperly or of an allegedly coerced confession, the Court in McMann expressly reserved ruling on the question presented by the judgment now before us. 397 U. S., at 770 n. 13. That express reservation unquestionably belies the argument advanced in the dissenting opinion of MR. Justice White, post, at 297-298, that the question before us was answered in Parker v. North Carolina, 397 U. S. 790, a case decided together with McMann.

       The petitioner concedes that this review ultimately includes the certiorari or appellate jurisdiction of this Court. Indeed, in Sibron v. New York, 392 U. S. 40, we reversed a state-court conviction on the ground that the appellant’s motion to suppress evidence should have been granted, notwithstanding the fact that the appellant had pleaded guilty and pursued his appeal under § 813-c. See id., at 45 n. 2. If Newsome’s guilty plea is not a sufficient “break in the chain of events [that] preceded it” to prevent review of his constitutional claims in this Court, then a fortiori the plea cannot rationally foreclose resort to federal habeas relief. For even when state procedural grounds are adequate to bar direct review of a conviction in this Court, federal habeas corpus relief is nonetheless available to litigate the defendant’s constitutional claims unless there has been a deliberate bypass of the state procedures. See Fay v. Noia, 372 U. S. 391, 428-431.

       New York could easily have provided that, rather than pleading “guilty,” a defendant who intends to appeal his pretrial claim of an involuntary confession or an unlawful seizure but has no desire to impose upon the State the burden of going to trial should plead “not guilty” and at the same time stipulate to all the evidence the State can introduce to prove his guilt. Upon the inevitable entry of a judgment of conviction based on the stipulation, the defendant would then be able to pursue his state appellate remedies. And, presumably, because there would then be no “solemn admission of guilt,” all would concede that the defendant would not be foreclosed from pursuing those constitutional claims in a federal habeas corpus proceeding. But the only difference between such a procedure and the one New York has chosen is that the plea entered is labeled a plea of “not guilty” rather than “guilty” and there is a stipulation by the defendant as to the facts the State would prove demonstrating his guilt rather than a recitation by the defendant in court. The availability of federal habeas corpus depends upon functional reality, not upon an infatuation with labels. See Fay v. Noia, supra.

       Newsome is “in custody” within the meaning of 28 U. S. C. § 2241. See n. 2, supra. His petition for a writ of habeas corpus alleged that this custody was in violation of the laws of the United States. §2241 (c)(3). And he has satisfied the exhaustion requirement of 28 U. S. C. §2254 by presenting his federal claims to the state courts on direct appeal. See Francisco v. Gathright, 419 U. S. 59.

       In Fay v. Noia, supra, the Court held that a federal habeas judge may deny relief to an applicant who has deliberately bypassed the orderly state-court procedures for reviewing his constitutional claim. 372 U. S., at 438. But the Court also held that if the state courts have entertained the federal constitutional claims on the merits in a subsequent proceeding, notwithstanding the deliberate bypass, the federal courts have no discretion to deny the applicant habeas relief to which he is otherwise entitled. Id., at 439. It would seem to follow necessarily that when there is no bypass of state appellate procedures, deliberate or otherwise, and the state courts entertained the federal claims on the merits, a federal habeas corpus court must also determine the merits of the applicant’s claim.

       At the time Newsome pleaded guilty the Court of Appeals for the Second Circuit had repeatedly held that a New York defendant who has utilized § 813-c in the state courts may pursue his constitutional claim on a federal habeas corpus petition. E. g., United States ex rel. Rogers v. Warden, 381 F. 2d 209; United States ex rel. Molloy v. Follette, 391 F. 2d 231.

       The Uniform Rules of Criminal Procedure would create an even broader right of appeal than is currently provided for in New York, permitting post-guilty-plea appeal of any order denying a pretrial motion which, if granted, would be dispositive of the case. Uniform Rule Crim. Proc. 444 (d).

       Indeed, not only does the United States Constitution grant no such entitlement, but the federal courts have for the most part refused to create such an entitlement in the exercise of their supervisory powers over the administration of criminal justice in the federal system. See United, States v. Sepe, 474 F. 2d 784 (CA5), aff’d en banc, 486 F. 2d 1044 (1973); United States v. Cox, 464 F. 2d 937 (CA6 1972); United States v. Mizell, 488 F. 2d 97 (CA5 1973), and cases there cited. But see United States v. Doyle, 348 F. 2d 715, 719 (CA2), cert. denied, 382 U. S. 843 (1965).

        McMann was a case involving a coerced-confession claim in which the plea was entered before Jackson v. Denno, 378 U. S. 368 (1964), and therefore at a time when the defendant believed the jury would hear his confession regardless. Tollett involved a guilty plea entered in ignorance of the facts underlying the defendant’s later attack on the grand jury.

       It is true that Fourth Amendment claims are never attacks on the accuracy of the finding of factual guilt, Linkletter v. Walker, 381 U. S. 618 (1965). Under our legal system, reversal of a conviction on Fourth Amendment grounds is perfectly consistent with a recognition that the defendant is, in fact, guilty. Thus, it may be argued that, unlike some other claims, Fourth Amendment claims are not undercut by a guilty plea in which guilt is solemnly admitted. The short answer to this argument is that it applies as well in the case of States which do not permit appeals from guilty pleas as in the case of those which do, and the argument has therefore already been rejected. Tollett v. Henderson, 411 U. S. 258 (1973); Brady v. United States, 397 U. S. 742 (1970); McMann v. Richardson, 397 U. S. 759 (1970); Parker v. North Carolina, 397 U. S. 790 (1970); United States v. Sepe, supra. More to the point, the deterrent purpose of the exclusionary rule should be furthered at the lowest possible cost to society in terms of freeing the guilty. By precluding defendants who plead guilty from litigating Fourth Amendment issues, we do not seriously detract from the deterrent purpose of the rule (a policeman about to improperly invade someone’s privacy can hardly rely upon the erroneous pretrial denial of a suppression motion by a trial judge and the defendant’s mistaken decision to plead guilty) and we avoid unnecessarily freeing the guilty.

       We did hold that a plea entered upon advice of counsel with regard to the admissibility of the confession, which advice was not “within the range of competence required of attorneys representing defendants in criminal cases,” 397 U. S., at 797-798, would warrant vacation of the plea on Sixth Amendment grounds.

         Sibron v. New York, 392 U. S. 40 (1968), in which we heard a Fourth Amendment claim on direct appeal after a guilty plea, was decided before the Court created the relevant constitutional rule in the Brady trilogy; and in Sibron the Court never addressed the question whether the Federal Constitution entitled the defendant to set aside his guilty plea upon establishing the antecedent Fourth Amendment violation.

       The majority argues that Newsome would have had a right to set aside his conviction on the basis of a Fourth Amendment claim if he had pleaded not guilty and permitted his attorney to stipulate that, if called, certain government witnesses would testify to certain facts, and introduce certain exhibits, among them the allegedly illegally seized evidence; and that, therefore, he should be permitted to set aside his functionally equivalent plea of guilty on the basis of the same Fourth Amendment claim. The premise is correct; the conclusion is not. In the first place, if the conclusion were correct, it should apply equally to States which do not permit appeals from guilty pleas. As our decisions in the Brady trilogy and Tollett establish, however, guilty pleas in those States are not infirm on the basis of antecedent constitutional violations, even though convictions in uncontested trials are. The majority offers no reason why this distinction should be ignored for federal purposes just because New York ignores it for state purposes. Moreover, a conviction based upon the defendant’s solemn admission of factual guilt is not the functional equivalent of a conviction on uncontested evidence. In the latter case, the conviction is not based on the defendant’s admission but on the evidence: the trial judge may always acquit, if unpersuaded, and an appellate court may find the illegally seized evidence not to have contributed to the verdict. See discussion of the differences for appeal purposes between a plea of guilty and a stipulation to evidence in United States v. Mizell, 488 F. 2d, at 99-101 (guilty plea not appealable), and United States v. Mendoza, 491 F. 2d 534, 536-538 (CA5 1974) (conviction on stipulated evidence appealable). See also United States v. Cox, 464 F. 2d, at 944-945.

       Because of the possibility that prior Second Circuit law, e. g., United States ex rel. Rogers v. Warden, 381 F. 2d 209 (1967), and United States ex rel. Molloy v. Follette, 391 F. 2d 231 (1968), affirmatively misled respondent’s lawyer into believing that federal law does permit collateral relitigation of the antecedent Fourth Amendment violation after a New York guilty plea, the best course would have been to permit all those, including Newsome, who pleaded guilty before the date of this decision in reliance on Second Circuit law to replead. United States v. Mizell, supra, at 101. Cf. Santobello v. New York, 404 U. S. 257 (1971).