author: Justice Blackmun Justice Marshall,

text:
    OLIM et al. v. WAKINEKONA
    No. 81-1581.
    Argued January 19, 1983
    Decided April 26, 1983

      Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, Rehnquist, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, and in Part I of which Stevens, J., joined, post, p. 251.

      Michael A. Lilly, First Deputy Attorney General of Hawaii, argued the cause for petitioners. With him on the brief was James H. Dannenberg, Deputy Attorney General.

      Robert Gilbert Johnston argued the cause for respondent. With him on the brief was Clayton C. Ikei.

       Briefs of amici curiae urging reversal were filed for the State of Alaska et al. by Paul L. Douglas, Attorney General of Nebraska, J. Kirk Brown, Assistant Attorney General, Judith W. Rogers, Corporation Counsel of the District of Columbia, and the Attorneys General for their respective jurisdictions as follows: Wilson L. Condon of Alaska, Amata F. Fa’alevao of American Samoa, Robert K. Corbin of Arizona, Jim Smith of Florida, David H. Leroy of Idaho, William J. Guste, Jr., of Louisiana, William A. Attain of Mississippi, Michael T. Greely of Montana, Richard H. Brya/n of Nevada, Irwin I. Kimmelman of New Jersey, Jeff Bingaman ot New Mexico, Rufus L. Edmisten of North Carolina, Robert Wefald of North Dakota, William J. Brown of Ohio, Dennis J. Roberts II of Rhode Island, Mark V. Meierhenry of South Dakota, William M. Leech, Jr., of Tennessee, John J. Easton of Vermont, Gerald L. Battles of Virginia, Kenneth 0. Eikenberry of Washington, Chauncey H. Browning of West Virginia, Bronson C. La Follette of Wisconsin, and Steven F. Freudenthal of Wyoming; and for the Commonwealth of Massachusetts et al. by Francis X. Bellotti, Attorney General of Massachusetts, Stephen R. Delinsky, Barbara A. H. Smith, and Leo J. Cushing, Assistant Attorneys General, Anthony Ching, Solicitor General of Arizona, and the Attorneys General for their respective jurisdictions as follows: Wilson L. Condon of Alaska, Aviata F. Fa’alevao of American Samoa, Robert K. Corbin of Arizona,
        Jim Smith of Florida, David H. Leroy of Idaho, William A. Attain of Mississippi, Michael T. Greely of Montana, Irwin I. Kimmelman of New Jersey, JeffBingaman of New Mexico, Rufus L. Edmisten of North Carolina, Robert 0. Wefald of North Dakota, William J. Brown of Ohio, Dennis J. Roberts II of Rhode Island, Mark V. Meierhenry of South Dakota, William M. Leech, Jr., of Tennessee, JohnJ. Easton of Vermont, Chauncey H. Browning of West Virginia, and Bronson C. La Follette of Wisconsin.

   Justice Blackmun

delivered the opinion of the Court.

The issue in this case is whether the transfer of a prisoner from a state prison in Hawaii to one in California implicates a liberty interest within the meaning of the Due Process Clause of the Fourteenth Amendment.

I

A

Respondent Delbert Kaahanui Wakinekona is serving a sentence of life imprisonment without the possibility of parole as a result of his murder conviction in a Hawaii state court. He also is serving sentences for various other crimes, including rape, robbery, and escape. At the Hawaii State Prison outside Honolulu, respondent was classified as a maximum security risk and placed in the maximum control unit.

Petitioner Antone Olim is the Administrator of the Hawaii State Prison. The other petitioners constituted a prison “Program Committee.” On August 2, 1976, the Committee held hearings to determine the reasons for a breakdown in discipline and the failure of certain programs within the prison’s maximum control unit. Inmates of the unit appeared at these hearings. The Committee singled out respondent and another inmate as troublemakers. On August 5, respondent received notice that the Committee, at a hearing to be held on August 10, would review his correctional program to determine whether his classification within the system should be changed and whether he should be transferred to another Hawaii facility or to a mainland institution.

The August 10 hearing was conducted by the same persons who had presided over the hearings on August 2. Respondent retained counsel to represent him. The Committee recommended that respondent’s classification as a maximum security risk be continued and that he be transferred to a prison on the mainland. He received the following explanation from the Committee:

“The Program Committee, having reviewed your entire file, your testimony and arguments by your counsel, concluded that your control classification remains at Maximum. You are still considered a security risk in view of your escapes and subsequent convictions for serious felonies. The Committee noted the progress you made in vocational training and your expressed desire to continue in this endeavor. However your relationship with staff, who reported that you threaten and intimidate them, raises grave concerns regarding your potential for further disruptive and violent behavior. Since there is no other Maximum security prison in Hawaii which can offer you the correctional programs you require and you cannot remain at [the maximum control unit] because of impending construction of a new facility, the Program Committee recommends your transfer to an institution on the mainland.” App. 7-8.

Petitioner Olim, as Administrator, accepted the Committee’s recommendation, and a few days later respondent was transferred to Folsom State Prison in California.

B

Rule IV of the Supplementary Rules and Regulations of the Corrections Division, Department of Social Services and Housing, State of Hawaii, approved in June 1976, recites that the inmate classification process is not concerned with punishment. Rather, it is intended to promote the best interests of the inmate, the State, and the prison community. Paragraph 3 of Rule IV requires a hearing prior to a prison transfer involving “a grievous loss to the inmate,” which the Rule defines “generally” as “a serious loss to a reasonable man.” App. 21. The Administrator, under ¶ 2 of the Rule, is required to establish “an impartial Program Committee” to conduct such a hearing, the Committee to be “composed of at least three members who were not actively involved in the process by which the inmate . . . was brought before the Committee.” App. 20. Under ¶3, the Committee must give the inmate written notice of the hearing, permit him, with certain stated exceptions, to confront and cross-examine witnesses, afford him an opportunity to be heard, and apprise him of the Committee’s findings. App. 21-24.

The Committee is directed to make a recommendation to the Administrator, who then decides what action to take:

“[The Administrator] may, as the final decisionmaker:
“(a) Affirm or reverse, in whole or in part, the recommendation; or
“(b) hold in abeyance any action he believes jeopardizes the safety, security, or welfare of the staff, inmate . . . , other inmates . . . , institution, or community and refer the matter back to the Program Committee for further study and recommendation.” Rule IV, ¶ 3d(3), App. 24.

The regulations contain no standards governing the Administrator’s exercise of his discretion. See Lono v. Ariyoshi, 63 Haw. 138, 144-145, 621 P. 2d 976, 980-981 (1981).

C

Respondent filed suit under 42 U. S. C. § 1983 against petitioners as the state officials who caused his transfer. He alleged that he had been denied procedural due process because the Committee that recommended his transfer consisted of the same persons who had initiated the hearing, this being in specific violation of Rule IV, ¶ 2, and because the Committee was biased against him. The United States District Court for the District of Hawaii dismissed the complaint, holding that the Hawaii regulations governing prison transfers do not create a substantive liberty interest protected by the Due Process Clause. 459 F. Supp. 473 (1978).

The United States Court of Appeals for the Ninth Circuit, by a divided vote, reversed. 664 F. 2d 708 (1981). It held that Hawaii had created a constitutionally protected liberty interest by promulgating Rule IV. In so doing, the court declined to follow cases from other Courts of Appeals holding that certain procedures mandated by prison transfer regulations do not create a liberty interest. See, e. g., Cofone v. Manson, 594 F. 2d 934 (CA2 1979); Lombardo v. Meachum, 548 F. 2d 13 (CA1 1977). The court reasoned that Rule IV gives Hawaii prisoners a justifiable expectation that they will not be transferred to the mainland absent a hearing, before an impartial committee, concerning the facts alleged in the prehearing notice. Because the Court of Appeals’ decision created a conflict among the Circuits, and because the case presents the further question whether the Due Process Clause in and of itself protects against interstate prison transfers, we granted certiorari. 456 U. S. 1005 (1982).

II

In Meachum v. Fano, 427 U. S. 215 (1976), and Montanye v. Haymes, 427 U. S. 236 (1976), this Court held that an intrastate prison transfer does not directly implicate the Due Process Clause of the Fourteenth Amendment. In Meachum, inmates at a Massachusetts medium security prison had been transferred to a maximum security prison in that Commonwealth. In Montanye, a companion case, an inmate had been transferred from one maximum security New York prison to another as punishment for a breach of prison rules. This Court rejected “the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause.” Meachum, 427 ,U. S., at 224 (emphasis in original). It went on to state:

“The initial decision to assign the convict to a particular institution is not subject to audit under the Due Process Clause, although the degree of confinement in one prison may be quite different from that in another. The conviction has sufficiently extinguished the defendant’s liberty interest to empower the State to confine him in any of its prisons.
“Neither, in our view, does the Due Process Clause in and of itself protect a duly convicted prisoner against transfer from one institution to another within the state prison system. Confinement in any of the State’s institutions is within the normal limits or range of custody which the conviction has authorized the State to impose.” Id., at 224-225 (emphasis in original).

The Court observed that, although prisoners retain a residuum of liberty, see Wolff v. McDonnell, 418 U. S. 539, 555-556 (1974), a holding that “any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” 427 U. S., at 225 (emphasis in original).

Applying the Meachum, and Montanye principles in Vitek v. Jones, 445 U. S. 480 (1980), this Court held that the transfer of an inmate from a prison to a mental hospital did implicate a liberty interest. Placement in the mental hospital was “not within the range of conditions of confinement to which a prison sentence subjects an individual,” because it brought about “consequences . . . qualitatively different from the punishment characteristically suffered by a person convicted of crime.” Id., at 493. Respondent argues that the same is true of confinement of a Hawaii prisoner on the mainland, and that Vitek therefore controls.

We do not agree. Just as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State. Often, confinement in the inmate’s home State will not be possible. A person convicted of a federal crime in a State without a federal correctional facility usually will serve his sentence in another State. Overcrowding and the need to separate particular prisoners may necessitate interstate transfers. For any number of reasons, a State may lack prison facilities capable of providing appropriate correctional programs for all offenders.

Statutes and interstate agreements recognize that, from time to time, it is necessary to transfer inmates to prisons in other States. On the federal level, 18 U. S. C. § 5003(a) authorizes the Attorney General to contract with a State for the transfer of a state prisoner to a federal prison, whether in that State or another. See Howe v. Smith, 452 U. S. 473 (1981). Title 18 U. S. C. §4002 (1976 ed. and Supp. V) permits the Attorney General to contract with any State for the placement of a federal prisoner in state custody for up to three years. Neither statute requires that the prisoner remain in the State in which he was convicted and sentenced.

On the state level, many States have statutes providing for the transfer of a state prisoner to a federal prison, e. g., Haw. Rev. Stat. §353-18 (1976), or another State’s prison, e. g., Alaska Stat. Ann. §33.30.100 (1982). Corrections compacts between States, implemented by statutes, authorize incarceration of a prisoner of one State in another State’s prison. See, e. g., Cal. Penal Code Ann. § 11189 (West 1982) (codifying Interstate Corrections Compact); § 11190 (codifying Western Interstate Corrections Compact); Conn. Gen. Stat. § 18-102 (1981) (codifying New England Interstate Corrections Compact); § 18-106 (codifying Interstate Corrections Compact); Haw. Rev. Stat. § 355-1 (1976) (codifying Western Interstate Corrections Compact); Idaho Code § 20-701 (1979) (codifying Interstate Corrections Compact); Ky. Rev. Stat. § 196.610 (1982) (same). And prison regulations such as Hawaii’s Rule IV anticipate that inmates sometimes will be transferred to prisons in other States.

In short, it is neither unreasonable nor unusual for an inmate to serve practically his entire sentence in a State other than the one in which he was convicted and sentenced, or to be transferred to an out-of-state prison after serving a portion of his sentence in his home State. Confinement in another State, unlike confinement in a mental institution, is “within the normal limits or range of custody which the conviction has authorized the State to impose.” Meachum, 427 U. S., at 225. Even when, as here, the transfer involves long distances and an ocean crossing, the confinement remains within constitutional limits. The difference between such a transfer and an intrastate or interstate transfer of shorter distance is a matter of degree, not of kind, and Meachum instructs that “the determining factor is the nature of the interest involved rather than its weight.” 427 U. S., at 224. The reasoning of Meachum and Montanye compels the conclusion that an interstate prison transfer, including one from Hawaii to California, does not deprive an inmate of any liberty interest protected by the Due Process Clause in and of itself.

III

The Court of Appeals held that Hawaii’s prison regulations create a constitutionally protected liberty interest. In Meachum, however, the State had “conferred no right on the prisoner to remain in the prison to which he was initially assigned, defeasible only upon proof of specific acts of misconduct,” 427 U. S., at 226, and “ha[d] not represented that transfers [would] occur only on the occurrence of certain events,” id., at 228. Because the State had retained “discretion to transfer [the prisoner] for whatever reason or for no reason at all,” ibid., the Court found that the State had not created a constitutionally protected liberty interest. Similarly, because the state law at issue in Montanye “impose[d] no conditions on the discretionary power to transfer,” 427 U. S., at 243, there was no basis for invoking the protections of the Due Process Clause.

These cases demonstrate that a State creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show “that particularized standards or criteria guide the State’s decisionmakers.” Connecticut Board of Pardons v. Dumschat, 452 U. S. 458, 467 (1981) (Brennan, J., concurring). If the decisionmaker is not “required to base its decisions on objective and defined criteria,” but instead “can deny the requested relief for any constitutionally permissible reason or for no reason at all,” ibid., the State has not created a constitutionally protected liberty interest. See id., at 466-467 (opinion of the Court); see also Vitek v. Jones, 445 U. S., at 488-491 (summarizing cases).

Hawaii’s prison regulations place no substantive limitations on official discretion and thus create no liberty interest entitled to protection under the Due Process Clause. As Rule IV itself makes clear, and as the Supreme Court of Hawaii has held in Lono v. Ariyoshi, 63 Haw., at 144-145, 621 P. 2d, at 980-981, the prison Administrator’s discretion to transfer an inmate is completely unfettered. No standards govern or restrict the Administrator’s determination. Because the Administrator is the only decisionmaker under Rule IV, we need not decide whether the introductory paragraph of Rule IV, see n. 1, supra, places any substantive limitations on the purely advisory Program Committee.

The Court of Appeals thus erred in attributing significance to the fact that the prison regulations require a particular kind of hearing before the Administrator can exercise his unfettered discretion. As the United States Court of Appeals for the Seventh Circuit recently stated in Shango v. Jurich, 681 F. 2d 1091, 1100-1101 (1982), “[a] liberty interest is of course a substantive interest of an individual; it cannot be the right to demand needless formality.” Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement. See generally Simon, Liberty and Property in the Supreme Court: A Defense of Roth and Perry, 71 Calif. L. Rev. 146, 186 (1983). If officials may transfer a prisoner “for whatever reason or for no reason at all,” Meachum, 427 U. S., at 228, there is no such interest for process to protect. The State may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right. See Hewitt v. Helms, 459 U. S. 460, 471 (1983).

IV

In sum, we hold that the transfer of respondent from Hawaii to California did not implicate the Due Process Clause directly, and that Hawaii’s prison regulations do not create a protected liberty interest. Accordingly, the judgment of the Court of Appeals is

Reversed.

Justice Marshall,

with whom Justice Brennan joins, and with whom Justice Stevens joins as to Part I, dissenting.

In my view, the transfer of respondent Delbert Kaahanui Wakinekona from a prison in Hawaii to a prison in California implicated an interest in'liberty protected by the Due Process Clause of the Fourteenth Amendment. I respectfully dissent.

I

An inmate’s liberty interest is not limited to whatever a State chooses to bestow upon him. An inmate retains a significant residuum of constitutionally protected liberty following his incarceration independent of any state law. As we stated in Wolff v. McDonnell, 418 U. S. 539, 555-556 (1974): “[A] prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country. . . . [Prisoners] may not be deprived of life, liberty, or property without due process of law.”

In determining whether a change in the conditions of imprisonment implicates a prisoner’s retained liberty interest, the relevant question is whether the change constitutes a sufficiently “grievous loss” to trigger the protection of due process. Vitek v. Jones, 445 U. S. 480, 488 (1980). See Morrissey v. Brewer, 408 U. S. 471, 481 (1972), citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring). The answer depends in part on a comparison of “the treatment of the particular prisoner with the customary, habitual treatment of the population of the prison as a whole.” Hewitt v. Helms, 459 U. S. 460, 486 (1983) (Stevens, J., dissenting). This principle was established in our decision in Vitek, which held that the transfer of an inmate from a prison to a mental hospital implicated a liberty interest because it brought about “consequences . . . qualitatively different from the punishment characteristically suffered by a person convicted of crime.” 445 U. S., at 493. Because a significant qualitative change in the conditions of confinement is not “within the range of conditions of confinement to which a prison sentence subjects an individual,” ibid., such a change implicates a prisoner’s protected liberty interest.

There can be little doubt that the transfer of Wakinekona from a Hawaii prison to a prison in California represents a substantial qualitative change in the conditions of his confinement. In addition to being incarcerated, which is the ordinary consequence of a criminal conviction and sentence, Wakinekona has in effect been banished from his home, a punishment historically considered to be “among the severest.” For an indeterminate period of time, possibly the rest of his life, nearly 2,500 miles of ocean will separate him from his family and friends. As a practical matter, Waki-nekona may be entirely cut off from his only contacts with the outside world, just as if he had been imprisoned in an institution which prohibited visits by outsiders. Surely the isolation imposed on him by the transfer is far more drastic than that which normally accompanies imprisonment.

I cannot agree with the Court that Meachum v. Fano, 427 U. S. 215 (1976), and Montanye v. Haymes, 427 U. S. 236, 243 (1976), compel the conclusion that Wakinekona’s transfer implicates no liberty interest. Ante, at 248. Both cases involved transfers of- prisoners between institutions located within the same State in which they were convicted, and the Court expressly phrased its holdings in terms of mimstate transfers. Both decisions rested on the premise that no liberty interest is implicated by an initial decision to place a prisoner in one institution in the State rather than another. See Meachum, supra, at 224; Montanye, supra, at 243. On the basis of that premise, the Court concluded that the subsequent transfer of a prisoner to a different facility within the State likewise implicates no liberty interest. - In this case, however, we cannot assume that a State’s initial placement of an individual in a prison far removed from his family and residence would raise no due process questions. None of our prior decisions has indicated that such a decision would be immune from scrutiny under the Due Process Clause.

Actual experience simply does not bear out the Court’s assumptions that interstate transfers are routine and that it is “not unusual” for a prisoner “to serve practically his entire sentence in a State other than the one in which he was convicted and sentenced.” Ante, at 247. In Hawaii less than three percent of the state prisoners were transferred to prisons in other jurisdictions in 1979, and on a nationwide basis less than one percent of the prisoners held in state institutions were transferred to other jurisdictions. Moreover, the vast majority of state prisoners are held in facilities located less than 250 miles from their homes. Measured against these norms, Wakinekona’s transfer to a California prison represents a punishment “qualitively different from the punishment characteristically suffered by a person convicted of crime.” Vitek v. Jones, supra, at 493.

I therefore cannot agree that a State may transfer its prisoners at will, to any place, for any reason, without ever implicating any interest in liberty protected by the Due Process Clause.

II

Nor can I agree with the majority’s conclusion that Hawaii’s prison regulations do not create a liberty interest. This Court’s prior decisions establish that a liberty interest may be “created” by state laws, prison rules, regulations, or practices. State laws that impose substantive criteria which limit or guide the discretion of officials have been held to create a protected liberty interest. See, e. g., Hewitt v. Helms, 459 U. S. 460 (1983); Wolff v. McDonnell, 418 U. S. 539 (1974); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979); Wright v. Enomoto, 462 F. Supp. 397 (ND Cal. 1976), summarily aff’d, 434 U. S. 1052 (1978). By contrast, a liberty interest is not created by a law which “imposes no conditions on [prison officials’] discretionary power,” Montanye, supra, at 243, authorizes prison officials to act “for whatever reason or for no reason at all,” Meachum, supra, at 228, or accords officials “unfettered discretion,” Connecticut Board of Pardons v. Dumschat, 452 U. S. 458, 466 (1981).

The Court misapplies these principles in concluding that Hawaii’s prison regulations leave prison officials with unfettered discretion to transfer inmates. Ante, at 249-250. Rule IV establishes a scheme under which inmates are classified upon initial placement in an institution, and must subsequently be reclassified before they can be transferred to another institution. Under the Rule the standard for classifying inmates is their “optimum placement within the Corrections Division” in light of the “best interests of the individual, the State, and the community.” In classifying inmates, the Program Committee may not consider punitive aims. It may consider only factors relevant to determining where the individual will be “best situated,” such as “his history, his changing needs, the resources and facilities available to the Corrections Divisions, the other inmates/wards, the exigencies of the community, and any other relevant factors.” Paragraph 3 of Rule IV establishes a detailed set of procedures applicable when, as in this case, the reclassification of a prisoner may lead to a transfer involving a “grievous loss,” a phrase contained in the Rule itself. The procedural rules are cast in mandatory language, and cover such matters as notice, access to information, hearing, confrontation and cross-examination, and the basis on which the Committee is to make its recommendation to the facility administrator.

The limitations imposed by Rule IV are at least as substantial as those found sufficient to create a liberty interest in Hewitt v. Helms, supra, decided earlier this Term. In Hewitt an inmate contended that his confinement in administrative custody implicated an interest in liberty protected by the Due Process Clause. State law provided that a prison official could place inmates in administrative custody “upon his assessment of the situation and the need for control,” or “where it has been determined that there is a threat of a serious disturbance, or a serious threat to the individual or others,” and mandated certain procedures such as notice and a hearing. This Court construed the phrases “‘the need for control/ or ‘the threat of a serious disturbance/ ” as “substantive predicates” which restricted official discretion. Id., at 472. These restrictions, in combination with the mandatory procedural safeguards, “deman[ded] a conclusion that the State has created a protected liberty interest.” Ibid.

Rule IV is not distinguishable in any meaningful respect from the provisions at issue in Helms. The procedural requirements contained in Rule IV are, if anything, far more elaborate than those involved in Helms, and are likewise couched in “language of an unmistakably mandatory character.” Id., at 471. Moreover, Rule IV, to no less an extent than the state law at issue in Helms, imposes substantive criteria restricting official discretion. In Helms this Court held that a statutory phrase such as “the need for control” constituted a limitation on the discretion of prison officials to place inmates in administrative custody. In my view Rule IV, which states that transfers are intended to ensure an inmate’s “optimum placement” in accordance with considerations which include “his changing needs [and] the resources and facilities available to the Corrections Division,” also restricts official discretion in ordering transfers.

The Court suggests that, even if the Program Committee does not have unlimited discretion in making recommendations for classifications and transfers, this cannot give rise to a state-created liberty interest because the prison Administrator retains “completely unfettered” “discretion to transfer an inmate,” ante, at 249. I disagree. Rule IV, ¶ 3(d)(3), provides for review by the prison Administrator of recommendations forwarded to him by the Program Committee. Even if this provision must be construed as authorizing the Administrator to transfer a prisoner for wholly arbitrary reasons, that mere possibility does not defeat the protectible expectation otherwise created by Hawaii’s reclassification and transfer scheme that transfers will take place only if required to ensure an inmate’s optimum placement. In Helms a prison regulation also left open the possibility that the Superintendent could decide, for any reason or no reason at all, whether an inmate should be confined in administrative custody. This Court nevertheless held that the state scheme as a whole created an interest in liberty protected by the Due Process Clause. 459 U. S., at 471-472. Helms thus necessarily rejects the view that state laws which impose substantive limitations and elaborate procedural requirements on official conduct create no liberty interest solely because there remains the possibility that an official will act in an arbitrary manner at the end of the process.

For the foregoing reasons, I dissent.

       Paragraph 1 of Rule IV states:
      “An inmate’s . . . classification determines where he is best situated within the Corrections Division. Rather than being concerned with isolated aspects of the individual or punishment (as is the adjustment process), classification is a dynamic process which considers the individual, his history, his changing needs, the resources and facilities available to the Corrections Division, the other inmates . . . , the exigencies of the community, and any other relevant factors. It never inflicts punishment; on the contrary, even the imposition of a stricter classification is intended to be in the best interests of the individual, the State, and the community. In short, classification is a continuing evaluation of each individual to ensure that he is given the optimum placement within the Corrections Division.” App. 20.

       Petitioners concede, “for purposes of the argument,” that respondent suffered a “grievous loss” within the meaning of Rule IV when he was transferred from Hawaii to the mainland. Tr. of Oral Arg. 9, 25.

       Rule V provides that an inmate may retain legal counsel if his hearing concerns a “potential Interstate transfer.” App. 25.

       Respondent also had alleged that the transfer violated the Hawaii Constitution and state regulations and statutes. In light of its dismissal of respondent’s federal claims, the District Court declined to exercise pendent jurisdiction over these state-law claims. 459 F. Supp., at 476.

       Several months before the Court of Appeals handed down its decision, the Supreme Court of Hawaii had held that because Hawaii’s prison regulations do not limit the Administrator’s discretion to transfer prisoners to the mainland, they do not create any liberty interest. Lono v. Ariyoshi, 63 Haw. 138, 621 P. 2d 976 (1981). In a petition for rehearing in the present case, petitioners directed the Ninth Circuit’s attention to the Lono decision. See 664 F. 2d, at 714. The Court of Appeals, however, concluded that the Hawaii court’s interpretation of the regulations was not different from its own; the Hawaii court merely had reached a different result on the “federal question.” The Court of Appeals thus adhered to its resolution of the case. Id., at 714-716.

       Indeed, in Vitek itself the Court did not read Meachum and Montanye as stating a rule applicable only to intrastate transfers. The Court stated: “In Meachum v. Fano . . . and Montanye v. Haymes ... we held that the transfer of a prisoner from one prison to another does not infringe a protected liberty interest.” 445 U. S., at 489 (emphasis added). The Court’s other cases describing Meachum and Montanye also have eschewed the narrow reading respondent now proposes. See Hewitt v. Helms, 459 U. S. 460, 467-468 (1983); Moody v. Daggett, 429 U. S. 78, 88, n. 9 (1976).

       This statute has been invoked to transfer prisoners from Hawaii state facilities to federal prisons on the mainland. See Anthony v. Wilkinson, 637 F. 2d 1130 (CA7 1980), vacated and remanded sub nom. Hawaii v. Mederios, 453 U. S. 902 (1981).

       After the decisions in Meachum and Montanye, courts almost uniformly have held that an inmate has no entitlement to remain in a prison in his home State. See Beshaw v. Fenton, 635 F. 2d 239, 246-247 (CA3 1980), cert. denied, 453 U. S. 912 (1981); Cofone v. Manson, 594 F. 2d 934, 937, n. 4 (CA2 1979); Sisbarro v. Warden, 592 F. 2d 1, 3 (CA1), cert. denied, 444 U. S. 849 (1979); Fletcher v. Warden, 467 F. Supp. 777, 779-780 (Kan. 1979); Curry-Bey v. Jackson, 422 F. Supp. 926, 931-933 (DC 1976); McDonnell v. United States Attorney General, 420 F. Supp. 217, 220 (ED Ill. 1976); Goodnow v. Perrin, 120 N. H. 669, 671, 421 A. 2d 1008, 1010 (1980); Girouard v. Hogan, 135 Vt. 448, 449-450, 378 A. 2d 105, 106-107 (1977); In re Young, 95 Wash. 2d 216, 227-228, 622 P. 2d 373, 379 (1980); cf. Fajeriak v. McGinnis, 493 F. 2d 468 (CA9 1974) (pre-Meachum, transfers from Alaska to other States); Hillen v. Director of Department of Social Services, 455 F. 2d 510 (CA9), cert. denied, 409 U. S. 989 (1972) (pre-Meachum transfer from Hawaii to California). But see In re Young, 95 Wash. 2d, at 233, 622 P. 2d, at 382 (concurring opinion); State ex rel. Olson v. Maxwell, 259 N. W. 2d 621 (N. D. 1977); cf. Tai v. Thompson, 387 F. Supp. 912 (Haw. 1975) (pre-Meachum transfer).

       Respondent’s argument to the contrary is unpersuasive. The Court in Montanye took note that among the hardships that may result from a prison transfer are separation of the inmate from home and family, separation from inmate friends, placement in a new and possibly hostile environment, difficulty in making contact with counsel, and interruption of educational and rehabilitative programs. 427 U. S., at 241, n. 4. These are the same hardships respondent faces as a result of his transfer from Hawaii to California.
      Respondent attempts to analogize his transfer to banishment in the English sense of “beyond the seas,” arguing that banishment surely is not within the range of confinement justified by his sentence. But respondent in no sense has been banished; his conviction, not the transfer, deprived him of his right freely to inhabit the State. The fact that his confinement takes place outside Hawaii is merely a fortuitous consequence of the fact that he must be confined, not an additional element of his punishment. See Girouard v. Hogan, 135 Vt., at 449-450, 378 A. 2d, at 106-107. Moreover, respondent has not been exiled; he remains within the United States.
      In essence, respondent’s banishment argument simply restates his claim that a transfer from Hawaii to the mainland is different in kind from other transfers. As has been shown in the text, however, respondent’s transfer was authorized by his conviction. A conviction, whether in Hawaii, Alaska, or one of the contiguous 48 States, empowers the State to confine the inmate in any penal institution in any State unless there is state law to the contrary or the reason for confining the inmate in a particular institution is itself constitutionally impermissible. See Montanye, 427 U. S., at 242; id., at 244 (dissenting opinion); Cruz v. Beto, 405 U. S. 319 (1972); Fajeriak v. McGinnis, 493 F. 2d, at 470.

       In Hewitt v. Helms, 459 U. S. 460 (1983), unlike this case, state law limited the decisionmakers’ discretion. To the extent the dissent doubts that the Administrator’s discretion under Rule IV is truly unfettered, post, at 258, and n. 11, it doubts the ability or authority of the Hawaii Supreme Court to construe state law.

       In Meachum itself, the Court of Appeals had interpreted the applicable regulations as entitling inmates to a pretransfer hearing, see Fano v. Meachum, 520 F. 2d 374, 379-380 (CA1 1975), but this Court held that state law created no liberty interest.

       Other courts agree that an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause. See, e. g., United States v. Jiles, 658 F. 2d 194, 200 (CA3 1981), cert. denied, 455 U. S. 923 (1982); Bills v. Henderson, 631 F. 2d 1287, 1298-1299 (CA6 1980); Pugliese v. Nelson, 617 F. 2d 916, 924-925 (CA2 1980); Cofone v. Manson, 594 F. 2d, at 938; Lombardo v. Meachum, 548 F. 2d 13, 14-16 (CA1 1977); Adams v. Wainwright, 512 F. Supp. 948, 953 (ND Fla. 1981); Lono v. Ariyoshi, 63 Haw., at 144-145, 621 P. 2d, at 980-981.

       Petitioners assert that the hearings required by Rule IV not only enable the officials to gather information and thereby to exercise their discretion intelligently, but also have a therapeutic purpose: inmate participation in the decisionmaking process, it is hoped, reduces tension in the prison. See Tr. of Oral Arg. 52-53.

       In light of this conclusion, respondent’s claim of bias in the composition of the prison Program Committee becomes irrelevant.

       4 J. Elliott, Debates on the Federal Constitution 555 (1836). Whether it is called banishment, exile, deportation, relegation, or transportation, compelling a person “to quit a city, place, or country, for a specified period of time, or for life,” has long been considered a unique and severe deprivation, and was specifically outlawed by “[t]he twelfth section of the English Habeas Corpus Act, 31 Car. II, one of the three great muniments of English liberty.” United States v. Ju Toy, 198 U. S. 253, 269-270 (1905) (Brewer, J., dissenting).

       Thus in Meachum the Court stated that the State, by convicting the defendant, was “empowered] to confine him in any of its prisons,” 427 U. S., at 224 (emphasis deleted), that a “transfer from one institution to another within the state prison system” implicated no due process interest, id., at 225, and that “[confinement in any of the State’s institutions is within the normal limits or range of custody which the conviction has authorized the State to impose.” Ibid. See also Montanye, 427 U. S., at 242 (“We held in Meachum v. Fano, that no Due Process Clause liberty interest of a duly convicted prison inmate is infringed when he is transferred from one prison to another within the State”).

       U. S. Dept, of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics — 1981, Table 6.27, pp. 478-479 (T. Flanagan, D. Van Alstyne, & M. Gottfredson eds. 1982). These figures reflect “all inmates who were transferred from one State’s jurisdiction to another to continue sentences already in force,” and “[d]oes not include the release if [the] State does not relinquish jurisdiction.” Id., at 590.

       U. S. Dept. of Justice, Profile of State Prison Inmates: Sociodemo-graphic Findings from the 1974 Survey of Inmates of State Correctional Facilities 1 (1979). Over 70 percent of state inmates are held in institutions located less than 250 miles from their homes.

       But see Hewitt v. Helms, 459 U. S. 460, 488 (1983) (Stevens, J., dissenting) (Prison regulations-“provide evidentiary support for the conclusion that the transfer affects a constitutionally protected interest in liberty,” but they “do not create that interest” (emphasis in original)).

       Paragraph 1 of Rule IV provides:
      “An inmate’s/ward’s classification determines where he is best situated within the Corrections Division. Rather than being concerned with isolated aspects of the individual or punishment (as is the adjustment process), classification is a dynamic process which considers the individual, his history, his changing needs, the resources and facilities available to the Corrections Division, the other inmates/wards, the exigencies of the community, and any other relevant factors. It never inflicts punishment; on the contrary, even the imposition of a stricter classification is intended to be in the best interests of the individual, the State, and the community. In short, classification is a continuing evaluation of each individual to ensure that he is given the optimum placement within the Corrections Division.” App. 20.

       While the term “grievous loss” is not explicitly defined, the prison regulations treat a transfer to the mainland as a grievous loss entitling an inmate to the procedural rights established in-Rule IV, ¶ 3. This is readily inferred from Rule IV, ¶ 3, which states that intrastate transfers do not involve a grievous loss, and Rule V, which permits inmates to retain counsel only in specified circumstances, one of which is a reclassification that may result in an interstate transfer. App. 25.

       See 459 U. S., at 470-471, n. 6.

       See also Wright v. Enomoto, 462 F. Supp. 397 (ND Cal. 1976), summarily aff’d, 434 U. S. 1052 (1978). In that case, the District Court held that the language of a prison policy statement, stating that “[i]nmates may be segregated for medical, psychiatric, disciplinary, or administrative reasons,” 462 F. Supp., at 403, was sufficient to create a protected expectation that an inmate would not be segregated for arbitrary reasons. See also Bills v. Henderson, 631 F. 2d 1287, 1293 (CA6 1980), cert. denied, 449 U. S. 1093 (1981); Winsett v. McGinnes, 617 F. 2d 996, 107 (CA3 1980) (en banc).

       Rule IV, ¶3(d)(8), provides:
      “The facility administrator will, within a reasonable period of time, review the Program Committee’s recommendation. He may, as the final decisionmaker:
      “(a) Affirm or reverse, in whole or in part, the recommendation; or
      “(b) hold in abeyance any action he believes jeopardizes the safety, security, or welfare of the staff, inmate/ward, other inmates/wards, institution, or community and refer the matter back to the Program Committee for further study and recommendation.” App. 21.

       doubt that Rule IV would be construed to permit the Administrator to order a transfer for punitive reasons, since Rule IV expressly disallows punitive transfers.

       That provision stated: “All decisions of the Program Review Committee shall be reviewed by the Superintendent for his sustaining the decision or amending or reversing the decision in favor of the inmate.” Pennsylvania Bureau of Correction Administrative Directive BC-ADM 801, Rule 111(H)(7). App. to Brief for Respondent in Hewitt v. Helms, O. T. 1982, No. 81-638, p. 12a. Because an inmate could be confined in administrative custody only if the Program Review Committee determined that such confinement is and continues to be “appropriate,” id., at 18a, the Superintendent in Helms was the “decisionmaker,” ante, at 249-250, who determined whether inmates would be held in administrative custody.

       This view was also implicitly rejected in Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979). The Court held that the Nebraska statute governing the decision whether or not to grant parole created a “pro-teetible entitlement,” id., at 12, even though the statute, which listed a number of factors to be considered in the parole decision, also authorized the Parole Board to deny parole on the basis of “[a]ny other factors the board determines to be relevant.” Id., at 18.
      To the extent that Lono v. Ariyoshi, 63 Haw. 138, 144-145, 621 P. 2d 976, 980-981 (1981), on which the majority relies, ante, at 249, suggests that no liberty interest is created as state law has not entirely eliminated the possibility of arbitrary action, it is inconsistent with both Helms and Greenholtz.


source: Caselaw Access Project

author: Chief Justice Burger

license: Public Domain

text:
    JIM McNEFF, INC. v. TODD et al.
    No. 81-2150.
    Argued January 17, 1983
    Decided April 27, 1983

      Burger, C. J., delivered the opinion for a unanimous Court.

      James T. Winkler argued the cause for petitioner. With him on the briefs was Steven D. Atkinson.

      Wayne Jett argued the cause for respondents. With him on the brief was Julius Reich

        Richard P. Markey filed a brief for Associated Builders and Contractors Inc. as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed by Solicitor General Lee, Deputy Solicitor General Wallace, Barbara E. Etkind, and T. Timothy Ryan, Jr., for the United States; by J. Albert Woll, Laurence J. Cohen, Laurence Gold, and George Kaufmann for the American Federation of Labor and Congress of Industrial Organizations et al.; by Denis F. Gordon for the National Coordinating Committee for Multiemployer Plans; by John H. Stephens, George M. Cox, and Michael Futch for the Carpenters Trust Funds for Southern California et al.; and by Daniel L. Stewart for the Loyola of Los Angeles Law Review.

   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to resolve conflicts in the Circuits as to whether monetary obligations that have accrued under a prehire contract authorized by § 8(f) of the National Labor Relations Act, 73 Stat. 545, 29 U. S. C. § 158(f), can be enforced, prior to the repudiation of such a contract, in a suit brought by a union against an employer under §301 of the Labor Management Relations Act, 61 Stat. 156, 29 U. S. C. § 185, absent proof that the union represented a majority of the employees.

I

Petitioner is engaged in the construction industry and, in September 1978, was a subcontractor on a jobsite in southern California. The general contractor was contractually bound to the Master Labor Agreement negotiated between the International Union of Operating Engineers, Local No. 12, and the Southern California General Contractors Associations. The Master Labor Agreement provided that work at the jobsite was to be performed only by subcontractors who had signed a labor agreement with the Union. The Master Labor Agreement also contained a union security clause requiring covered employees, including those of subcontractors, to become members of the Union. At the time petitioner began work on the jobsite as a subcontractor, it was not a signatory to a labor agreement with the Union and none of its employees on the jobsite were members of the Union.

On September 13, 1978, petitioner’s president, McNeff, was approached on the jobsite by a representative of the Union who informed him that in order to remain on the project he was required to sign the Master Labor Agreement. McNeff refused. Later that day, the Union representative returned with a representative of the general contractor who also informed McNeff that he was required to sign the agreement in order to remain on the project. McNeff then signed the agreement on behalf of petitioner. Petitioner’s employees signed union cards that same day.

The Master Labor Agreement required petitioner to make monthly contributions to fringe benefit trust funds on behalf of each covered employee. From October 1978 through March 1979 petitioner submitted required monthly reports to the trust funds, but made no contributions. Each form was submitted by petitioner with the false notation that “no members of this craft were employed during this month.” In November 1978, after petitioner had filed the first of such reports, respondents, the trustees of the funds, requested permission from petitioner to audit its records to verify the statements made in its monthly report. Petitioner purported to agree, but postponed the audit several times. On April 4, 1979, respondents brought this suit under §301 of the Labor Management Relations Act, 29 U. S. C. § 185, to compel an accounting and payment of any contributions found to be due the trust funds. An audit performed in pretrial discovery proceedings revealed that petitioner had five employees covered by the agreement during the period October 1978 through March 1979 and therefore owed a total of $5,316.79 in trust fund contributions for that period.

The District Court for the Central District of California granted respondents’ motion for summary judgment and ordered payment of the unpaid trust fund contributions. The Court of Appeals for the Ninth Circuit affirmed. 667 F. 2d 800 (1982).

We granted certiorari, 458 U. S. 1120 (1982), in part to resolve Circuit conflicts on this issue, and we affirm.

II

By authorizing so-called “prehire” agreements like that at issue in this case, § 8(f) of the National Labor Relations Act, 29 U. S. C. § 158(f), exempts construction industry employers and unions from the general rule precluding a union and an employer from signing “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.” NLRB v. Iron Workers, 434 U. S. 335, 344-345 (1978) (Higdon). See Garment Workers v. NLRB, 366 U. S. 731, 737-738 (1961). Section 8(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 9 of this Act prior to the making of such agreement. . . : Provided . . . 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).” 73 Stat. 545.

Thus, § 8(f) allows construction industry employers and unions to enter into agreements setting the terms and conditions of employment for the workers hired by the signatory employer without the union’s majority status first having been established in the manner provided for under § 9 of the Act. One factor prompting Congress to enact § 8(f) was the uniquely temporary, transitory, and sometimes seasonal nature of much of the employment in the construction industry. Congress recognized that construction industry unions often would not be able to establish majority support with respect to many bargaining units. See S. Rep. No. 187, 86th Cong., 1st Sess., 55-56 (1959), 1 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, pp. 451-452 (Leg. Hist.). Congress was also cognizant of the construction industry employer’s need to “know his labor costs before making the estimate upon which his bid will be based” and that “the employer must be able to have available a supply of skilled craftsmen for quick referral.” H. R. Rep. No. 741, 86th Cong., 1st Sess., 19 (1959), 1 Leg. Hist. 777. See generally, Higdon, supra, at 348-349.

We first addressed the enforceability of a § 8(f) prehire agreement in Higdon. In response to the employer’s violation of a prehire agreement, the minority union in that case picketed the employer for more than 30 days without filing an election petition. The National Labor Relations Board concluded that such picketing violated § 8(b)(7)(C). Section 8(b)(7)(C) was intended to ensure voluntary, uncoerced selection of a bargaining representative by employees; unless a union is the certified representative of the employees in the relevant unit, it prohibits picketing to force an employer “to recognize or bargain with a labor organization as the representative of his employees.” In Higdon, we affirmed the Board’s view that a prehire agreement does not make a union the “representative of [an employer’s] employees” as that language is used in § 8(b)(7)(C):

“[Absent] majority credentials . . . , 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 élection within 30 days.” 434 U. S., at 346.

III

We did not decide in Higdon whether prehire agreements are enforceable in a § 301 action. There is a critical distinction between an employer’s obligation under the Act to bargain with the representative of the majority of its employees and its duty to satisfy lawful contractual obligations that accrued after it enters a prehire contract. Only the former obligation was treated in Higdon.

In upholding the Board’s view that a union commits an unfair labor practice by picketing to enforce a prehire agreement before it has attained majority status, we noted in Higdon that this view protects two interests that Congress intended to uphold when it enacted § 8(f). First, our holding in Higdon protects the § 7 rights of employees to select their own bargaining representative. To be sure, § 8(f) affects the § 7 rights of employees by allowing a minority union to reach an agreement with the employer setting the terms and conditions of employment. This is the direct and intended consequence of § 8(f) and, in any event, is limited by the final proviso in § 8(f) that permits employees — and other parties mentioned in §§ 9(c) and (e) of the Act — to challenge a prehire agreement at any time by petitioning the Board for a. representative election. If, however, an employer could be compelled by picketing to treat a minority union as the exclusive bargaining agent of employees, the § 7 rights of those employees would be undermined to an extent not contemplated by Congress. As we noted in Higdon, 434 U. S., at 338, a union that is the certified representative of the employees in the relevant unit does not commit an unfair labor practice under § 8(b)(7)(C) by picketing to compel compliance with a collective-bargaining agreement. Consequently, freeing a minority union from the confines of § 8(b)(7)(C) would grant that union power otherwise accorded only to certified bargaining representatives chosen by a majority of the affected employees. It is up to those employees to decide what organization, if any, will enter into a collective-bargaining agreement on their behalf and have the consequent right to engage in picketing, if necessary, to enforce it; the union signatory to a prehire agreement cannot arrogate such power to itself until it “successfully seeks majority support.” Higdon, supra, at 350.

Second, our decision in Higdon promotes Congress’ “intention . . . that prehire agreements were to be arrived at voluntarily . . . .” Higdon, 434 U. S., at 348, n. 10. In accord with this intention, we approved the Board’s conclusion that a “prehire agreement is voidable” “until and unless [the union] attains majority support in the relevant unit.” Id., at 341. Allowing the union to picket to enforce a prehire agreement before it attains majority status is plainly inconsistent with the voidable nature of a prehire agreement.

The concerns with the §7 rights of employees to select their own bargaining representative and our fidelity to Congress’ intent that prehire agreements be voluntary — and voidable — that led to our decision in Higdon are not present in this case. Union enforcement, by way of a § 301 suit, of monetary obligations incurred by an employer under a prehire contract prior to its repudiation does not impair the right of employees to select their own bargaining agent. Unlike the situation in Higdon, enforcement of accrued obligations in a § 301 suit does not mean that the union represents a majority of the employer’s employees. In a §301 suit, the District Court merely enforces a contract entered into by the employer — a contract that Congress has legitimated to meet a special situation even though employees themselves have no part in its negotiation or execution. Such enforcement does not grant the plaintiff union a right otherwise enjoyed only by a majority union except in the very narrow sense, expressly intended by Congress, that employers and minority unions in the construction industry do not violate the Act by entering into prehire agreements. There is no sense in which respondents’ contract action has a recognitional purpose like that forbidden in Higdon.

Neither does respondents’ § 301 action trench on the voluntary and voidable characteristics of a § 8(f) prehire agreement. It is clear in this case that petitioner entered into the prehire agreement voluntarily. Moreover, although the voidable nature of prehire agreements clearly gave petitioner the right to repudiate the contract, it is equally clear that petitioner never manifested an intention to void or repudiate the contract. For the relevant period of time, the record shows conclusively that petitioner accepted the benefits of the prehire agreement and misled the union of its true intention never to fulfill its contractual obligations. Whatever may be required of a party wishing to exercise its undoubted right to repudiate a prehire agreement before the union attains majority support in the relevant unit, no appropriate action was taken by petitioner to do so in this case. Consequently, respondents’ suit does not enervate the voluntary and voidable characteristics of the prehire agreement.

Apart from not offending the concerns noted in Higdon, allowing a minority union to enforce overdue obligations accrued under a prehire agreement prior to its repudiation vindicates the policies Congress intended to implement in § 8(f). Congress clearly determined that prehire contracts should be lawful to meet problems unique to the construction industry. However limited the binding effect of a prehire agreement may be, it strains both logic and equity to argue that a party to such an agreement can reap its benefits and then avoid paying the bargained-for consideration. Nothing in the legislative history of § 8(f) indicates Congress intended employers to obtain free the benefits of stable labor costs, labor peace, and the use of the union hiring hall. Having had the music, he must pay the piper.

By the same token, the union cannot simply accept the employer’s performance under a prehire contract without upholding its end of the bargain. Neither party is compelled to enter into a § 8(f) agreement. But when such an agreement is voluntarily executed, both parties must abide by its terms until it is repudiated.

IV

A § 8(f) prehire agreement is subject to repudiation until the union establishes majority status. However, the monetary obligations assumed by an employer under a prehire contract may be recovered in a §301 action brought by a union prior to the repudiation of the contract, even though the union has not attained majority support in the relevant unit. There having been no repudiation in this case, the judgment of the Court of Appeals is

Affirmed.

       Article IV, § D, of the agreement provides:
      “The Contractor agrees that neither he nor any of his subcontractors on the jobsite will subcontract any work to be done at the site of construction, alteration, painting or repair of a building, structure or other work (including quarries, rock, sand and gravel plants, asphalt plants, ready-mix concrete plants, established on or adjacent to the jobsite to process or supply materials for the convenience of the Contractor for jobsite use), except to a person, firm or corporation, party to an appropriate, current labor agreement with the appropriate Union, or subordinate body signatory to this Agreement.” App. 39.

       Article II, §§ D and E, of the agreement provide:
      “D. Employees employed by one or more of the Contractors for a period of eight (8) days continuously or accumulatively under the work jurisdiction of a particular Union as that term is defined herein shall be or become on the eighth (8th) day or eight (8) days after the effective date of this Agreement, whichever is later, members of such Union and shall remain members of such Union as a condition of continued employment. Membership in such Union shall be available upon terms and qualifications not more burdensome than those applicable at such times to other applicants for membership to such Union.
      “E. The Contractor shall discharge any employee pursuant to the foregoing section upon written notice from the Union of such employee’s nonpayment of initiation fees or dues.” App. 38.

       Specifically, petitioner entered into an agreement that adopted the Master Labor Agreement “in its entirety,” with certain exceptions that are not relevant to this case. Id., at 9-13.

       The agreement provides:
      “The undersigned employer by his signature acknowledges receipt of a true and correct copy of the Agreement establishing the Operating Engineers Trusts:
      “AND, further by his signature, accepts all of the terms and conditions of said Trust Agreements and agrees to be bound thereto in every way, including the obligation to make periodic contributions and payments pursuant to the requirement of the Board of Trustees consistent with said Trust Agreements and the Collective Bargaining Agreement between said employer and Local 12, International Union of Operating Engineers.” Id., at 12-13.
      The record shows that McNeff initialed petitioner’s acceptance of the following trust fund obligations: (1) pension trust; (2) health and welfare trust; (3) vacation-holiday trust; (4) apprentice trust; (5) journeyman training trust; and (6) industry fund trust. Id., at 13.

       Section 301(a) provides:
      “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” 61 Stat. 156.

       Compare Washington Area Carpenters’ Welfare Fund, v. Overhead Door Co. of Metropolitan Washington, 220 U. S. App. D. C. 273, 681 F. 2d 1 (1982); 667 F. 2d 800 (CA9 1982) (case below); W. C. James, Inc. v. Oil, Chemical & Atomic Workers International Union, 646 F. 2d 1292 (CA8 1981); New Mexico District Council of Carpenters v. Mayhew Co., 664 F. 2d 215 (CA10 1981); and Contractors, Laborers, Teamsters & Engineers Health & Welfare Plan v. Associated Wrecking Co., 638 F. 2d 1128 (CA8 1981), with Laborers District Council of Alabama v. McDowell Contractors, Inc., 680 F. 2d 94 (CA11 1982), and Baton Rouge Building & Construction Trades Council v. E. C. Schafer Construction Co., 657 F. 2d 806 (CA5 1981).

       In Higdon, we addressed the question whether holding a prehire contract to be unenforceable in a § 301 suit would be contrary to Retail Clerks v. Lion Dry Goods, Inc., 369 U. S. 17 (1962). In Lion Dry Goods the Court stated that § 301(a) confers jurisdiction on the federal courts to entertain suits on contracts between an employer and a minority union, as well as suits on contracts between an employer and actual collective-bargaining agents. Section 8(f) contracts were noted as being within a federal court’s § 301(a) jurisdiction. Id., at 29. In Higdon, we merely noted that “[i]t 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 . . . and that absent a showing that the union is the majority’s chosen instrument, the contract is unenforceable.” 434 U. S., at 361-362. This statement was intended to show that the question of jurisdiction under §301 is different from the question of enforceability of a prehire agreement in a § 301 action. We did not decide the latter question.

       Section 7 of the Act, 29 U. S. C. § 157, guarantees employees the right to bargain collectively through representatives of their own choosing. Section 9(a) of the Act, 29 U. S. C. § 159(a), provides that the bargaining agent for all 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 an unfair labor 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. See generally Garment Workers v. NLRB, 366 U. S. 731 (1961).

       There is no merit to petitioner’s claim that it was coerced into entering the agreement. Petitioner was simply informed that the general contractor on the jobsite was bound by a union signatory subcontracting clause in its collective-bargaining agreement with the Union. That clause required petitioner to enter into a similar agreement with the Union if it wanted to stay on the jobsite. Such clauses are lawful under the construction industry proviso of § 8(e) of the Act, 29 U. S. C. § 168(e). As we said in Woelke & Romero Framing, Inc. v. NLRB, 456 U. S. 645 (1982), whatever pressures petitioner complains of as a result of the union signatory subcontracting clause are “implicit in the construction industry proviso.” Id., at 663. Petitioner cannot rely on such “pressure,” made lawful by the construction industry proviso, to support its contention that it entered the prehire agreement at issue in this case involuntarily.

       The only time period relevant to this case is that between September 13, 1978 (the date the prehire agreement was entered into), and April 26, 1979 (the date respondents’ § 301 suit was filed). The District Court entered judgment for respondents for the trust fund obligations incurred by petitioner for this period of time only. App. to Pet. for Cert. 10-11. Respondents did not appeal the amount of their recovery.

       It is not necessary to decide in this case what specific acts would effect the repudiation of a prehire agreement — sending notice to the union, engaging in activity overtly and completely inconsistent with contractual obligations, or, as respondents suggest, precipitating a representation election pursuant to the final proviso in § 8(f) that shows the union does not enjoy majority support.

       Petitioner received another benefit not expressly contemplated by Congress. Here, the Union had a collective-bargaining agreement with the general contractor requiring that work at the jobsite was to be performed only by subcontractors who had signed an agreement with the Union. See n. 1, supra. Thus, the direct consequence of petitioner’s entering into the prehire agreement was to enable petitioner to remain on the job.

       We need not consider in this case whether considerations properly cognizable by a court under § 301 might prevent either party, in particular circumstances, from exercising its option under § 8(f) to repudiate a prehire agreement before the union demonstrates majority status.