source: Caselaw Access Project

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

license: Public Domain

text:
    PFIZER INC. et al. v. GOVERNMENT OF INDIA et al.
    No. 76-749.
    Argued November 1, 1977
    Decided January 11, 1978

      Samuel W. Murphy, Jr., argued the cause for petitioners. With him on the briefs were Kenneth N. Hart, William J. T. Brown, Peter Dorsey, Allen F. Maulsby, Gordon G. Busdicker, Julian O. von Kalinowski, Joe A. Walters, John H. Morrison, John P. Lynch, Merrell E. Clark, Jr., and Roberts B. Owen.

      Douglas V. Rigler argued the cause for respondents. With him on the brief were Julius Kaplan, James W. Schroeder, Harold C. Petrowitz, Ralph E. Becker, Joseph B. Friedman, and James H. Mann

      Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Acting Assistant Attorney General Shenefield, Barry Grossman, and Frederic Freilicher for the United States; and by Paul C. Sprenger and Eric L. Olson for the Federal Republic of Germany.

   Mr. Justice Stewart

delivered the opinion of the Court.

In this case we are asked to decide whether a foreign nation is entitled to sue in our courts for treble damages under the antitrust laws. The respondents are the Government of India, the Imperial Government of Iran, and the Republic of the Philippines. They brought separate actions in Federal District Courts against the petitioners, six pharmaceutical manufacturing companies. The actions were later consolidated for pretrial purposes in the United States District Court for the District of Minnesota. The complaints alleged that the petitioners had conspired to restrain and monopolize interstate and foreign trade in the manufacture, distribution, and sale of broad spectrum antibiotics, in violation of §§ 1 and 2 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 16 U. S. C. §§ 1, 2. Among the practices the petitioners allegedly engaged in were price fixing, market division, and fraud upon the United States Patent Office. India and Iran each alleged that it was a “sovereign foreign state with whom the United States of America maintains diplomatic relations”; the Philippines alleged that it was a “sovereign and independent government.” Each respondent claimed that as a purchaser of antibiotics it had been damaged in its business or property by the alleged antitrust violations and sought treble damages under § 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15, on its own behalf and on behalf of several classes of foreign purchasers of antibiotics.

The petitioners asserted as an affirmative defense to the complaints that the respondents as foreign nations were not “persons” entitled to sue for treble damages under § 4. In response to pretrial motions the District Court held that the respondents were “persons” and refused to dismiss the actions. The trial court certified the question for appeal pursuant to 28 U. S. C. § 1292 (b). The Court of Appeals for the Eighth Circuit affirmed, 550 P. 2d 396, and adhered to its decision upon rehearing en banc. Id., at 400. We granted certiorari to resolve an important and novel question in the administration of the antitrust laws. 430 U. S. 964.

I

As the Court of Appeals observed, this case “turns on the interpretation of the statute.” 550 F. 2d, at 397. A treble-damages remedy for persons injured by antitrust violations was first provided in § 7 of the Sherman Act, and was re-enacted in 1914 without substantial change as § 4 of the Clayton Act. Section 4 provides:

“[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”

Thus, whether a foreign nation is entitled to sue for treble damages depends upon whether it is a “person” as that word is used in § 4. There is no statutory provision or legislative history that provides a clear answer; it seems apparent that the question was never considered at the time the Sherman and Clayton Acts were enacted.

The Court has previously noted the broad scope of the remedies provided by the antitrust laws. “The Act is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated.” Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 236; cf. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 138-139. And the legislative history of the Sherman Act demonstrates that Congress used the phrase “any person” intending it to have its naturally broad and inclusive meaning. There was no mention in the floor debates of any more restrictive definition. Indeed, during the course of those debates the word “person” was used interchangeably with other terms even broader in connotation. For example, Senator Sherman said that the treble-damages remedy was being given to “any party,” and Senator Edmunds, one of the principal draftsmen of the final bill, said that it established “the right of anybody to sue who chooses to sue.” 21 Cong. Rec. 2569, 3148 (1890).

In light of the law’s expansive remedial purpose, the Court has not taken a technical or semantic approach in determining who is a “person” entitled to sue for treble damages. Instead, it has said that “[t]he purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate” the proper scope of the law. United States v. Cooper Corp., 312 U. S. 600, 605.

II

The respondents in this case possess two attributes that could arguably exclude them from the scope of the sweeping phrase “any person.” They are foreign, and they are sovereign nations.

A

As to the first of these attributes, the petitioners argue that, in light of statements made during the debates on the Sherman Act and the general protectionist and chauvinistic attitude evidenced by the same Congress in debating contemporaneous tariff bills, it should be inferred that the Act was intended to protect only American consumers. Yet it is clear that a foreign corporation is entitled to sue for treble damages, since the definition of “person” contained in the Sherman and Clayton Acts explicitly includes “corporations and associations existing under or authorized by . . . the laws of any foreign country.” See n. 9, supra. Moreover, the antitrust laws extend to trade “with foreign nations” as well as among the several States of the Union. 15 U. S. C. §§ 1, 2. Clearly, therefore, Congress did not intend to make the treble-damages remedy available only to consumers in our own country.

In addition, the petitioners’ argument confuses the ultimate purposes of the antitrust laws with the question of who can invoke their remedies. The fact that Congress’ foremost concern in passing the antitrust laws was the protection of Americans does not mean that it intended to deny foreigners a remedy when they are injured by antitrust violations. Treble-damages suits by foreigners who have been victimized by antitrust violations clearly may contribute to the protection of American consumers.

The Court has noted that § 4 has two purposes: to deter violators and deprive them of “ 'the fruits of their illegality,’ ” and “to compensate victims of antitrust violations for their injuries.” Illinois Brick Co. v. Illinois, 431 U. S. 720, 746; Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 485-486; Perma Life Mufflers, Inc. v. International Parts Corp., supra, at 139. To deny a foreign plaintiff injured by an antitrust violation the right to sue would defeat these purposes. It would permit a price fixer or a monopolist to escape full liability for his illegal actions and would deny compensation to certain of his victims, merely because he happens to deal with foreign customers.

Moreover, an exclusion of all foreign plaintiffs would lessen the deterrent effect of treble damages. The conspiracy alleged by the respondents in this case operated domestically as well as internationally. If foreign plaintiffs were not permitted to seek a remedy for their antitrust injuries, persons doing business both in this country and abroad might be tempted to enter into anticompetitive conspiracies affecting American consumers in the expectation that the illegal profits they could safely extort abroad would offset any liability to plaintiffs at home. If, on the other hand, potential antitrust violators must take into account the full costs of their conduct, American consumers are benefited by the maximum deterrent effect of treble damages upon all potential violators.

B

The second distinguishing characteristic of these respondents is that they are sovereign nations. The petitioners contend that the word “person” was clearly understood by Congress when it passed the Sherman Act to exclude sovereign governments. The word “person,” however, is not a term of art with a fixed meaning wherever it is used, nor was it in 1890 when the Sherman. Act was passed. Cf. Towne v. Eisner, 245 U. S. 418, 425. Indeed, this Court has expressly noted that use of the word “person” in the Sherman and Clayton Acts did not create a “hard and fast rule of exclusion” of governmental bodies. United States v. Cooper Corp., 312 U. S., at 604-605.

On the two previous occasions that the Court has considered whether a sovereign government is a “person” under the antitrust laws, the mechanical rule urged by the petitioners has been rejected. In United States v. Cooper Corp., the United States sought to maintain a treble-damages action under § 7 of the Sherman Act for injury to its business or property. The Court considered the question whether the United States was a “person” entitled to sue for treble damages as one to be decided not “by a strict construction of the words of the Act, nor by the application of artificial canons of construction,” but by analyzing the language of the statute “in the light, not only of the policy intended to be served by the enactment, but, as well, by all other available aids to construction.” Id., at 605. The Court noted that the Sherman Act provides several separate and distinct remedies: criminal prosecutions, injunctions, and seizure of property by the United States on the one hand, and suits for treble damages “granted to redress private injury” on the other. Id., at 607-608. Statements made during the congressional debates on the Sherman and Clayton Acts provided further evidence that Congress affirmatively intended to exclude the United States from the treble-damages remedy. Id., at 611-612. Thus, the Court found that the United - States was not a “person” entitled to bring suit for treble damages.

In Georgia v. Evans, 316 U. S. 159, decided the very next Term, the question was whether Georgia was entitled to sue for treble damages under § 7 of the Sherman Act. The Court of Appeals, believing that the Cooper case controlled, had held that a State, like the Federal Government, was not a “person.” This Court reversed, noting that Cooper did not hold “that the word 'person/ abstractly considered, could not include a governmental body.” 316 U. S., at 161. As in Cooper, the Court did not rest its decision upon a bare analysis of the word “person,” but relied instead upon the entire statutory context to hold that Georgia was entitled to sue. Unlike the United States, which “had chosen for itself three potent weapons for enforcing the Act,” 316 U. S., at 161, a State had been given no other remedies to enforce the prohibitions of the law. To deprive it also of a suit for damages “would deny all redress to a State, when mulcted by a violator of the Sherman Law, merely because it is a State.” Id., at 162-163. Although the legislative history of the Sherman Act did not indicate that Congress ever considered whether a State would be entitled to sue, the Court found no reason to believe that Congress had intended to deprive a State of the remedy made available to all other victims of antitrust violations.

It is clear that in Georgia, v. Evans the Court rejected the proposition that the word “person” as used in the antitrust laws excludes all sovereign states. And the reasoning of that case leads to the conclusion that a foreign nation, like a domestic State, is entitled to pursue the remedy of treble damages when it has been injured in its business or property by antitrust violations. When a foreign nation enters our commercial markets as a purchaser of goods or services, it can be victimized by anticompetitive practices just as surely as a private person or a domestic State. The antitrust laws provide no alternative remedies for foreign nations as they do for the United States. The words of Georgia v. Evans are thus equally applicable here:

“We can perceive no reason for believing that Congress wanted to deprive a [foreign nation], as purchaser of commodities shipped in [international] commerce, of the civil remedy of treble damages which is available to other purchasers who suffer through violation of the Act. . . . Nothing in the Act, its history, or its policy, could justify so restrictive a construction of the word 'person' in § 7 ... . Such a construction would deny all redress to a [foreign nation], when mulcted by a violator of the Sherman Law, merely because it is a [foreign nation].” 316 U. S., at 162-163.

Ill

The result we reach does not involve any novel concept of the jurisdiction of the federal courts. This Court has long recognized the rule that a foreign nation is generally entitled to prosecute any civil claim in the courts of the United States upon the same basis as a domestic corporation or individual might do. “To deny him this privilege would manifest a want of comity and friendly feeling.” The Sapphire, 11 Wall. 164, 167; Monaco v. Mississippi, 292 U. S. 313, 323 n. 2; Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 408-409; see U. S. Const., Art. III, § 2, cl. 1. To allow a foreign sovereign to sue in our courts for treble damages to the same extent as any other person injured by air antitrust violation is thus no more than a specific application of a long-settled general rule. To exclude foreign nations from the protections of our antitrust laws would, on the other hand, create a conspicuous exception to this rule, air exception that could not be justified in the absence of clear legislative intent.

Finally, the result we reach does not require the Judiciary in any way to interfere in sensitive matters of foreign policy. It has long been established that only governments recognized by the United States and at peace with us are entitled to access to our courts, and that it is within the exclusive power of the Executive Branch to determine which nations are entitled to sue. Jones v. United States, 137 U. S. 202, 212; Guaranty Trust Co. v. United States, 304 U. S. 126, 137-138; Banco Nacional de Cuba v. Sabbatino, supra, at 408-412. Nothing we decide today qualifies this established rule of complete judicial deference to the Executive Branch.

We hold today only that a foreign nation otherwise entitled to sue in our courts is entitled to sue for treble damages under the antitrust laws to the same extent as any other plaintiff. Neither the fact that the respondents are foreign nor the fact that they are sovereign is reason to deny them the remedy of treble damages Congress afforded to “any person” victimized by violations of the antitrust laws.

Accordingly, the judgment of the Court of Appeals is

Affirmed.

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

Mr. Chief Justice Burger,

with whom Mr. Justice Powell and Mr. Justice Rehnquist join,

dissenting.

The Court today holds that foreign nations are entitled to bring treble-damages actions in American courts against American suppliers for alleged violations of the antitrust laws; the Court reaches this extraordinary result by holding that for purposes of § 4 of the Clayton Act, foreign sovereigns are “persons,” while conceding paradoxically that the question “was never considered at the time the Sherman and Clayton Acts were enacted.” Ante, at 312.

I dissent from this undisguised exercise of legislative power, since I find the result plainly at odds not only with the language of the statute but also with its legislative history and precedents of this Court. The resolution of the delicate and important policy issue of giving more than 150 foreign countries the benefits and remedies enacted to protect American consumers should be left to the Congress and the Executive. Congressional silence over a period of almost a century provides no license for the Court to make this sensitive political decision vastly expanding the scope of the statute Congress enacted.

A

“The starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring). The relevant provisions here are § 1 of the Clayton Act in which the word “person” is defined, and § 4 in which the treble-damages remedy is conferred on those falling within the precisely enumerated categories. Section 1 provides, in relevant part:

“The word ‘person’ or ‘persons’ wherever used in this Act shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country.”

Section 4 then incorporates this definition by providing:

“That any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”

Even on the most expansive reading, these two sections provide not the slightest indication that Congress intended to allow foreign nations to sue Americans for treble damages under our antitrust laws. The very fact that foreign sovereigns were not included within the definition of “person” despite the explicit reference to corporations and associations existing under the “laws of any foreign country” in the same definition ought to be dispositive under established doctrine governing interpretation of statutes. I therefore see no escape from the conclusion that the omission by Congress of foreign nations was deliberate.

The inclusion of foreign corporations within the statutory definition in no sense argues for a different characterization of Congress’ intent. At the time of the passage of both the Sherman and Clayton Acts, foreign sovereigns, even when acting in their commercial capacities, were immune from suits in the courts of this country under the doctrine of sovereign immunity. See The Schooner Exchange v. McFaddon, 7 Cranch 116 (1812); Ex parte Peru, 318 U. S. 578 (1943); Mexico v. Huffman, 324 U. S. 30 (1945). Foreign corporations, of course, had no such immunity. See, e. g., Shaw v. Quincy Mining Co., 145 U. S. 444, 453 (1892); In re Hohorst, 150 U. S. 653, 662-663 (1893). Given that “person” as used in the Clayton and Sherman Acts refers to both antitrust plaintiffs and defendants, see United States v. Cooper Corp., 312 U. S. 600, 606 (1941), the decision of Congress to include foreign corporations while omitting foreign sovereigns from the definition most likely reflects this differential susceptibility to suit rather than any intent to benefit foreign consumers or to enlist their help in enforcing our antitrust laws. It would be little short of preposterous to think that Congress in 1890 was concerned about giving such rights to foreign nations, even though it might well decide to do so now.

Respondents’ claim that this disparate treatment cannot be justified today when foreign states effectively control many large foreign corporations and when sovereign immunity has been limited by the Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, 90 Stat. 2891, is not an argument appropriately addressed to or considered by this Court. If revisions in the statute are required to take into account contemporary circumstances, that task is properly one for Congress particularly in light of the sensitive political nature and foreign policy implications of the question.

The Court’s reliance on the references to “foreign nations” in §§ 1 and 2 of the Sherman Act and § 1 of the Clayton Act to support an argument that Congress was specifically concerned with foreign commerce and foreign nations in 1890 when the disputed definition was enacted is similarly unavailing. As a threshold matter, congressional concern with the foreign commerce of the United States does not entail either a desire to protect foreign nations or a willingness to allow them to sue Americans for treble damages in our courts. The Webb-Pomerene Act, ch. 50, 40 Stat. 516, as amended, 15 U. S. C. § 61 et seg., passed within only a few years of the Clayton Act, indicates that such a concern may instead be served at the expense of foreign states and consumers.

In any event, the relevant language of §§ 1 and 2 of the Sherman Act, as subsequently incorporated in the Clayton Act, does not support respondents’ contention. The reference to “commerce . . . with foreign nations” appeared only in the final draft of the Act as reported by the Senate Judiciary Committee, and replaced language in the numerous earlier drafts of Senator Sherman to the following effect:

“That all arrangements, contracts, agreements, trusts, or combinations between persons or corporations made with a view or which tend to prevent full and free competition in the production, manufacture, or sale of articles of domestic growth or production, or of the sale of articles imported, into the United States, . . . are hereby declared to be against public policy, unlawful and void . . . 21 Cong. Rec. 2598 (1890) (first draft) (emphasis added).

The focus of this language on protecting domestic consumers from anticompetitive practices affecting the importation of goods into the United States could not be more clear, nor could the absence of any attention to affording comparable protection for foreign consumers of American exports. The language substituted by the Judiciary Committee — language tracking that appearing in the Commerce Clause — was chosen to mollify the objections of those Senators who felt the proposed statute exceeded Congress’ constitutional power to regulate commerce, see, e. g., id., at 2600, 3147 (remarks of Sen. George); id., at 2728 (remarks of Sen. Edmunds); id., at 3149 (remarks of Sen. Reagan); cf. Apex Hosiery Co. v. Leader, 310 U. S. 469, 495 (1940); Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 434-435 (1932); that language was not intended to work any substantive change in the focus or scope of the Act. See United States v. Wise, 370 U. S. 405, 420 (1962) (Harlan, J., concurring). To read this language as evidencing an intent to protect foreign nations or foreign consumers simply belies its lineage.

B

The legislative history of the treble-damages remedy gives no more support to the result reached by the Court than does the language of the statute. As five of the eight judges of the Court of Appeals concluded — and indeed as the majority here concedes, ante, at 312 — “Congress, in passing § 4 of the Clayton Act, 15 U. S. C. § 15, gave no consideration nor did it have any legislative intent whatsoever, concerning the question of whether foreign governments are ‘persons’ under the Act.” 550 F. 2d 396, 399 (Ross, J., concurring) (emphasis added). The conversion of this silence in 1890 into an affirmative intent in 1978 is indeed startling.

The failure of Congress even to consider the question of granting treble-damages remedies to foreign nations provides the clearest possible argument for leaving the question to the same political process that gave birth to the Sherman and Clayton Acts. To rely on the absence of any express congressional intent to exclude foreign nations from taking advantage of the treble-damages remedy is a remarkable innovation in statutory interpretation. It is a strange way to camouflage the unassailable conclusion that the legislative history offers no affirmative support for the result reached today. Further, as this Court observed just last Term, the legislative history of the treble-damages remedy which does exist “indicate [s] that it was conceived of primarily as a remedy for ‘[t]he people of the United States as individuals/ especially consumers.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 486 n. 10 (1977), quoting from 21 Cong. Rec. 1767-1768 (1890) (remarks of Sen. George). What we so recently saw as primarily a remedy for American consumers is now extended to all the nations of the world — a boon Congress might choose to grant but has not done so.

C

In the absence of any helpful language in the statute or any affirmative legislative history, the Court attempts to base its expansive reading of “person” on Mr. Justice Frankfurter’s decision in Georgia v. Evans, 316 U. S. 159 (1942), granting the State of Georgia and all other domestic States the right to sue for treble damages. I fail to see how that result dictates this one.

In Georgia v. Evans, Mr. Justice Frankfurter concluded that absent the right to sue for treble damages, our States would be left without any remedy against violators of the antitrust laws. The Court today analogizes the situation of foreign nations to that of the States in Evans, and finds the analogy dispositive. When viewed solely in terms of the remedies specifically provided by the antitrust laws, the plight of domestic States and foreign sovereigns may, in this limited respect, be roughly comparable. But the very limited scope of the inquiry in Evans precludes consideration of the manifold and patently obvious respects in which foreign nations and our own domestic States differ — cogent differences bearing on the question under consideration here, though obviously not at all on the Court’s inquiry in Evans.

First, the disparate treatment of foreign and domestic States is a legitimate source of concern only on the assumption that Congress in passing the Sherman Act intended — or even contemplated — that these two categories of political entities were so essentially alike that they were entitled to the same remedies against anticompetitive conduct. As I have already suggested, this assumption derives no support from either the statutory language or anything in the legislative history. Although our own States were also not the expressly intended beneficiaries of the Act, to deny them the treble-damages remedy would, as Mr. Justice Frankfurter perceived, have the unmistakable result of effectively denying surrogate protection to American citizens in whose behalf the State acts and for whose benefit the Sherman Act was enacted. Thus, while the result in Evans is a tolerable talcing of certain liberties with the literal language of the statute, the congruence of that result with Congress’ purpose can scarcely be doubted. This same logic, however, does not even remotely apply to the situation of foreign nations.

Second, it simply is not the case that absent a treble-damages remedy, foreign nations would be denied any effective means of redress against anticompetitive practices by American corporations. Unlike our own States, whose freedom of action in this regard is constrained by the Commerce and Supremacy Clauses, foreign sovereigns remain free to enact and enforce their own comprehensive antitrust statutes and to impose other more drastic sanctions on offending corporations. One need look no further than the laws of respondents India and the Philippines for evidence that such remedies are possessed by foreign nations. And indeed, amicus West Germany has demonstrated that such laws are not mere idle enactments. During the pendency of this action, it notified petitioner Pfizer that a proceeding under German antitrust law was being commenced involving some of the same allegations which are made in the complaint filed by respondents in their treble-damages actions in this country.

While problems of jurisdiction and discovery may render antitrust actions against foreign defendants somewhat more problematic than a suit against a corporation in its own country, the limited experience of the Common Market nations in applying their antitrust laws to foreign corporations suggests that such difficulties are certainly not insoluble and are likely exaggerated. See, e. g., Europemballage Corp. v. E. C. Commission, 12 Comm. Mkt. L. R. 199 (1973); Commercial Solvents Corp. v. E. C. Commission, 13 Comm. Mkt. L. R. 309 (1974). And, as the presently existing treaty between the United States and West Germany indicates, reciprocal agreements providing for cooperation in antitrust investigations undertaken by foreign nations are an effective means of mitigating the rigors of discovery in foreign jurisdictions. See Agreement Relating to Mutual Cooperation Regarding Restrictive Business Practices, entered into force Sept. 11, 1976. United States — Federal Republic of Germany, [1976] 27 U. S. T. 1956, T. I. A. S. No. 8291.

Third, it takes little imagination to realize the dramatic and very real differences in terms of coercive economic power and political interests which distinguish our own States from foreign sovereigns. The international price fixing, boycotts, and other current anticompetitive practices undertaken by some Middle Eastern nations are illustrative of the weapons in the arsenals of foreign nations which no domestic State could ever employ. Nor do our domestic States, in any meaningful sense, have the conflicting economic interests or antagonistic ideologies which characterize and enliven the relations among nation states.

Viewed in this light, it is clear that the decision to allow foreign sovereigns to seek treble damages from Americans and to rely on standards of competitive behavior in fixing liability which those- very same nations flout in their business relationships with this country is a decision dramatically different from the one Mr. Justice Frankfurter faced in Evans. To consider the result reached there as to Georgia determinative of the result here is to substitute a “hard and fast rule of inclusion” for the “hard and fast rule of exclusion” which Justices Frankfurter and Roberts eschewed in Evans and Cooper, respectively. Only the most mechanical reading of our prior precedent will justify such a result.

Further, the result reached by the Court today confronts us with the anomaly that while the United States Government cannot sue for treble damages under our antitrust laws, other nations are free to engage in the most flagrant kinds of combinations for price fixing, totally at odds with our antitrust concepts, and nevertheless are given the right by the Court to sue American suppliers in American courts for treble damages plus attorneys’ fees. It is no answer to say that the United States needs no civil treble-damages remedy since it has reserved for itself the power to pursue criminal remedies against American suppliers for antitrust violations. What that response overlooks is that our criminal antitrust remedies hardly compare with the infinite array of political and commercial weapons available to a foreign nation for use against the United States itself or against American producers and suppliers. This, again, underscores how completely the problem is a matter of policy to be resolved by the political branches without the intrusion of the Judiciary.

D

Finally, the Court's emphasis oil the deterrent effects of treble-damages actions by foreign sovereigns also will not withstand critical scrutiny. We acknowledged in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S., at 485-486, that while treble damages do play an important role in deterring wrongdoers, “the treble-damages provision ... is designed primarily as a remedy.” To allow foreign sovereigns who were clearly not the intended beneficiaries of this remedy to nevertheless invoke it reverses this priority of purposes, and does so solely on the basis of this Court’s uninformed speculation about some possible beneficial consequences to American consumers of this “maximum deterrent.” Ante, at 315. In areas of far less political delicacy, we have been unwilling to expand the scope of the right to sue under the antitrust laws without express congressional intent to do so. See, e. g., Hawaii v. Standard Oil Co., 405 U. S. 251, 264-265 (1972).

For these reasons I dissent from the Court’s intrusion into the legislative sphere.

Mr. Justice Powell,

dissenting.

I join The Chief Justice in his dissent, and add a word to emphasize my difficulty with the Court’s decision.

The issue is whether the antitrust laws of this country are to be made available for treble-damages suits against American businesses by the governments of other countries. The Court resolves this issue in favor of such governments by construing the word “person” in § 4 of the Clayton Act to include “foreign governments.” No one argues seriously that this was the intent of Congress in 1890 when the term “person” was included in the Act. Indeed, the Court acknowledges that this “question was never considered at the time the Sherman and Clayton Acts were enacted.” Ante, at 312.

Despite this conclusion as to the absence of any congressional consideration, the inviting possibility of treble damages is extended today by judicial action to the sovereign nations of the world. With minor exceptions, the United States recognizes the governments of all of these nations. We may assume that most of them have no equivalent of our antitrust laws and would be unlikely to afford reciprocal opportunities to the United States to sue and recover damages in their courts.

The Court has resolved a major policy question. As the Acting Solicitor General stated in his Memorandum for the United States as Amicus Curias, filed March 23, 1977:

“Whether foreign sovereigns are 'persons’ entitled to sue under Section 4 depends largely upon the general policy reflected in the statute, and the general policy of the United States opening its courts to foreign sovereigns.”

I had thought it was accepted doctrine that questions of “general policy” — especially with respect to foreign sovereigns and absent explicit legislative authority — are beyond the province of the Judicial Branch. If the statute truly reflected a general policy that dictated the inclusion of foreign sovereigns, the Court might be justified in reaching today’s result. In Georgia v. Evans, 316 U. S. 159 (1942), a clear policy to protect the States of the Union was reflected in the antitrust laws and in the legislative history. The Court could “perceive no reason for believing that Congress wanted to deprive a State, as purchaser of commodities shipped in interstate commerce, of the civil remedy of treble damages which is available to other purchasers who suffer through violation of the Act.” Id., at 162.

Unlike the majority, I do not believe the same can be said with respect to foreign sovereigns. See ante, at 318. It is not only the absence of specific congressional intent to include them. It is that the predicate for the Court's approach in Georgia v. Evans is not present in the case before us. The solicitude that we assume Congress has for the welfare of each of the United States, especially when the subject matter of legislation largely has been removed from the competence of the States and has been entrusted to the United States, cannot be assumed with respect to foreign nations. Putting it differently, it was not illogical for the Evans Court to include the States within the reach of § 4, but it is a quantum leap to include foreign governments.

A court, without the benefit of legislative hearings that would illuminate the policy considerations if the question were left to Congress, is not competent in my opinion to resolve this question in the best interest of our country. It is regrettable that the Court today finds it necessary to rush to this essentially legislative judgment.

       Similar actions were also brought by Spain, South Korea, West Germany, Colombia, Kuwait, and the Republic of Vietnam. Vietnam was a party to this case in the Court of Appeals and was named as a respondent in the petition for certiorari. Subsequent to the filing of the petition Vietnam’s complaint was dismissed by the District Court on the ground that the United States no longer recognized the Government of Vietnam; the dismissal was affirmed by the Court of Appeals. Republic of Vietnam v. Pfizer Inc., 556 F. 2d 892 (CA8). Vietnam has not participated as a party in this Court. Some of the other suits have been withdrawn and the rest are pending.

       The antibiotic antitrust litigation originated with a proceeding brought by the Federal Trade • Commission which resulted in an order requiring petitioners Pfizer and American Cyanamid to grant domestic applicants licenses under their patents for broad spectrum antibiotics. See Charles Pfizer & Co. v. FTC, 401 F. 2d 574 (CA6). Criminal antitrust proceedings against petitioners Pfizer, American Cyanamid, and Bristol-Myers were eventually dismissed. United States v. Chas. Pfizer & Co., 367 F. Supp. 91 (SDNY); see also United States v. Chas. Pfizer & Co., 426 F. 2d 32 (CA2), modified, 437 F. 2d 957, aff’d by an equally divided Court, 404 U. S. 548. Most of the large number of civil suits have been settled. See West Virginia v. Chas. Pfizer & Co., 314 F. Supp. 710 (SDNY), aff’d, 440 F. 2d 1079 (CA2).

       Respondents India and Iran also sued in a parens patriae capacity; those claims were dismissed in a separate appeal and are not at issue here. Pfizer Inc. v. Lord, 522 F. 2d 612, 615-620 (CA8).

       Petitioners moved to dismiss the suits brought by India and Iran. The Philippines moved to strike petitioners’ affirmative defense.

       The District Court relied upon an earlier decision denying a motion to dismiss a related suit brought by the State of Kuwait, see n. 1, supra. In re Antibiotic Antitrust Actions, 333 F. Supp. 315 (SDNY). An appeal was taken from that decision but was dismissed by stipulation of the parties. Thus, the Court of Appeals’ decision in the present case marked the first appellate consideration of the issue.

       A petition for mandamus had previously been denied. Pfizer Inc. v. Lord, supra.

       Two judges dissented, believing that Congress, in passing the Sherman and Clayton Acts, did not intend to include foreign sovereigns within the scope of the term “person.” 550 F. 2d, at 400. Three judges in the majority also joined a concurring opinion noting the absence of controlling legislative history and urging congressional action. Id., at 399-400.

       Section 7 of the Sherman Act was repealed in 1955 as redundant. § 3, 69 Stat. 283; see S. Rep. No. 619, 84th Cong., 1st Sess., 2 (1955).

       The Sherman and Clayton Acts each provide that the word "person” “shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country.”15 U. S. C. §§ 7, 12.
      It is apparent that this definition is inclusive rather than exclusive, and does not by itself imply that a foreign government, any more than a natural person, falls without its bounds. Cf. Helvering v. Morgan’s Inc., 293 U. S. 121, 125 n. 1; United States v. New York Telephone Co., ante, at 169 n. 15.

       See Apex Hosiery Co. v. Leader, 310 U. S. 469, 489 n. 10.

       Tee Chief Justice’s dissent seems to contend that the Sherman Act’s reference to commerce with foreign nations was intended only to reach conspiracies affecting goods imported into this country. Post, at 323-324. But the scope of congressional power over foreign commerce has never been so limited, and it is established that the antitrust laws apply to. exports as well. See, e. g., Timken Roller Bearing Co. v. United States, 341 U. S. 593, 599; United States v. Minnesota Mining & Mfg. Co., 92 F. Supp. 947 (Mass.).

       Moreover, in the Webb-Pomerene Act, ch. 50, 40 Stat. 516, as amended, 15 U. S. C. § 61 et seq., Congress has provided a narrow and carefully limited exception for export activity that would otherwise violate the antitrust laws. See United States v. Concentrated Phosphate Export Assn., 393 U. S. 199. A judicial rule excluding all non-Americans as plaintiffs in treble-damages cases would hardly be consistent, with the precisely limited exception Congress has established to the general applicability of the antitrust laws to foreign commerce.

       See n. 2, swpra.

       It has been suggested that depriving foreign plaintiffs of a treble-damages remedy and thus encouraging illegal conspiracies would affect American consumers in other ways as well: by raising worldwide prices and thus contributing to American inflation; by discouraging foreign entrants who might undercut monopoly prices in this country; and by allowing violators to accumulate a “war chest” of monopoly profits to police domestic cartels and defend them from legal attacks. Velvel, Antitrust Suits by Foreign Nations, 25 Cath. U. L. Rev. 1, 7-8 (1975).

       The case relied on by petitioners as establishing a general rule, United States v. Fox, 94 U. S. 315, merely adopted New York’s construction of its Statute of Wills, as a matter of state law. Id., at 320. Even in New York the word “person” did not have a settled meaning. Compare In re Will of Fox, 52 N. Y. 530, aff’d sub nom. United States v. Fox, supra, with Republic of Honduras v. Soto, 112 N. Y. 310, 19 N. E. 845. In fact, contemporaneous cases generally held that the sovereign was entitled to have the benefit of a statute extending a right to “persons.” See, e. g., Stanley v. Schwalby, 147 U. S. 508, 514-517; Dollar Savings Bank v. United States, 19 Wall. 227, 239; Cotton v. United States, 11 How. 229, 231.
      Cases construing federal statutes of the same era also indicate that the use of the term “person” did not invariably imply an intent to exclude governmental bodies. See, e. g., Ohio v. Helvering, 292 U. S. 360 (“person” in §§ 3140 and 3244 of the Revised Statutes of 1878 includes a State); California v. United States, 320 U. S. 577, 585-586 (“person” in the Shipping Act, 1916, 46 U. S. C. § 801 et seq., includes both a State and a city); Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390, 396 (“person” in the Sherman Act includes a city).

       Even earlier, in Chattanooga Foundry, supra, at 396, the Court held without extended discussion that a city was entitled to sue for treble damages.

       In 1955 Congress amended the Clayton Act to allow the United States to sue for single damages when it is injured in its business or property. Ch. 283, § 1, 69 Stat. 282, 15 U. S. C. § 15a.

       While The Chief Justice’s dissent says there are “weapons in the arsenals of foreign nations” sufficient to enable them to counter anticompet-itive conduct, such as cartels or boycotts, post, at 327-328, such a political remedy is hardly available to a foreign nation faced with monopolistic control of the supply of medicines needed for the health and safety of its people.

       Congress has explicitly conferred jurisdiction upon the federal courts to entertain such suits:
      “The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between—
      “(4) a foreign state ... as plaintiff and citizens of a State or of different States.” 28 U. S. C. § 1332 (a) (4) (1976 ed.).
      Among the actions foreign sovereign governments were entitled to maintain at the time of the passage of the Sherman and Clayton Acts were suits for common-law business torts, such as unfair competition, similar in general nature to antitrust claims. See French Republic v. Saratoga Vichy Spring Co., 191 U. S. 427 (1903); La Republique Francaise v. Schultz, 94 F. 500 (SDNY 1899).

       In a letter that was presented to the Court of Appeals when it reconsidered this case en banc, the Legal Adviser of the Department of State advised “that the Department of State would not anticipate any foreign policy problems if . . . foreign governments [were held to be] 'persons’ within the meaning of Clayton Act § 4.” A copy of this letter is contained in the Memorandum for the United States as Amicus Curiae in opposition to the petition for a writ of certiorari filed in this Court.

       Cf. n. 1, supra.

       The Webb-Pomerene Act exempts certain actions of export associations from the antitrust laws, but the exemption applies only if the association’s actions do not restrain trade or affect the price of exported products within the United States and do not restrain the export trade of any domestic competitor of the association. 15 U. S. C. § 62. Although the Act was subsequently regarded as carving out an exemption from the antitrust laws, the legislative history indicates considerable question at the time whether the conduct of exporters meeting the conditions specified in the Act would have violated the antitrust laws even without the putative exemption. See H. R. Rep. No. 50, 65th Cong., 1st Sess., 2 (1917).

       The equivalent language of subsequent drafts can be found at 21 Cong. Rec. 2598-2600 (1890).

       The Court adverts to a letter from the Legal Adviser of the State Department to the Court of Appeals advising that no foreign policy problems were anticipated from a decision holding foreign governments to be persons within the meaning of § 4 of the Clayton Act. The significance of this communication escapes me. Nothing in the Constitution suggests legislative power may be exercised jointly by the courts and the Department of State.

       At present there are 162 sovereign nations.

       The Court quotes a letter to the effect that “the Department of State would not anticipate any foreign policy problems” if § 4 were held to embrace suits by foreign governments. Ante, at 319 n. 20 (emphasis supplied). But resolution of the issue here depends not only upon foreign policy considerations but also upon considerations relevant to the general welfare of the United States. The latter are quite beyond the concern of the Department of State and should be considered by the Legislative Branch. The international business conducted by American corporations has economic and social ramifications of great importance to our country.


author: Per Curiam. Mr. Justice Rehnquist,

text:
    SMITH v. DIGMON, WARDEN, et al.
    No. 76-6799.
    Decided January 16, 1978
   Per Curiam.

Petitioner sought habeas corpus relief in the United States District Court for the Northern District of Alabama from his sentence following a judgment of conviction for rape in the Circuit Court of Calhoun County, Ala. Among the allegations of constitutional error in his trial — presented to the District Court in petitioner’s traverse to the State’s response to his petition — petitioner claimed that the in-court identification of him by the prosecuting witness was the product of an out-of-court identification at an impermissibly suggestive photographic array and a later uncounseled lineup. The District Court refused to entertain this claim on the ground, recited in its opinion, that “this issue has never been presented to any state court.” No. 77-A-0029-E (mem. filed Feb. 11, 1977). This conclusion was premised upon the absence of any reference to the contention in the reported opinion of the Alabama Court of Criminal Appeals affirming the conviction. Smith v. State, 57 Ala. App. 164, 326 So. 2d 692 (1975). The District Court stated: “It is inconceivable to this Court that had Smith raised that issue [in the Alabama Court of Criminal Appeals] that [that court] would not have written to it.” The Court of Appeals for the Fifth Circuit denied petitioner’s pro se application for a certificate of probable cause and for leave to appeal in forma pauperis. No. 77-8141 (Apr. 20, 1977).

In his pro se petition for certiorari, petitioner asserted that “■[i]t is beyond doubt that State remedies have been exhausted.” Pet. for Cert. 3. This Court directed the filing here of the briefs submitted to the Alabama Court of Criminal Appeals. Petitioner’s brief to that court reveals that petitioner, citing decisions of this Court, did indeed submit the constitutional contention that the prosecuting witness’ in-court identification should have been excluded from evidence because that identification derived from an impermissibly suggestive pretrial photographic array and a later uncounseled lineup; moreover, the State Attorney General’s brief devoted two of its seven pages to argument answering the contention.

It is too obvious to merit extended discussion that whether the exhaustion requirement of 28 U. S. C. § 2254 (b) has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner’s brief in the state court, and, indeed, in this case, vigorously opposed in the State’s brief. It is equally obvious that a district court commits plain error in assuming that a habeas petitioner must have failed to raise in the state courts a meritorious claim that he is incarcerated in violation of the Constitution if the state appellate court’s opinion contains no reference to the claim.

The motion to proceed in forma pauperis, and the petition for certiorari are granted. The order of the Court of Appeals and the judgment of the District Court are reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.

So ordered.

Mr. Justice Rehnquist,

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

concurring in the result.

I am not at all certain that the petitioner properly raised before the Court of Appeals the error upon which we today reverse and remand. While petitioner filed a pro se application for probable cause and for leave to appeal in forma pau-peris with the Court of Appeals, as far as the record shows, he did not allege any particular error on the part of the District Court. Again as far as the record shows, petitioner failed to bring the District Court’s error to anyone’s attention until his petition for certiorari in this Court. The lower courts are better equipped and suited to resolve factual errors of the nature raised here and such errors should therefore be raised before them in "{he first instance. Indeed, we would seem limited to only those questions explicitly presented to the Court of Appeals.

However, because it is now clear that the District Court erred in concluding that the petitioner had not raised the in-court identification issue before the state courts, I defer to the Court’s necessarily implied conclusion that the question was presented to the Court of Appeals and concur in the result.

        Simmons v. United States, 390 U. S. 377 (1968); United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); Stovall v. Denno, 388 U. S. 293 (1967).

       Inexplicably, the Attorney General’s response to the petition for cer-tiorari, which squarely presénted the question whether habeas "was improperly denied,” made no mention whatever that his brief to the Alabama Court of Criminal Appeals had joined issue on the pretrial photographic array and lineup issues, and did not point out that the District Court erred in stating in its order that “this issue has never been presented to any state court.” Rather, the response argued only that petitioner had raised only two other issues in federal court neither of which was cognizable on habeas.


author: Mr. Justice White Me. Justice Stewart,

text:
    NATIONAL LABOR RELATIONS BOARD v. LOCAL UNION NO. 103, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS, AFL-CIO, et al.
    No. 76-719.
    Argued October 31, 1977
    Decided January 17, 1978

      Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Richard A. Allen, John 8. Irving, Carl L. Taylor, and Linda Sher.

      Sydney L. Berger argued the cause for respondents. With him on the brief was Charles L. Berger.

        J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae.

   Mr. Justice White

delivered the opinion of the Court.

Sections 8 (b) (7) and 8 (f) were added to the National Labor Relations Act in 1959. Section 8 (f), permitting so-called “prehire” agreements in the construction industry, provides that it shall not be an unfair labor practice to enter into such an agreement with a union that has not attained majority status prior to the execution of the agreement. Under § 8 (b) (7) (C), a union that is not the certified representative of the employees in the relevant unit commits an unfair labor practice if it pickets an employer with “an object” of “forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees” and if it does not within 30 days file a petition for an election under §9 (c). The National Labor .Relations Board (Board) held that it is an unfair labor practice within the meaning of § 8 (b) (7) (C) for an uncertified union not representing a majority of the employees to engage in extended picketing in an effort to enforce a prehire agreement with the employer. The issue here is whether this is a misapplication of the section, as the Court of Appeals held in this case.

I

Higdon Construction Co. and Local 103 of the International Association of Bridge, Structural &; Ornamental Iron Workers, AFL-CIO (hereinafter Local 103), had a history of collective bargaining dating back to 1968. A prehire agreement was reached by Local 103 and Higdon on July 31, 1973, obliging Higdon to abide by the terms of the multiemployer understanding between Local 103 and the Tri-State Iron Workers Employers Association, Inc. No union security clause provision was contained in the Local 103-Higdon agreement. At about the same time, Higdon Contracting Co. was.formed for the express purpose of carrying on construction work with nonunion labor. Local 103 picketed two projects subsequently undertaken by Higdon Contracting Co.,, in Kentucky and Indiana, with signs which read: "Higdon Construction Company is in violation of the agreement of the Iron Workers Local Number 103.” Picketing at one jobsite persisted for more than 30 days, into March 1974. Local 103 had never represented a majority of the employees at either site and, although it was free to do so, it did not petition for a representation election to determine the wishes of the employees at either location.

On March 6, 1974, Higdon Contracting Co. filed a charge with the Regional Director of the Board, alleging that Local 103 was violating § 8 (b) (7) of the Labor Act. The Administrative Law Judge found that Higdon Contracting Co. and Higdon Construction Co. were legally indistinct for purposes of the proceedings. In -an opinion issued August 23, 1974, he concluded that Local 103’s picketing did not constitute an unfair labor practice. Higdon had entered into a lawful § 8 (f) prehire contract with Local 103 by which it promised to abide by the multiemployer standard. The picketing was for purposes of obtaining compliance with an existing contract, rather than to obtain recognition or bargaining as an initial matter. Only the latter was a purpose forbidden by § 8 (b)(7).

The Board did not agree with the Administrative Law Judge. Relying on its R.J. Smith decision, the Board emphasized the fact that Local 103 had never achieved majority status, and the § 8 (f) agreement thus had no binding force on the employer. For this reason, Local 103’s picketing was not simply for the purpose of forcing compliance with an existing contract, even though the Board accepted the finding that only a single employer was involved. Under the Board’s view of the law and the evidence, an object of the picketing was “forcing and requiring Higdon Contracting Company, Inc., to bargain with [Local 103], without being currently certified as the representative of Higdon Contracting Company, Inc.’s employees and without a petition under Section 9 (c) being filed within a reasonable period of time . . . .”

Local 103 sought review in the United States Court of Appeals for the District of Columbia Circuit. That court set aside the order, as it had set aside the Board’s R. J. Smith order three years previously. The Court of Appeals ruled that the validity of a § 8 (f) prehire contract carried with it the right to enforce that contract by picketing, and the right as well, when breach of the agreement occurs, to file and prevail on an unfair labor practice charge against the employer for failure to bargain. This elevation of a nonmajority union to the rights of majority status was acceptable, in the court’s view, because of the second proviso to § 8 (f), which denies the usual contract bar protection to prehire agreements and permits a representation election to be held at the instance of either party at any time during the life of the agreement.

The Board’s subsequent petition to this Court for a writ of certiorari was granted. We reverse.

II

It is undisputed that the union was not the certified representative of Higdon’s employees and that it did not file an election petition within 30 days of the onset of the picketing. The issue for the Board was whether for the purposes of § 8 (b)(7)(C), the .union pickets carrying signs asserting that Higdon was violating an agreement with the union were picketing with the forbidden purpose of requiring Higdon to recognize or bargain with the union. Under the Board’s view of § 8 (f), a prehire agreement does not entitle a minority union to be treated as the majority representative of the employees until and unless it attains majority support in the relevant unit. Until that time the prehire agreement is voidable and does not have the same stature as a collective-bargaining contract entered into with a union actually representing a majority of the employees and recognized as such by the employer. Accordingly, the Board holds, as it did here, that picketing by a minority union to enforce a prehire agreement that the employer refuses to honor, effectively has the object of attaining recognition as the bargaining representative with majority support among the employees, and is consequently violative of § 8 (b) (7) (C). The Board and the Court of Appeals thus differ principally on the legal questions of how § 8 (f) is to be construed and of what consequences the execution of a prehire agreement has on the enforcement of other sections of the Act, primarily §§ 8 (a)(5) and 8 (b)(7) (C). We have concluded that the Board’s construction of the Act, although perhaps not the only tenable one, is an acceptable reading of the statutory language and a reasonable implementation of the purposes of the relevant statutory sections.

Although on its face, §8 (b)(7)(C) would apply to any extended picketing by an uncertified union where recognition or bargaining is an object, the section has not been literally applied. The Board holds that an employer’s refusal to honor a collective-bargaining contract executed with the union having majority support is a refusal to bargain and an unfair labor practice under § 8 (a) (5). Extended picketing by the union attempting to enforce the contract thus seeks to require bargaining, but as the Board applies the Act, § 8 (b) (7) (C) does not bar such picketing. Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N. L. R. B. 1086 (1964); Bay Counties District Council of Carpenters (Disney Roofing & Material Co.), 154 N. L. R. B. 1598, 1605 (1965). The prohibition of § 8 (b)(7)(C) against picketing with an object of forcing an employer “to recognize or bargain with a labor organization” should not be read as encompassing two separate and unrelated terms, but was “intended to proscribe picketing having as its target forcing or requiring an employer’s initial acceptance of the union as the bargaining representative of his employees.” Sullivan Electric, supra, at 1087.

As the present case demonstrates, however, the Sullivan Electric rule does not protect picketing to enforce a contract entered into pursuant to § 8 (f) where the union is not and has never been the chosen representative of a majority of the employees in a relevant unit. Neither will the Board issue a § 8 (a) (5) bargaining order against an employee refusing to abide by a § 8 (f) contract unless the complaining union can demonstrate its majority status in the unit. R. J. Smith Construction Co., 191 N. L. R. B. 693 (1971).

The Board’s position is rooted in the generally prevailing statutory policy that a union should not purport to act as the collective-bargaining agent for all unit employees, and may not be recognized as such, unless it is the voice of the majority of the employees in the unit. Section 7 of the Act, 61 Stat. 140, 29 U. S. C. § 157, guarantees the employees the right to bargain collectively with representatives of their own choosing. Section 9 (a), 29 U. S. C. § 159 (a), provides that the bargaining agent for all of the employees in the appropriate unit must be the representative “designated or selected for the purposes of collective bargaining by the majority of the employees ... .”

It is thus an unfair practice for an employer under §§ 8 (a) (1) and (2) and for a union under § 8 (b) (1) (A) to interfere with, restrain, or coerce employees in the exercise of their right to select their representative. The Court has held that both union and employer commit unfair practices when they sign a collective-bargaining agreement recognizing the union as the exclusive bargaining representative when in fact only a minority of the employees have authorized the union to represent their interests. “There could be no clearer abridgment of § 7 of the Act, assuring employees the right 'to bargain collectively through representatives of their own choosing’ or 'to refrain from’ such activity” than to grant “exclusive bargaining status to an agency selected by a minority of its employees, thereby impressing that agent upon the noncon-senting majority.” Garment Workers v. NLRB, 366 U. S. 731, 737 (1961). This is true even though the employer and the union believe in good faith, but mistakenly, that the union has obtained majority support. “To countenance such an excuse would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Act — that its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives.” Id., at 738-739.

Section 8 (f) is an exception to this rule. The execution of an agreement with a minority union, an act normally an unfair practice by both employer and union, is legitimated by § 8 (f) when the employer is in the construction industry. The exception is nevertheless of limited scope, for the usual rule protecting the union from inquiry into its majority status during the terms of a collective-bargaining contract does not apply to prehire agreements. A proviso to the section declares that a § 8 (f) contract, which would be invalid absent the section, “shall not be a bar to a petition filed pursuant to section 9 (c) or 9 (e).” The employer and its employees — and the union itself for that matter — may call for a bargaining representative election at airy time.

The proviso exposing unions with prehire agreements to inquiry into their majority standing by elections under § 9 (c) led the Board to its decision in R. J. Smith: An employer does not commit an unfair practice under § 8 (a)(5) when he refuses to honor the contract and bargain with the union and the union fails to establish in the unfair labor practice proceeding that it has ever had majority support. As viewed by the Board, a “prehire agreement is merely a preliminary step that contemplates further action for the development of a full bargaining relationship.” Ruttmann Construction Co., 191 N. L. R. B. 701, 702 (1971). The employer’s duty to bargain and honor the contract is contingent on the union’s attaining majority support at the various construction sites. In NLRB v. Irvin, 475 F. 2d 1265 (CA3 1973), for example, the prehire contract was deemed binding on those projects at which the union had secured a majority but not with respect to those projects not yet begun before the union had terminated the contract.

Applying this view of § 8 (f) in the § 8 (b) (7) (C) context, the Board held in this case that when the union picketed to enforce its prehire agreement, Higdon could challenge the union's majority standing by filing a § 8 (b) (7) charge and could prevail, as Higdon did here, because the union admittedly lacked majority credentials at the picketed projects. Absent these qualifications, the collective-bargaining relationship and the union’s entitlement to act as the exclusive bargaining agent had never matured. Picketing to enforce the § 8 (f) contract was the legal equivalent of picketing to require recognition as the exclusive agent, and § 8 (b) (7) (C) was infringed when the union failed to request an election within 30 days.

Nothing in the language or purposes of either § 8 (f) or § 8 (b) (7) forecloses this application of the statute. Because of § 8 (f), the making of prehire agreements with minority unions is not an unfair practice as it would be in other industries. But § 8 (f) itself does not purport to authorize picketing to enforce prehire agreements where the union has not achieved majority support. Neither does it expand the duty of an employer under §8 (a)(5), which is to bargain with a majority representative, to require the employer to bargain with a union with which he has executed a prehire agreement but which has failed to win majority support in the covered unit.

As for § 8 (b)(7), which, along with § 8 (f), was added in 1959, its major purpose was to implement one of the Act’s principal goals — to ensure that employees were free to make an uncoerced choice of bargaining agent. As we recognized in Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S. 616 (1975), “[o]ne of the major aims of the 1959 Act was to limit 'top down’ organizing campaigns, in which unions used economic weapons to force recognition from an employer regardless of the wishes of his employees.” Id., at 632, and references cited therein. The use of picketing was of particular concern as a method of coercion in three specific contexts: where employees had already selected another union representative, where employees had recently voted against a labor union, and where employees had not been given a chance to vote on the question of representation. Picketing in these circumstances was thought impermissibly to interfere with the employees’ freedom of choice.

Congressional concern about coerced designations of bargaining agents did not evaporate as the focus turned to the construction industry. Section 8 (f) was, of course, motivated by an awareness of the unique situation in that industry. Because the Board had not asserted jurisdiction over the construction industry before 1947, the House Committee Report observed that concepts evoked by the Board had been “developed without reference to the construction industry.” H. R. Rep. No. 741, 86th Cong., 1st Sess., 19 (1959), 1 Leg. Hist. 777. There were two aspects peculiar to the building trades that Congress apparently thought justified the use of prehire agreements with unions that did not then represent a majority of the employees:

“One reason for this practice is that it is necessary for the employer to know his labor costs before making the estimate upon which his bid will be based. A second reason is that the employer must be able to have available a supply of skilled craftsmen ready for quick referral.” Ibid.

The Senate Report also noted that “[representation elections in a large segment of the industry are not feasible to demonstrate . . . majority status due to the short periods of actual employment by specific employers.” S. Rep. No. 187, 86th Cong., 1st Sess., 55 (1959), 1 Leg. Hist. 541-542. Privileging unions and employers to execute and observe prehire agreements in an effort to accommodate the special circumstances in the construction industry may have greatly convenienced unions and employers, but in no sense can it be portrayed as an expression of the employees’ organizational wishes. Hence the proviso that an election could be demanded despite the prehire agreement. By the same token, because § 8 (b) (7) was adopted to ensure voluntary, uncoerced selection of a bargaining representative by employees, we cannot fault the Board for holding that § 8 (b)(7) applies to a minority union picketing to enforce a prehire contract.

The Board’s position does not, as respondents claim, render § 8 (f) meaningless. Except for § 8 (f), neither the employer nor the union could execute prehire agreements without committing unfair labor practices. Neither has the Board challenged the voluntary observance of otherwise valid § 8 (f) contracts, which is the normal course of events. It is also undisputed that when the union successfully -seeks majority support, the prehire agreement attains the status of a collective-bargaining agreement executed by the employer with a union representing a majority of the employees in the unit.

The Board's resolution of the conflicting claims in this case represents a defensible construction of the statute and is entitled to considerable deference. Courts may prefer a different application of the relevant sections, but “[t]he function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.” NLRB v. Truck Drivers, 353 U. S. 87, 96 (1957); NLRB v. Insurance Agents, 361 U. S. 477, 499 (1960). Of course, “recognition of the appropriate sphere of the administrative power . . . obviously cannot exclude all judicial review of the Board’s actions.” Ibid. But we cannot say that the Board has here “[moved] into a new area of regulation which Congress [has] not committed to it.” Ibid, In American Ship Building Co. v. NLRB, 380 U. S. 300, 318 (1965), the Court was “unable to find that any fair construction of the provisions relied on by the Board . . . can support its finding of an unfair labor practice .... [T]he role assumed by the Board . . . -[was] fundamentally inconsistent with the structure of the Act and the function of the sections relied upon.” As we have explained, this is not the case here.

The union suggests that the Board’s construction of § 8 (f) deserves little or no deference because it is merely an application in the § 8 (b)(7) context of the decision in R. J. Smith Construction Co., 191 N. L. R. B. 693 (1971), which itself was inconsistent with a prior decision, Oilfield Maintenance Co., 142 N. L. R. B. 1384 (1963). It is not at all clear from the latter .case, however, that the union involved there had never had majority status. The issue received only passing attention at the time; and the case was distinguished by the Board in Ruttmann Construction Co., 191 N. L. R. B., at 701 n. 5, decided the same day as R.J. Smith, supra, as being “primarily concerned” with “the right of a successor-employer to disavow contracts made by a predecessor with five different unions and substitute the terms of a contract it had with another union.” In any event, if Oilfield Maintenance represents a view that the majority status of the union executing a prehire agreement may not be challenged in unfair labor practice proceedings, the Board has plainly not adhered to that approach. Its contrary view has been expressed on more than one occasion. An administrative agency is not disqualified from changing its mind; and when it does, the courts still sit in review of the administrative decision and should not approach the statutory construction issue de novo and without regard to the administrative understanding of the statutes.

The union argues that the Board’s position permitting an employer to repudiate a prehire agreement until the union attains majority support renders the contract for all practical purposes unenforceable, assertedly contrary to this Court’s decision in Retail Clerks v. Lion Dry Goods, Inc., 369 U. S. 17 (1962). There, the Court’s opinion recognized that § 301 of the Labor Management Relations Act confers jurisdiction on the federal courts to entertain suits on contracts between an employer and a minority union, as well as those with majority-designated collective-bargaining agents. Section 8 (f) contracts were noted as being in this category. The Court was nevertheless speaking to an issue of jurisdiction. That a court has jurisdiction to consider a suit on a particular contract does not suggest that the contract is enforceable. It would not be inconsistent with Lion Dry Goods for a court to hold that the union’s majority standing is subject to litigation in a § 301 suit to enforce a § 8 (f) contract, just as it is in a § 8 (a) (5) unfair labor practice proceeding, and that absent a showing that the union is the majority’s chosen instrument, the contract is unenforceable.

It is also clear from what has already been said, that the decision here is not inconsistent with Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N. L. R. B. 1086 (1964). That case merely permits picketing to enforce contracts with a union actually representing a majority of the employees in the unit. Here, the union did not represent the majority, and in picketing to enforce the prehire agreement, it sought the privileges of a majority representative. The conclusion that § 8 (b) (7) was violated is legally defensible and factually acceptable.

The judgment of the Court of Appeals is reversed.

So ordered.

Me. Justice Stewart,

with whom Mr. Justice Blackmun and Mr. Justice Stevens join,

dissenting.

An employer in the construction industry, like any other employer, is under no obligation to bargain with a labor organization that does not represent a majority of his employees. See NLRB v. Philamon Laboratories, Inc., 298 F. 2d 176, 179 (CA2). But unlike other employers, he is free to do so, and may under § 8 (f) sign a contract with a union whose majority status has not been established without risking liability under §8 (a)(1) for interfering with the organizational rights of employees by recognizing a minority union. Cf. Garment Workers v. NLRB, 366 U. S. 731. When an employer in the construction industry does choose to enter a § 8 (f) prehire agreement, there is nothing in the provisions or policies of national labor law that allows the employer, or the Board, to dismiss the agreement as a nullity. Yet in this case the Court holds that both the Board and the employer may do precisely that.

Whether or not it has the “same stature as a collective-bargaining contract” with a majority union, ante, at 341, or may be the subject of a § 8 (a) (5) bargaining order, R. J. Smith Construction Co., 191 N. L. R. B. 693, enf. denied sub nom. Engineers Local 150 v. NLRB, 156 U. S. App. D. C. 294, 480 F. 2d 1186, a § 8 (f) prehire agreement is a contract embodying correlative obligations between two parties. The Board in this case concedes that the employer could lawfully have chosen to adhere to the agreement even though the union had not attained majority status. Thus even if Higdon was under no legal duty to abide by the terms of the prehire agreement, that fact does not establish that Higdon was immune from economic pressure aimed at encouraging it to do so.

Peaceful primary picketing in pursuit of lawful objectives, even by a minority union, is not forbidden by the National Labor Relations Act unless it falls within an express statutory prohibition. NLRB v. Teamsters, 362 U. S. 274, 282. The only such statutory provision that the Board believes to be applicable to this case is §8 (b)(7), which prohibits most organizational and recognitional picketing. But the Board’s contention that § 8 (b) (7) prohibits picketing to compel compliance with an existing prehire agreement is not supported by the language of that section or by the Board’s prior interpretations of it.

Section 8 (b)(7) prohibits “picketing to force an employer 'to recognize or bargain with a labor organization as the representative of his employees.’ ” Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N. L. R. B. 1086, 1087 (quoting statute, emphasis in Board’s opinion). As interpreted by the Board, this section does not prohibit picketing to enforce an existing collective-bargaining contract, even though enforcement would require actual bargaining, since it was intended to proscribe only “picketing having as its target forcing or requiring an employer’s initial acceptance of the union as the bargaining representative of his employees.” Ibid. (Emphasis supplied.)

However one may view the relationship established by a § 8 (f) agreement, it is established when the agreement is signed. Only by the most strained interpretation of the terms can picketing to enforce the agreement be said to be for the purpose of gaining “initial acceptance” or recognition. And such a tortured construction would be patently inconsistent with § 13 of the Act, 29 U. S. C. § 163, which “is a command of Congress to the courts to resolve doubts and ambiguities in favor of an interpretation . . . which safeguards the right to strike as understood prior to the passage of the Taft-Hartley Act.” NLRB v. Teamsters, supra, at 282.

Since I think neither § 8 (b) (7) nor any other provision of the Act rendered illegal the union’s peaceful primary picket protesting Higdon’s unilateral and total breach of its prehire agreement, I would affirm the judgment of the Court of Appeals.

       Section 8 (b) (7), 73 Stat. 544, 29 U. S. C. § 158 (b) (7), provides:
      “It shall be an unfair labor practice for a labor organization or its agents ... to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:
      “ (A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under section 9(c) of this Act,
      “(B) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted, or
      “(C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 9 (c) (1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.
      “Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this section 8 (b)
      Section 8 (f), 73 Stat. 545, 29 U. S. C. § 158 (f), provides:
      “It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and- construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in section 8 (a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 9 of this Act prior to the making of such agreements, or (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or (4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area -. Provided, That nothing in this subsection shall set aside the final proviso to section 8 (a) (3) of this Act: Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 9 (c) or 9 (e).”

         Iron Workers Local 103 (Higdon Contracting Co.), 216 N. L. R. B. 45 (1975).

        Iron Workers Local 103 v. NLRB, 175 U. S. App. D. C. 259, 535 F. 2d 87 (1976).

       R. J. Smith Construction Co., 191 N. L. R. B. 693 (1971), enf. denied sub nom. Engineers Local 160 v. NLRB, 156 U. S. App. D. C. 294, 480 F. 2d 1186 (1973).

        Engineers Local 150 v. NLRB, supra.

       429 U. S. 1089 (1977).

       As will appear, the Board’s conclusion, that an object of the picketing was to obtain recognition even though Local 103 sought only to enforce the § 8 (f) contract, flows from the Board’s view that a prehire contract is not the equivalent of recognizing the union as the majority representative of the employees, and that an attempt to enforce the prehire agreement by picketing to require the employer to treat with the union is recognitional picketing.
      Determining the object, or objects, of labor union picketing is a recurring and necessary function of the Board. Its resolution of these mixed factual and legal questions normally survives judicial review. A type of activity frequently found to violate § 8 (b) (7) is picketing ostensibly for the purpose of forcing an employer to abide by terms incorporated into agreements between the union and other employers. Even in cases where the union expressly disavows any recognitional intent, acceptance of the uniform terms proposed by the union can have the “net effect” of establishing the union “as the negotiator of wage rates and benefits.” Centralia Building & Construction Trades Council v. NLRB, 124 U. S. App. D. C. 212, 214, 363 F. 2d 699, 701 (1966). “The Board has held that informing the public that an employer does not employ members of a'labor organization indicates an organizational object, and that stating that an employer does not have a contract with a labor organization similarly implies an object of recognition and bargaining.” Carpenters Local 906, 204 N. L. R. B. 138, 139 (1973). Hence, picketing to enforce area standards, where an employer had been assured by notice from the union that “while we expect you to observe the wages, hours, and other benefits set forth in these documents, we do not expect or seek any collective bargaining relationship with your firm,” has been held to violate § 8 (b) (7). Hotel & Restaurant Employees (Holiday Inns of America, Inc.), 169 N. L. R. B. 683, 684 (1968).
      The Courts of Appeals have upheld the Board in these inferences. “Though this legend [‘Non-Union Conditions’] could be interpreted as merely a protest of the restaurant’s working conditions, it was reasonable for the NLRB to conclude that the message . . . was at least in part that the union desired to alter a non-union working situation by obtaining recognition. In the absence of any countervailing evidence, the NLRB could thus determine that the purpose of the picketing was recog-nitional.” San Francisco Local Joint Board v. NLRB, 163 U. S. App. D. C. 234, 239, 501 F. 2d 794, 799 (1974). See also NLRB v. Carpenters, 450 F. 2d 1255 (CA9 1971), and cases cited therein.
      In the present case, the Local’s business agent contacted Higdon Contracting’s general manager, asking “if ‘we’ were going to use union people on the job.” The general manager answered in the negative; the business agent replied, “I'll get right on it,” and the pickets materialized. The message on the picket signs announced that Higdon was not in compliance with the terms of its agreement with Local 103. The inference is certainly sustainable that Local 103 wished Higdon to abide by those terms.
      Hence, if the Board is correct in its view of the interaction of §§ 8 (f) and 8 (b)(7)(C), the Board’s decision here was within settled precedent in concluding that a purpose of the picketing was to force Higdon Contracting to recognize or bargain with the union. The picketing carried on in this case, unless § 8 (f) required a contrary conclusion as a matter of law, was in clear violation of § 8 (b) (7) (C).

       See NLRB v. Hyde, 339 F. 2d 568, 571-573 (CA9 1965). A contract with a majority representative also carries with it the presumption that the union’s majority status still obtains. Dayton Motels, Inc., 192 N. L. R. B. 674, 678 (1971), remanded, 474 F. 2d 328 (CA6 1973), enf’d, 525 F. 2d 476 (CA6 1976).

       “The total effect of these proposals in the administration bill would be to regulate picketing so that employers and their employees will not be subject to the continuous coercion of an organizational picket line.” 105 Cong. Rec. 1731 (1959) (remarks of Sen. Dirksen), 2 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 994 (hereinafter cited as Leg. Hist.).
      The administration bill had added the provisions that would become §8 (b)(7). The Department of Labor’s explanatory statement grouped together the ways in which unfair picketing pressure could be exerted, and noted that the bill would make it “an unfair labor practice, subject to mandatory injunction, for a union to picket in order to coerce an employer to recognize it as bargaining representative of his employees .. . .” 105 Cong. Rec. 1281 (1959), 2 Leg. Hist. 977.
      The President’s transmittal letter had stated:
      “I recommend legislation . . . [t]o make it illegal for a union, by picketing, to coerce an employer to recognize it as the bargaining representative of his employees or his employees to accept or designate it as their representative where the employer has recognized in accordance with law another labor organization, or where a representation election has been conducted within the last preceding 12 months, or where it cannot be demonstrated that there is a sufficient showing of interest on the part of the employees in being represented by the picketing union or where the 'picketing has continued for a reasonable period of time without the desires of the employees being determined by a representation election; and to provide speedy and effective enforcement measures.” S. Doc. No. 10, 86th Cong., 1st Sess., 2-3 (1959), 1 Leg. Hist. 81-82 (emphasis added).

       Congress was careful to make its intention clear that prehire agreements were to be arrived at voluntarily, and no element of coercion was to be admitted into the narrow exception being established to the majority principle. Representative Barden, an important House floor leader on the bill and a conferee, introduced as an expression of legislative intent Senator Kennedy's explanation the year before of the voluntary nature of the prehire provision:
      “Mr. Kennedy: I shall answer the Senator from Florida as follows — and it is my intention, by so answering, to establish the legislative history on this question: It was not the intention of the committee to require by section 604 (a) the making of prehire agreements, but, rather, to permit them; nor was it the intention of the committee to authorize a labor organization to strike, picket, or otherwise coerce an employer to sign a prehire agreement where the majority status of the union had not been established. The purpose of this section is to permit voluntary prehire agreements.” 105 Cong. Rec. 18128 (1969), 2 Leg. Hist. 1715.
      The House Conference Report similarly stressed that “[n]othing in such provision is intended ... to authorize the use of force, coercion, strikes, or picketing to compel any person to enter into such prehire agreements.” H. R. Rep. No. 1147, 86th Cong., 1st Sess., 42 (1959), 1 Leg. Hist. 946.

       A comparable situation obtains concerning hot-cargo clauses, which are permitted in the construction industry by § 8 (e), 29 U. S. C. § 158 (e), but which cannot be enforced by picketing. Before the enactment of the proviso, this Court held that it was a violation of the secondary boycott provisions of the Act, §8 (b)(4) (A), 61 Stat. 136, to enforce a lawful hot-cargo clause in a contract by refusing to work. Carpenters v. NLRB, 357 U. S. 93 (1958). After the adoption of § 8 (e), it has remained the Board's position that a hot-cargo clause in the construction industry, which is exempted from the ban of § 8 (e), may not be enforced by conduct forbidden by §8 (b)(4). Northeastern Indiana Building & Construction Trades Council, 148 N. L. R. B. 854 (1964), remanded on other grounds, 122 U. S. App. D. C. 220, 352 F. 2d 696 (1965). Cf. NLRB v. Pipefitters, 429 U. S. 507 (1977) (valid work preservation agreement does not privilege secondary boycott picketing).

       In R. J. Smith, the Board expressly limited any such implication from Oilfield Maintenance to cases where a rebuttable presumption of majority status, or majority status in fact, existed. One-time majority status, coupled with a union security clause that has been enforced, gives rise to a rebuttable presumption of continued majority status, in the Board’s view. See R. J. Smith, 191 N. L. R. B., at 695.

       Section 8 (a) (5) of the National Labor Relations Act, as set forth in 29 U. S. C. § 158 (a) (5), provides that it is an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title.” Section 9 (a), 29 U. S. C. § 159 (a), provides in pertinent part that “[representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining . . . .”

       Section 8 (f) of the National Labor Relations Act, as set forth in 29 U. S. C. § 158 (f), provides in pertinent part:
      “It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members . . . because (1) the majority status of such labor organization has not been established under the provisions of section 159 of this title prior to the making of such agreement . . .

       Section 8 (b) (7) of the National Labor Relations Act, as set forth in. 29 U. S. C. § 158 (b) (7), provides in pertinent part that it shall be an unfair labor practice for a labor organization
      “to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:
      “ (C) where such picketing has been conducted without a petition under section 159 (c) of this title being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing . . . .”

       The Board and the Court rely on cases holding that “picketing ostensibly for the purpose of forcing an employer to abide by terms incorporated into agreements between the union and other employers” may in fact have a recognitional purpose in violation of § 8 (b) (7). Ante, at 342 n. 7. See, e. g., Carpenters Local 906, 204 N. L. R. B. 138; Hotel & Restaurant Employees (Holiday Inns of America, Inc.), 169 N. L. R. B. 683. But in none of these cases did the union and the employer have a pre-existing relationship under a § 8 (f) agreement.


author: Per Curiam.

text:
    CARTER, PUBLIC VEHICLE LICENSE COMMISSIONER OF CHICAGO v. MILLER
    No. 76-1171.
    Argued November 29-30, 1977
    Decided January 17, 1978

      William R. Quinlan argued the cause for petitioner. With him on the briefs were Daniel Pascóle and Robert Retke.

      Robert Masur argued the cause for respondent. With him on the briefs were Alan Freedman, Howard Eglit, and David Goldberger.

      Briefs of amici curiae urging affirmance were filed by William B. Spann, Jr., and Robert B. McKay for the American Bar Assn.; and by James R. Madison and Norman C. Hile for the San Francisco Lawyers' Committee for Urban Affairs.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

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