author: Justice Marshall

text:
    WOELKE & ROMERO FRAMING, INC. v. NATIONAL LABOR RELATIONS BOARD et al.
    No. 80-1798.
    Argued March 3, 1982
    Decided May 24, 1982

      Marshall, J., delivered the opinion for a unanimous Court.

      John W. Prager, Jr., argued the cause for petitioner in No. 80-1798. With him on the briefs was Dwight L. Armstrong.

      Lems K. Scott argued the cause for petitioners in Nos. 80-1808 and 81-91. With him on the briefs for petitioner in No. 81-91 was David H. Wilson, Jr. Thomas M. Triplett filed briefs for petitioner in No. 80-1808.

      Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Lee, Elinor Hadley Stillman, Linda Sher, and John H. Ferguson.

      Laurence Gold argued the cause for respondent unions. With him on the brief were Abe F. Levy, Gordon K. Hubei, Richard R. Carney, Laurence J. Cohen, and George Kaufmann.

      Together with No. 80-1808, Pacific Northwest Chapter of the Associated Builders & Contractors, Inc. v. National Labor Relations Board et al.; and No. 81-91, Oregon-Columbia Chapter, Associated General Contractors of America, Inc. v. National Labor Relations Board et al., also on certiorari to the same court.

       Briefs of amici curiae urging reversal were filed by Kenneth C. McGuiness, Robert E. Williams, and Daniel R. Levinson for the Air Conditioning and Refrigeration Institute et al.; by Richard P. Markey for Associated Builders and Contractors; by Peter G. Nash for Associated General Contractors of America, Inc.; and by Vincent J. Apruzzese, Francis A. Mastro, Lawrence B. Kraus, and Stephen A. Bokat for the Chamber of Commerce of the United States of America.
      Briefs of amici curiae were filed by Gerard C. Smetana for Donald Schriver, Inc., et al.; by Michael C. Murphy and Hugh M. Davenport for Georgia Power Co.; by Peter R. Spanos for the National Association of Home Builders; and by Rex H. Reed and Joseph J. Hahn for the National Right to Work Legal Defense Foundation.

   Justice Marshall

delivered the opinion of the Court.

In these consolidated cases, petitioners ask us to decide whether union signatory subcontracting clauses that are sought or negotiated in the context of a collective-bargaining relationship are protected by the construction industry proviso to §8(e) of the National Labor Relations Act (Act), 29 U. S. C. § 158(e). Such clauses bar subcontracting except to subcontractors who are signatories to agreements with particular unions. Petitioners also ask us to decide whether a union violates § 8(b)(4)(A) of the Act, 29 U. S. C. § 158 (b)(4)(A), when it pickets to obtain a lawful subcontracting clause.

The United States Court of Appeals for the Ninth Circuit held that subcontracting clauses sought or negotiated in the context of a collective-bargaining relationship are protected by the construction industry proviso even when not limited in application to particular jobsites at which both union and nonunion workers are employed. It further held that picketing to obtain such clauses does not violate § 8(b)(4)(A). See 654 F. 2d 1301 (1981) (en banc). We affirm the holding that the subcontracting clauses at issue here are protected by the construction industry proviso. Because we conclude that the Court of Appeals did not have jurisdiction to consider the picketing question, we do not review that portion of its decision.

I

A

These cases arise out of two separate labor disputes. The first involves petitioner Woelke & Romero Framing, Inc. (Woelke), a framing subcontractor in the construction industry in southern California. From July 1974 to June 1977, Woelke was party to a collective-bargaining agreement with respondent United Brotherhood of Carpenters and Joiners of America (Carpenters). Shortly before this agreement was to expire, Woelke and Carpenters commenced bargaining for the purpose of negotiating a successor agreement. In August 1977, however, the parties reached an impasse over Carpenters’ demand for a union signatory subcontracting clause. This clause would have prohibited Woelke from subcontracting work at any construction jobsite “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.” 1 App. 86.

In support of Carpenters’ demand for a subcontracting clause, two Carpenters locals picketed Woelke’s construction sites, causing some work stoppages. Woelke filed unfair labor practice charges with the National Labor Relations Board, asserting that the subcontracting clause violated § 8(e) of the Act, which proscribes secondary agreements between unions and employers — that is, agreements that require an employer to cease doing business with another party, in order to influence the labor relations of that party. Woelke argued that because the clause violated § 8(e), Carpenters’ picketing in support of that restriction violated § 8(b)(4)(A), 29 U. S. C. § 158(b)(4)(A).

The Board agreed that the union signatory subcontracting clauses at issue were secondary in thrust. It ruled, however, that they were saved by the construction industry proviso to §8(e), which exempts agreements between a union and employer concerning work to be performed at a construction jobsite. The Board rejected Woelke’s contention that subcontracting clauses are sheltered by the proviso only if they are limited in application to particular jobsites at which both union and nonunion workers are employed. According to the Board, such clauses are lawful whenever they are sought or negotiated “in the context of a collective bargaining relationship.” Carpenters Local No. 944 (Woelke & Romero Framing, Inc.), 239 N. L. R. B. 241, 250 (1978), citing Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S. 616 (1975). The Board further indicated that since the subcontracting clauses were lawful, picketing to obtain a subcontracting proposal was permitted under § 8(b)(4)(A). Carpenters Local No. 944, supra, at 251.

B

The second dispute concerns a collective-bargaining agreement between petitioner Oregon-Columbia Chapter of the Associated General Contractors of America, Inc. (Oregon AGC), and respondent Local 701 of the International Union of Operating Engineers, AFL-CIO (Engineers). Oregon AGC is an association of approximately 200 construction industry employers in Oregon and southwest Washington. Since 1960, the contract between Oregon AGC and the Engineers has contained a subcontracting clause prohibiting Oregon AGC from subcontracting construction jobsite work to “any person, firm or company who does not have an existing labor agreement with the [Engineers] Union covering such work.” 2 App. 9-10; see id., at 12. In addition, the agreement authorized Engineers to take “such action as they deem necessary,” including strikes and other economic self-help, to enforce awards obtained through the grievance and arbitration process on matters covered by the agreement. Id., at 10.

In April 1977, petitioner Pacific Northwest Chapter of the Associated Builders and Contractors, Inc. (Pacific Northwest), a member of Oregon AGC, filed unfair labor practice charges, asserting that the contract between the Oregon AGC and the Engineers violated §8(e). Relying on the same reasoning employed in Carpenters Local No. 944, the Board held that the union signatory subcontracting clauses, standing alone, would be protected by the construction industry proviso. International Union of Operating Engineers, Local No. 701 (Pacific Northwest Chapter of Associated Builders & Contractors, Inc.), 239 N. L. R. B. 274, 277 (1978). With one member dissenting, however, it decided that the provision of the contract permitting the union to enforce the subcontracting clause was not protected by the proviso. Id., at 276.

C

Woelke, Oregon AGC, and Pacific Northwest all sought review of the Board’s orders in the Court of Appeals. The Ninth Circuit panel consolidated the cases and reversed the Board’s decisions. It reasoned that the proviso was designed solely to minimize friction between union and nonunion workers employed at the same jobsite. Thus, the proviso shelters subcontracting clauses “only where a collective bargaining relationship exists and even then only when the employer or his subcontractor has employees who are members of the signatory union at work at some time at the jobsite at which the employer wishes to engage a nonunion subcontractor.” 609 F. 2d 1341, 1347 (1979) (three-judge panel). Because it found that the clauses were unlawful, it did not reach the questions whether picketing or striking either to obtain or enforce a valid subcontracting clause was lawful. Id., at 1351.

At respondents’ request, the cases were reheard en banc. The en banc panel decided to enforce the Board’s orders in their entirety. 654 F. 2d 1301 (1981). The majority held that union signatory subcontracting clauses are protected so long as they are sought or negotiated in the context of a collective-bargaining relationship. Id,., at. 1322. It further held that economic pressure may be used to obtain a subcontracting agreement, but that it may not be employed to enforce a subcontracting agreement. Id., at 1323-1324.

Woelke, Oregon AGC, and Pacific Northwest asked this Court to review the conclusion that the subcontracting agreements sought by respondents are protected by the construction industry proviso. Woelke also asked this Court to decide whether unions violate § 8(b)(4)(A) when they picket to obtain lawful subcontracting clauses. We granted certiorari. 454 U. S. 814 (1981).

H

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Section 8(e), which was added to the Act by the 1959 Landrum-Griffin Act, Pub. L. 86-257, 73 Stat. 543-544, 29 U. S. C. § 158(e), states:

“It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void.”

The union subcontracting clauses at issue here fall within the general prohibition of § 8(e); they require the general contractor to boycott the services of nonunion subcontractors in order to influence the labor relations policies of the subcontractor. The construction industry proviso to § 8(e) states, however, that

“nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work.”

Thus, the question we must answer here is whether the union signatory subcontracting clauses sought or obtained by respondent unions are protected by this proviso.

Read literally, the proviso would seem to shelter the subcontracting agreements — it expressly states that § 8(e) does not apply to agreements that limit the contracting of construction site work. In Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S., at 628, however, this Court warned that § 8(e) “must be interpreted in light of the statutory setting and the circumstances surrounding its enactment.” In that case, the Court decided that the proviso did not exempt subcontracting agreements that were not sought or obtained in the context of a collective-bargaining relationship, even though they were covered by the plain language of the statute. The Court reasoned that Congress did not intend to authorize such agreements.

The subcontracting clauses at issue here were sought or negotiated in the context of collective-bargaining relationships. Petitioners argue, however, that we should further confine the scope of the proviso. They contend that Congress designed the proviso to solve the problems that arise when union and nonunion workers are employed at the same jobsite. Thus, it should be interpreted to protect only those agreements that are limited in application to construction projects where both union and nonunion workers are employed.

After examining the construction industry proviso “in light of the statutory setting and the circumstances surrounding its enactment,” Connell Construction Co., supra, at 628, we conclude that it should not be confined as petitioners suggest. The legislative history of § 8(e) and the construction industry proviso clearly indicates that Congress intended to protect subcontracting clauses like those at issue here.

B

Prior to 1959, there were gaps in the existing protections against secondary boycotts. In Carpenters v. NLRB, 357 U. S. 93 (1958) (Sand Door), this Court held that a union could not engage in strikes or other concerted activity to enforce “hot cargo” agreements — agreements that required employers to boycott the goods or services of another party with whom the union had a dispute. However, Sand Door indicated that employers and unions were free to enter into hot cargo agreements, and that compliance was lawful so long as it was voluntary. Id., at 108.

Section 8(e), which prohibits hot cargo agreements, was designed to eliminate the loophole created by the Sand Door decision. See Connell Construction Co., supra, at 628. See also National Woodwork Manufacturers Assn. v. NLRB, 386 U. S. 612, 634 (1967). The provision represents a compromise between bills reported out by the Senate and House. The Senate bill would have outlawed hot cargo agreements only in the trucking industry. 105 Cong. Rec. 6556 (1959), 2 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, pp. 1161— 1162 (1959) (Leg. Hist.). The legislation proposed by the House — the Landrum-Griffin bill — was much broader. It made it an unfair labor practice for any labor organization and any employer to enter into an agreement whereby the employer agrees to “cease doing business with any other person.” H. R. 8400, 86th Cong., 1st Sess., § 705(b)(1) (1959), 1 Leg. Hist. 683. The Conference Committee decided to adopt the House bill. However, the Senate conferees insisted on a proviso that exempted hot cargo agreements in the garment industry, and also agreements relating to work to be done at the site of a construction project. 105 Cong. Rec. 17899 (1959), 2 Leg. Hist. 1432.

The legislative history contains several references to the construction industry proviso. After noting that the proviso extends only to work to be performed at the site of the construction, the Conference Report states:

“The committee of conference does not intend that this proviso should be construed so as to change the present state of the law with respect to the validity of this specific type of agreement relating to work to be done at the site of the construction project or to remove the limitations which the present law imposes with respect to such agreements. Picketing to enforce such contracts would be illegal under the Sand Door case (Local 1976, United Brotherhood of Carpenters v. NLRB, 357 U. S. 93 (1958)). To the extent that such agreements are legal today under section 8(b)(4) of the National Labor Relations Act, as amended, the proviso would prevent such legality from being affected by section 8(e).” H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 39 (1959), 1 Leg. Hist. 943 (emphasis added).

Senator John F. Kennedy, who was chairman of the Conference Committee, provided a similar explanation during subsequent congressional debate.

“The first proviso under new section 8(e) of the National Labor Relations Act is intended to preserve the present state of the law with respect to picketing at the site of a construction project and with respect to the validity of agreements relating to the contracting of work to be done at the site of the construction project.” 105 Cong. Rec. 17900 (1959), 2 Leg. Hist. 1433.

Senator Kennedy also said:

“The Landrum-Griffin bill extended the ‘hot cargo’ provisions of the Senate bill, which we applied only to Teamsters, to all agreements between an employer and a labor union by which the employer agrees not to do business with another concern. The Senate insisted upon a qualification for the clothing and apparel industries and for agreements relating to work to be done at the site of a construction project. Both changes were necessary to avoid serious damage to the pattern of collective bargaining in these industries.” 105 Cong. Rec. 17899 (1959), 2 Leg. Hist. 1432.

Other legislators expressed similar views. They emphasized that the final bill would not change the law with respect to construction site subcontracting agreements. See 105 Cong. Rec. 18128 (1959), 2 Leg. Hist. 1715 (remarks of Rep. Barden); 105 Cong. Rec. 18135 (1959), 2 Leg. Hist. 1721 (remarks of Rep. Thompson); 105 Cong. Rec. 19849 (1959), 2 Leg. Hist. 1823 (postenactment memorandum by Sen. Dirksen); 105 Cong. Rec. 19772 (1959), 2 Leg. Hist. 1858 (post-enactment memorandum by Sen. Goldwater).

These statements reveal that Congress wished “to preserve the status quo” regarding agreements between unions and contractors in the construction industry. National Woodwork Manufacturers Assn., supra, at 637. To the extent that subcontracting agreements were part of the pattern of collective bargaining in the construction industry, and lawful, Congress wanted to ensure that they remained lawful. Given this expression of legislative intent, we can determine whether the clauses challenged in these cases are within the scope of the proviso — or whether petitioners’ narrow interpretation of the proviso is appropriate — by examining Congress’ perceptions regarding the status quo in the construction industry.

There is ample evidence that Congress believed that union signatory contract clauses of the type at issue here were part of the pattern of collective bargaining in the construction industry. Comments made by Senator Kennedy clearly indicate that he believed broad subcontracting agreements were legal in 1959:

“Agreements by which a contractor in the construction industry promises not to subcontract work on a construction site to a nonunion contractor appear to be legal today. They will not be unlawful under section 8(e). The proviso is also applicable to all other agreements involving undertakings not to do work on a construction project site with other contractors or subcontractors regardless of the precise relation between them.” 105 Cong. Rec. 17900 (1959), 2 Leg. Hist. 1433.

Senator Kennedy’s views were shared by other legislators. Senator Curtis, testifying before the Senate Labor Committee, stated that broad subcontracting agreements were not illegal, and were used “extensively” by the building trades unions. Labor-Management Reform Legislation: Hearings on S. 505, S. 748, S. 76, S. 1002, S. 1137, and S. 1311 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 86th Cong., 1st Sess., 752 (1959) (Senate Hearings). The House Labor Committee heard similar testimony. Representatives of an employer and an independent union complained that employers and unions could lawfully enter into subcontracting clauses, and that, as a result, employers whose employees had selected another union were denied any opportunity to compete for construction jobs. They described agreements very similar to those at issue here. Labor-Management Reform Legislation: Hearings on H. R. 3540, H. R. 3302, H. R. 4473, and H. R. 4474 before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., 1st Sess., 2363 (1959) (statement of Howard Lane) (House Hearings); id,., at 2365-2366 (statement of Edward M. Carlton).

Petitioners argue that Congress’ perception of the status quo was inaccurate. According to petitioners, subcontracting clauses were not extensively used in the construction industry prior to 1959, and neither the Board nor the courts had ruled that such clauses were lawful. However, “the relevant inquiry is not whether Congress correctly perceived the then state of the law, but rather what its perception of the state of the law was.” Brown v. GSA, 425 U. S. 820, 828 (1976). In any event, Congress’ belief that subcontracting agreements were common and lawful was accurate.

The Board and the United States Court of Appeals for the District of Columbia Circuit had upheld broad subcontracting clauses. See Associated General Contractors of America, Inc. (St. Maurice, Helmkamp & Musser), 119 N. L. R. B. 1026 (1957), review denied and enf’d sub nom. Operating Engineers Local Union No. 3 v. NLRB, 105 U. S. App. D. C. 307, 266 F. 2d 905, cert. denied sub nom. St. Maurice, Helmkamp & Musser v. NLRB, 361 U. S. 834 (1959). Significantly, petitioners are unable to point to any pre-1959 cases in which a subcontracting agreement was found to be unlawful because it was not limited to particular jobsites at which the signatory union workers were employed.

A report published in 1961, which examined “the prevalence and characteristics of subcontracting provisions in effect in 1959 in the construction industry,” indicates that broad subcontracting agreements were quite common. Lunden, Subcontracting Clauses in Major Contracts, 84 Monthly Lab. Rev. 579 (1961). The study examined 155 construction contracts, covering 700,000 construction workers, and found that 444,000 of those workers were employed under contracts with subcontracting provisions. Id., at 582. The most frequent requirement, found in more than 50 major contracts, obligated contractors to subcontract work only to subcontractors who would apply all the “terms and conditions” of the master agreement. Id., at 715-716. The Lunden report does not describe a single agreement that limited the applicability of a subcontracting restriction to jobsites at which both union and nonunion workers were employed.

In short, Congress believed that broad subcontracting clauses similar to those at issue here were part of the pattern of collective bargaining prior to 1959, and that the Board and the courts had found them to be lawful. This perception was apparently accurate. Thus, endorsing the clauses at issue here is fully consistent with the legislative history of § 8(e) and the construction industry proviso.

r — H HH H-l

Petitioners attach little significance to the legislative history we have just described. Instead, they focus on congressional references to this Court’s decision in NLRB v. Denver Building & Construction Trades Council, 341 U. S. 675 (1951) (Denver Building Trades), which they believe support their narrow interpretation of the proviso. They also contend that if the clause is interpreted to protect any subcontracting agreements sought or obtained in the context of a collective-bargaining agreement, unions will have a potent organizational weapon. However, neither of these arguments compels the adoption of a restricted interpretation of the proviso.

A

Petitioners contend that Congress adopted the construction industry proviso primarily because it wanted to overrule this Court’s decision in Denver Building Trades, supra. That case held that picketing a general contractor’s entire project in order to protest the presence of a nonunion subcontractor is an illegal secondary boycott. According to petitioners, Congress disliked the Denver Building Trades rule because it might lead to uneasy employee relationships on the jobsite: if union workers were forced to work alongside nonunion workers, friction might result. Given this congressional purpose, the proviso should be interpreted as permitting only those subcontracting agreements that are designed to reduce friction at particular jobsites.

Petitioners are correct in suggesting that the decision in Denver Building Trades contributed to Congress’ decision to adopt the construction industry proviso. See Connell Construction Co., 421 U. S., at 629. At the time Congress was considering the proper scope of § 8(e), it had before it several proposals that would have effectively overruled the Denver Building Trades decision. See, e. g., § 702(d) of H. R. 8342, 86th Cong., 1st Sess. (1959), 1 Leg. Hist. 752-753 (Elliot bill). “It was partly in this frame of reference that the [construction industry] proviso to Section 8(e) was written.” 105 Cong. Rec. 20005 (1959), 2 Leg. Hist. 1861 (remarks of Rep. Kearns).

It is clear, however, that those who wished to overrule Denver Building Trades were concerned about more than the possibility of jobsite friction. Critics of Denver Building Trades complained that contractors and subcontractors working together on a single construction project are not the sort of neutral parties that the secondary boycott provisions were designed to protect. They pointed out that the Denver Building Trades rule denied construction workers the right to engage in economic picketing at their place of employment. And they emphasized that the employees of various subcontractors have a close community of interest, and that the wages and working conditions of one set of employees may affect others. In fact, as the Court of Appeals noted, the problem of jobsite friction between union and nonunion workers received relatively little emphasis. See 654 F. 2d, at 1319.

The proviso helps mitigate the impact of the Denver Building Trades decision: although it does not overrule the ban on picketing, it confirms that construction industry unions may enter into agreements that would prohibit the subcontracting of jobsite work to nonunion firms. However, petitioners’ argument — that the proviso was intended primarily as a response to Denver Building Trades, and that it should therefore be interpreted as protecting only those clauses designed to prevent jobsite friction — rests on faulty premises. As we have already shown, see supra, at 654-661, the proviso was not designed solely as a response to the Denver Building Trades problem. And even as a response to Denver Building Trades, the proviso is only partly concerned with jobsite friction.

B

Petitioners further contend that if the subcontracting clauses at issue here are approved, the unions will have a powerful organizing tool. Subcontractors will not be able to obtain work unless their employees are represented by the union. Thus, they will force their employees to become members of the union. In effect, the subcontracting clauses will create a “top-down” pressure for unionization; they will take the representation decision out of the hands of the employees and place it in the hands of the employers.

It is undoubtedly true that one of the central aims of the 1959 amendments to the Act was to restrict the ability of unions to engage in top-down organizing campaigns. See Connell Construction Co., supra, at 632 (discussing legislative history). It is also true that secondary subcontracting agreements like those at issue here create top-down organizing pressure. However, even if the agreements were limited in application to jobsites at which both union and nonunion workers were employed, there would be some topdown organizing effect. Such pressure is implicit in the construction industry proviso. The bare assertion that a particular subcontracting agreement encourages top-down organizing pressure does not resolve the issue we confront in these cases: how much top-down pressure did Congress intend to tolerate when it decided to exempt construction site projects from §8(e)? As we have already explained, we believe that Congress endorsed subcontracting agreements obtained in the context of a collective-bargaining relationship— and decided to accept whatever top-down pressure such clauses might entail. Congress concluded that the community of interests on the construction jobsite justified the top-down organizational consequences that might attend the protection of legitimate collective-bargaining objectives.

The top-down organizing effect of subcontracting clauses sought or obtained in the context of a collective-bargaining relationship is limited in a number of ways by other provisions of the National Labor Relations Act. A subcontractor cannot be subjected to unlimited picketing to force it into a union agreement without regard to the wishes of its employees. See 29 U. S. C. § 158(b)(7)(C). An additional safeguard is provided by § 8(f), 29 U. S. C. § 158(f), which authorizes unions and employers in the construction industry to enter into collective-bargaining agreements, even though the employees of that employer have not designated the union as their lawful bargaining representative. When a union obtains a subcontracting clause from a general contractor, subcontractors frequently attempt to ensure that they remain eligible for work by entering into a § 8(f) agreement—known as a prehire agreement — with the union. If they do so, however, § 8(f) expressly states that their employees may challenge the union’s representative status by filing an election petition with the Board. And the subcontractors themselves, if they do not have a stable work force among whom the union has secured a majority, may be free to repudiate the agreement at any project on which the union has not demonstrated that it represents a majority of their employees. See NLRB v. Iron Workers, 434 U. S. 335 (1978); Giordano Construction Co., 256 N. L. R. B. 47, 47-48, 107 LRRM 1164, 1165-1166 (1981).

Despite petitioners’ assertions to the contrary, nonunion employees are not frozen out of the job market by subcontracting agreements. Even where construction unions successfully negotiate collective-bargaining agreements that require both general contractors and subcontractors to obtain their labor from union hiring halls, the union must refer both members and nonmembers to available jobs. 29 U. S. C. §§ 158(a)(3), 158(b)(2). In addition, Courts of Appeals have suggested that the obligations of union membership that may be required under union security clauses after seven days are limited to the normal financial obligations of membership.

Finally, since the Denver Building Trades rule remains in effect, employees working for firms with whom a construction union has a primary dispute are protected against secondary picketing designed to force them off their current job. And as the Court of Appeals held in these cases, even where construction unions have negotiated secondary clauses that are sheltered by the proviso, they may not enforce them by picketing or other forms of concerted activity. See H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 39 (1959), 1 Leg. Hist. 943; 105 Cong. Rec. 19772 (1959), 2 Leg. Hist. 1858 (postenactment memorandum of Sen. Goldwater).

IV

Petitioner Woelke asks us to reverse the Court of Appeals’ holding that unions do not violate § 8(b)(4)(A) when they picket to obtain a subcontracting clause sheltered by the construction industry proviso. However, the Court of Appeals was without jurisdiction to consider that question. The issue was not raised during the proceedings before the Board, either by the General Counsel or by Woelke. Thus, judicial review is barred by § 10(e) of the Act, 29 U. S. C. § 160(e), which provides that “[n]o objection that has not been urged before the Board . . . shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” See De troit Edison Co. v. NLRB, 440 U. S. 301, 311-312, n. 10 (1979); Garment Workers v. Quality Mfg. Co., 420 U. S. 276, 281, n. 3 (1975); NLRB v. Ochoa Fertilizer Corp., 368 U. S. 318, 322 (1961).

The § 10(e) bar applies even though the Board held that the picketing was not banned by § 8(b)(4)(A). See Carpenters Local No. 944, 239 N. L. R. B., at 251. Woelke could have objected to the Board’s decision in a petition for reconsideration or rehearing. The failure to do so prevents consideration of the question by the courts. See Garment Workers v. Quality Mfg. Co., supra, at 281, n. 3.

Because the Court of Appeals lacks jurisdiction to review objections that were not urged before the Board, we do not reach the question whether the picketing was lawful. Instead, we vacate that portion of the Court of Appeals’ judgment that relates to this issue, and remand with instructions to dismiss.

V

We hold that the construction industry proviso to § 8(e) of the National Labor Relations Act ordinarily shelters union signatory subcontracting clauses that are sought or negotiated in the context of a collective-bargaining relationship, even when not limited in application to particular jobsites at which both union and nonunion workers are employed. This interpretation of the proviso is supported by its plain language, as well as the legislative history. Thus, we affirm the decision below, insofar as it holds that the clauses at issue here were sheltered by the proviso. We further hold that the Court of Appeals was without jurisdiction to decide whether a union violates § 8(b)(4)(A) when it pickets to obtain a lawful subcontracting clause. We vacate that portion of the judgment below, and remand for further proceedings consistent with this opinion.

It is so ordered.

       The proposed clause provides in full:
      “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, san[d] 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.” 1 App. 86.
      The expiring contract contained a union signatory subcontracting clause that was similar in effect. Id., at 28.

       Section 8(b)(4)(A) prohibits coercing “any employer or selfemployed person to join any labor or employer organization or to enter into any agreement which is prohibited by section 8(e).”

       The clause provides in full:
      “Employers shall not contract any work covered by this Agreement to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work to any person, firm or company who does not have an existing labor agreement with the Union covering such work.” 2 App. 9-10.

       The Board reasoned that the use of self-help measures would violate § 8(b)(4)(B) of the Act, 29 U. S. C. § 158(b)(4)(B). That section makes it an unfair labor practice for a union to force any person to “cease doing business with any other person.”

       Petitioner Oregon AGC was technically a respondent in the Board proceeding. However, it supported the position taken by Pacific Northwest.

       The only other Court of Appeals to confront this question reached the same conclusion. See Donald Schriver, Inc. v. NLRB, 204 U. S. App. D. C. 4, 25, 635 F. 2d 859, 880 (1980), cert. denied, 451 U. S. 976 (1981), petition for rehearing pending, No. 80-1257.

       None of the petitioners sought review of the Court of Appeals’ decision that economic pressure may not be used to enforce subcontracting agreements.

       In Connell, the Court was confronted with a novel and apparently foolproof organizational tactic: “stranger” picketing aimed at pressuring employers with whom the union had no collective-bargaining relationship, and whose employees it had no interest in representing, into signing union signatory subcontracting agreements. Because there was no recognitional objective to the picketing, it did not violate § 8(b)(7), 29 U. S. C. § 158(b)(7). And because the subcontracting clause appeared to be protected by the construction industry proviso, the picketing was arguably not prohibited by § 8(b)(4)(A), 29 U. S. C. § 158(b)(4)(A), which bans picketing to secure agreements made unlawful by § 8(e). The Court concluded, however, that the protection of the proviso “extends only to agreements in the context of collective-bargaining relationships.” Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S., at 633. In these cases, we decide a question left unresolved in Connell: the extent to which the proviso shelters agreements sought or obtained within the context of a collective-bargaining relationship.

       Since the proviso was added to § 8(e) at the Senate conferees’ insistence, and since Senator Kennedy was chairman of the Senate conferees, his explanation of the clause is entitled to substantial weight.

       The employer and union representatives who testified before the House Labor Committee, as well as Senator Curtis, opposed the use of subcontracting clauses, arguing that they forced nonunion contractors out of business. House Hearings 2366; Senate Hearings 752. Significantly, despite this testimony, Congress decided to exclude the construction industry from the scope of § 8(e).

       In Operating Engineers Local Union No. 3 v. NLRB, the Court of Appeals approved the Board’s conclusion that a contractor did not violate the Act by complying with a subcontracting clause under which it was not permitted to subcontract engineering work to a firm that did not observe the terms of the union’s contract. The employer and union representatives who testified before the House Labor Committee referred to the case. House Hearings 2364, 2367. The text of the Court of Appeals decision was introduced into the record of the House Hearings. Id., at 801, 803-807.

       Petitioners suggest that the Lunden study did not adequately distinguish between broad union signatory clauses like those at issue here and union standards clauses — clauses that permit general contractors to subcontract to nonunion subcontractors, so long as the subcontractors are willing to comply with the standards set forth in the union’s contract. However, the Board’s General Counsel, who conducted his own study of subcontracting restrictions in the construction industry, and who did distinguish between various types of restrictions, found union signatory clauses very similar to those at issue here in roughly 12% of the contracts studied. NLRB General Counsel's Memorandum, Dec. 15, 1976, 93 Lab. Rel. Rep. 390, 404, reprinted in 1976 Lab. Rel. Yearbook 295, 309.
      Broad subcontracting clauses have been part of the pattern of collective bargaining in southern California, where the Woelke & Romero case arose, since 1941. See Pierson, Building-Trades Bargaining Plan in Southern California, 70 Monthly Lab. Rev. 14, 17 (1950); see also 1 App. 20-22. The Pierson study also noted that similar bargaining arrangements existed in other localities, including the Portland, Ore., area, where the Pacific Northwest case arose. Pierson, supra, at 15. See also Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv. L. Rev. 1086, 1119 (1960) (construction industry proviso “approves the general practice of the building trades to secure from a contractor a promise that he will not subcontract work on the job site to a nonunion subcontractor”).

       105 Cong. Rec. 17881, 2 Leg. Hist. 1425 (remarks of Sen. Morse); 105 Cong. Rec. 15541 (1959), 2 Leg. Hist. 1577 (memorandum by Reps. Thompson and Udall); 105 Cong. Rec. 15551-15552 (1959), 2 Leg. Hist. 1588 (memorandum by Rep. Elliott); 105 Cong. Rec. 15852 (1959), 2 Leg. Hist. 1684 (remarks by Rep. Goodell).

       It is important to recognize, however, that reducing jobsite friction is a legitimate purpose. The clauses at issue here serve this goal by ensuring that members of the respondent unions need not work alongside nonunion employees.

       It may be true, as petitioners emphasize, that the use of union signatory subcontracting clauses will give a particular union a monopoly position in a labor market. However, the Board has previously suggested that in most labor markets, apart from some minor overlaps, there is only one union representing a particular craft. See Carpenters Local 15, 240 N. L. R. B. 252, 261 (1979). In addition, as Congress recognized, see S. Rep. No. 187, 86th Cong., 1st Sess., 28 (1959), a majority of the workers skilled in a particular craft will belong to that union.

       Many of these protections would not have been available to limit the top-down organizing effect of the clauses at issue in Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S. 616 (1975).

       As we note below, see infra, at 665-666, we do not reach the question whether a union may use economic pressure to obtain a subcontracting agreement. We also do not reach the question whether a union may picket to obtain a prehire agreement.

       See Radio Officers v. NLRB, 347 U. S. 17, 40-42 (1954); Teamsters v. NLRB, 365 U. S. 667, 673-677 (1961).

       See NLRB v. Hershey Foods Corp., 513 F. 2d 1083, 1085-1087 (CA9 1975); Local 1104, Communications Workers of America v. NLRB, 520 F. 2d 411, 417-420 (CA2 1975), cert. denied, 423 U. S. 1051 (1976).


source: Caselaw Access Project

author: Justice Rehnquist Justice Powell, Justice Brennan, Justice Stevens,

license: Public Domain

text:
    OREGON v. KENNEDY
    No. 80-1991.
    Argued March 29, 1982
    Decided May 24, 1982

      Rehnquist, J., delivered the opinion of the Court, in which Burgee, C. J., and White, Powell, and O’Connor, JJ., joined. Powell, J., filed a concurring opinion, post, p. 679. Brennan, J., filed an opinion concurring in the judgment, in which Marshall, J., joined, post, p. 680. Stevens, J., filed an opinion concurring in the judgment, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 681.

      Dave Frohnmayer, Attorney General of Oregon, argued the cause for petitioner. With him on the brief were William F. Gary, Solicitor General, and Robert E. Barton, John C. Bradley, Thomas H. Denney, and Stephen F. Peifer, Assistant Attorneys General.

      Donald C. Walker argued the cause and filed a brief for respondent.

      Samuel A. Alito, Jr., argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, and David B. Smith.

        Jennifer Friesen filed a brief for, the American Civil Liberties Union Foundation of Oregon, Inc., as amicus curiae.

   Justice Rehnquist

delivered the opinion of the Court.

The Oregon Court of Appeals decided that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution barred respondent’s retrial after his first trial ended in a mistrial granted on his own motion. 49 Ore. App. 415, 619 P. 2d 948 (1980), cert. granted, 454 U. S. 891 (1981). The Court of Appeals concluded that retrial was barred because the prosecutorial misconduct that occasioned the mistrial in the first instance amounted to “overreaching.” Because that court took an overly expansive view of the application of the Double Jeopardy Clause following a mistrial resulting from the defendant’s own motion, we reverse its judgment.

I

Respondent was charged with the theft of an oriental rug. During his first trial, the State called an expert witness on the subject of Middle Eastern rugs to testify as to the value and the identity of the rug in question. On cross-examination, respondent’s attorney apparently attempted to establish bias on the part of the expert witness by asking him whether he had filed a criminal complaint against respondent. The witness eventually acknowledged this fact, but explained that no action had been taken on his complaint. On redirect examination, the prosecutor sought to elicit the reasons why the witness had filed a complaint against respondent, but the trial court sustained a series of objections to this line of inquiry. The following colloquy then ensued:

“Prosecutor: Have you ever done business with the Kennedys?
“Witness: No, I have not.
“Prosecutor: Is that because he is a crook?”

The trial court then granted respondent’s motion for a mistrial.

When the State later sought to retry respondent, he moved to dismiss the charges because of double jeopardy. After a hearing at which the prosecutor testified, the trial court found as a fact that “it was not the intention of the prosecutor in this case to cause a mistrial.” 49 Ore. App., at 418, 619 P. 2d, at 949. On the basis of this finding, the trial court held that double jeopardy principles did not bar retrial, and respondent was then tried and convicted.

Respondent then successfully appealed to the Oregon Court of Appeals, which sustained his double jeopardy claim. That court set out what it considered to be the governing principles in this kind of case:

“The general rule is said to be that the double jeopardy clause does not bar reprosecution, . . where circumstances develop not attributable to prosecutorial or judicial overreaching, . . . even if defendant’s motion is necessitated by a prosecutorial error.’ United States v. Jorn, 400 U. S. 470, 485 . . . (197[1]). However, retrial is barred where the error that prompted the mistrial is intended to provoke a mistrial or is ‘motivated by bad faith or undertaken to harass or prejudice’ the defendant. United States v. Dinitz, 424 U. S. 600, 611 . . . (1976). Accord, State v. Rathbun, 37 Or. App. 259, 586 P. 2d 1136 (1978), reversed on other grounds, 287 Or. 421, [600] P. 2d [329] (1979).” Id., at 417-418, 619 P. 2d, at 949.

The Court of Appeals accepted the trial court’s finding that it was not the intent of the prosecutor to cause a mistrial. Nevertheless, the court held that retrial was barred because the prosecutor’s conduct in this case constituted what it viewed as “overreaching.” Although the prosecutor intended to rehabilitate the witness, the Court of Appeals expressed the view that the question was in fact “a direct personal attack on the general character of the defendant.” Id., at 418, 619 P. 2d, at 949. This personal attack left respondent with a “Hobson’s choice — either to accept a necessarily prejudiced jury, or to move for a mistrial and face the process of being retried at a later time.” Id., at 418, 619 P. 2d, at 950.

Before turning to the merits of the double jeopardy claim, we are met with the respondent’s contention that the Court of Appeals’ decision is based upon an adequate and independent state ground. Respondent contends in the alternative that the basis for the decision below is sufficiently uncertain that we ought to remand this case in order that the Court of Appeals may clarify the grounds upon which its judgment rested. See Delaware v. Prouse, 440 U. S. 648, 652 (1979); California v. Krivda, 409 U. S. 33, 35 (1972).

We reject both of these contentions. A fair reading of the opinion below convinces us that the Court of Appeals rested its decision solely on federal law. With one exception, the cases it cited in outlining the “general rule” that guided its decision are decisions of this Court. The Court of Appeals’ citation to State v. Rathbun, 37 Ore. App. 259, 586 P. 2d 1136 (1978), rev’d, 287 Ore. 421, 600 P. 2d 392 (1979), was clearly to its own decision in that case, rather than the decision of the Oregon Supreme Court. Although the Supreme Court’s decision in Rathbun was based on state statutory and constitutional grounds, the Court of Appeals’ decision in Rathbun clearly rested on federal grounds, a fact which was so recognized by the Oregon Supreme Court. Id., at 430-431, 600 P. 2d, at 396-397. Even if the case admitted of more doubt as to whether federal and state grounds for decision were intermixed, the fact that the state court relied to the extent it did on federal grounds requires us to reach the merits. Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 568 (1977).

II

The Double J eopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz, 424 U. S. 600, 606 (1976). As a part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a “valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U. S. 684, 689 (1949). The Double Jeopardy Clause, however, does not offer a guarantee to the defendant that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding. United States v. Jorn, 400 U. S. 470, 483-484 (1971) (plurality opinion); Wade v. Hunter, 336 U. S., at 689. If the law were otherwise, “the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again.” Ibid.

Where the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the “manifest necessity” standard first enunciated in Justice Story’s opinion for the Court in United States v. Perez, 9 Wheat. 579, 580 (1824). Perez dealt with the most common form of “manifest necessity”: a mistrial declared by the judge following the jury’s declaration that it was unable to reach a verdict. While other situations have been recognized by our cases as meeting the “manifest necessity” standard, the hung jury remains the prototypical example. See, e. g., Arizona v. Washington, 434 U. S. 497, 509 (1978); Illinois v. Somerville, 410 U. S. 458, 463 (1973). The “manifest necessity” standard provides sufficient protection to the defendant’s interests in having his case finally decided by the jury first selected while at the same time maintaining “the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, supra, at 689.

But in the case of a mistrial declared at the behest of the defendant, quite different principles come into play. Here the defendant himself has elected to terminate the proceedings against him, and the “manifest necessity” standard has no place in the application of the Double Jeopardy Clause. United States v. Dinitz, supra, at 607-610. Indeed, in United States v. Tateo, 377 U. S. 463, 467 (1964), the Court stated:

“If Tateo had requested a mistrial on the basis of the judge’s comments, there would be no doubt that if he had been successful, the Government would not have been barred from retrying him” (emphasis in original).

Our cases, however, have indicated that even where the defendant moves for a mistrial, there is a narrow exception to the rule that the Double Jeopardy Clause is no bar to retrial. See, e. g., United States v. DiFrancesco, 449 U. S. 117, 130 (1980); United States v. Dinitz, supra, at 611; United States v. Jorn, supra, at 485; United States v. Tateo, supra, at 468, n. 3. The circumstances under which respondent’s first trial was terminated require us to delineate the bounds of that exception more fully than we have in previous cases.

Since one of the principal threads making up the protection embodied in the Double Jeopardy Clause is the right of the defendant to have his trial completed before the first jury empaneled to try him, it may be wondered as a matter of original inquiry why the defendant’s election to terminate the first trial by his own motion should not be deemed a renunciation of that right for all purposes. We have recognized, however, that there would be great difficulty in applying such a rule where the prosecutor’s actions giving rise to the motion for mistrial were done “in order to goad the [defendant] into requesting a mistrial.” United States v. Dinitz, supra, at 611. In such a case, the defendant’s valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances. But the precise phrasing of the circumstances which will allow a defendant to interpose the defense of double jeopardy to a second prosecution where the first has terminated on his own motion for a mistrial have been stated with less than crystal clarity in our cases which deal with this area of the law. In United States v. Dinitz, 424 U. S., at 611, we said:

“The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.”

This language would seem to follow the rule of United States v. Tateo, supra, at 468, n. 3, in limiting the exception to cases of governmental actions intended to provoke mistrial requests. But immediately following the quoted language we went on to say:

“[The Double Jeopardy Clause] bars retrials where ‘bad-faith conduct by judge or prosecutor,’ threatens the ‘[harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.” United States v. Dinitz, 424 U. S., at 611 (citation omitted).

' The language just quoted would seem to broaden the test from one of intent to provoke a motion for a mistrial to a more generalized standard of “bad faith conduct” or “harassment” on the part of the judge or prosecutor. It was upon this language that the Oregon Court of Appeals apparently relied in concluding that the prosecutor’s colloquy with the expert witness in this case amount to “overreaching.”

The difficulty with the more general standards which would permit a broader exception than one merely based on intent is that they offer virtually no standards for their application. Every act on the part of a rational prosecutor during a trial is designed to “prejudice” the defendant by placing before the judge or jury evidence leading to a finding of his guilt. Given the complexity of the rules of evidence, it will be a rare trial of any complexity in which some proffered evidence by the prosecutor or by the defendant’s attorney will not be found objectionable by the trial court. Most such objections are undoubtedly curable by simply refusing to allow the proffered evidence to be admitted, or in the case of a particular line of inquiry taken by counsel with a witness, by an admonition to desist from a particular line of inquiry.

More serious infractions on the part of the prosecutor may provoke a motion for mistrial on the part of the defendant, and may in the view of the trial court warrant the granting of such a motion. The “overreaching” standard applied by the court below and urged today by Justice Stevens, however, would add another classification of prosecutorial error, one requiring dismissal of the indictment, but without supplying any standard by which to assess that error.

By contrast, a standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system. When it is remembered that resolution of double jeopardy questions by state trial courts are reviewable not only within the state court system, but in the federal court system on habeas corpus as well, the desirability of an easily applied principle is apparent.

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant’s motion for a mistrial constitutes “a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” United States v. Scott, 437 U. S. 82, 93 (1978). Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, “[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.” United States v. Dinitz, supra, at 609. Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.

Were we to embrace the broad and somewhat amorphous standard adopted by the Oregon Court of Appeals, we are not sure that criminal defendants as a class would be aided. Knowing that the granting of the defendant’s motion for mistrial would all but inevitably bring with it an attempt to bar a second trial on grounds of double jeopardy, the judge presiding over the first trial might well be more loath to grant a defendant’s motion for mistrial. If a mistrial were in fact warranted under the applicable law, of course, the defendant could in many instances successfully appeal a judgment of conviction on the same grounds that he urged a mistrial, and the Double Jeopardy Clause would present no bar to retrial. But some of the advantages secured to him by the Double Jeopardy Clause — the freedom from extended anxiety, and the necessity to confront the government’s case only once— would be to a large extent lost in the process of trial to verdict, reversal on appeal, and subsequent retrial. See United States v. Dinitz, 424 U. S., at 608.

In adopting the position we now do, we recognize that language taken from our earlier opinions may well suggest a broader rule. The Court of Appeals in this case, for example, may have derived its “overreaching” standard from the following language in the plurality opinion in United States v. Jorn, 400 U. S., at 485:

“Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.”

A footnote attached to this sentence explains, however, that “where a defendant’s mistrial motion is necessitated by judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution might well be barred.” Id., at 485, n. 12. There are likewise statements in United States v. Dinitz, supra, at 611, based largely on the plurality opinion in Jom to the same effect.

Because of the confusion which these varying statements of the standard in question have occasioned in other courts, we deem it best to acknowledge the confusion and its justifiability in the light of these statements from previous decisions. We do not by this opinion lay down a flat rule that where a defendant in a criminal trial successfully moves for a mistrial, he may not thereafter invoke the bar of double jeopardy against a second trial. But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.

Since the Oregon trial court found, and the Oregon Court of Appeals accepted, that the prosecutorial conduct culminating in the termination of the first trial in this case was not so intended by the prosecutor, that is the end of the matter for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The judgment of the Oregon Court of Appeals is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Powell,

concurring.

I join the Court’s opinion holding that the intention of a prosecutor determines whether his conduct, viewed by the defendant and the court as justifying a mistrial, bars a retrial of the defendant under the Double Jeopardy Clause. Because “subjective” intent often may be unknowable, I emphasize that a court — in considering a double jeopardy motion-should rely primarily upon the objective facts and circumstances of the particular case. See ante, at 675.

' In the present case the mistrial arose from the prosecutor’s conduct in pursuing a line of redirect examination of a key witness. The Oregon Court of Appeals identified a single question as constituting “overreaching” so serious as to bar a retrial. Yet, there are few vigorously contested lawsuits— whether criminal or civil — in which improper questions are not asked. Our system is adversarial and vigorous advocacy is encouraged.

Nevertheless, this would have been a close case for me if there had been substantial factual evidence of intent beyond the question itself. Here, however, other relevant facts and circumstances strongly support the view that prosecutorial intent to cause a mistrial was absent. First, there was no sequence of overreaching prior to the single prejudicial question. See ante, at 669-670, and n. 1. Moreover, it is evident from a colloquy between counsel and the court, out of the presence of the jury, that the prosecutor not only resisted, but also was surprised by, the defendant’s motion for a mistrial. See App. 24-29. Finally, at the hearing on respondent’s double jeopardy motion, the prosecutor testified — and the trial found as a fact and the appellate court agreed — that there was no “‘intention ... to cause a mistrial.’” Ante, at 669.

In view of these circumstances, the Double Jeopardy Clause provides no bar to retrial.

Justice Brennan,

with whom Justice Marshall joins, concurring in the judgment.

I concur in the judgment and join in the opinion of Justice Stevens. However, it should be noted that nothing in the holding of the Court today prevents the state courts, on remand, from concluding that respondent’s retrial would violate the provision of the Oregon Constitution that prohibits double jeopardy, Ore. Const., Art. I, § 12, as that provision has been interpreted by the state courts, State v. Rathbun, 287 Ore. 421, 600 P. 2d 392 (1979). See South Dakota v. Opperman, 428 U. S. 364, 396 (1976) (Marshall, J., dissenting), on remand, State v. Opperman, 247 N. W. 2d 673 (S. D. 1976) (original State Supreme Court judgment adhered to as a matter of state constitutional law); Oregon v. Hass, 420 U. S. 714, 726 (1975) (Marshall, J., dissenting).

Justice Stevens,

with whom Justice Brennan, Justice Marshall, and Justice Blackmun join, concurring in the judgment.

Unless the Oregon Court of Appeals based its decision on Oregon law, this is a case in which the state court should have applied the general rule that a defendant’s motion for a mistrial removes any double jeopardy bar to retrial. The prosecutor’s mistake was not the kind of overreaching or harassment identified in our precedents as an exception to the general rule. Instead of explaining why that conclusion is required by settled law, this Court gratuitously lops off a portion of the previously recognized exception. This exercise in lawmaking is objectionable because it is wholly unnecessary and because it compromises an important protection provided by the Double Jeopardy Clause.

i — I

The Double Jeopardy Clause represents a constitutional policy of finality for the defendant’s benefit in criminal proceedings. If the defendant is acquitted by the jury, or if he is convicted and the conviction is upheld on appeal, he may not be prosecuted again for the same offense. The defendant’s interest in finality is not confined to final judgments; he also has a protected interest in having his guilt or innocence decided in one proceeding. That interest must be balanced against society’s interest in affording the prosecutor one full and fair opportunity to present his evidence to the jury. Our decisions in the mistrial setting accordingly have accommodated the defendant’s double jeopardy interests with legitimate prosecutorial interests.

The accommodation is reflected in two general rules that govern the permissibility of reprosecution after a mistrial. Which general rule applies turns on whether the defendant has retained control over the course to be followed once error has substantially tainted the initial proceeding. When a mistrial is declared over the defendant’s objection, the general rule is that retrial is barred. An exception to this general rule exists for cases in which the mistrial was justified by “manifest necessity.” The other general rule is that the defendant’s motion for, or consent to, a mistrial removes any double jeopardy bar to reprosecution. There is an exception to this rule for cases in which the prosecutor intended to provoke a mistrial or otherwise engaged in “overreaching” or “harassment. ” The prosecutor has the burden of proving the former exception for manifest necessity, and the defendant has the burden of proving the latter exception for overreaching.

As an initial matter, it is useful to explain why the defendant’s retention of control over the course to be followed once serious prosecutorial error has occurred represents a reasonable accommodation of double jeopardy and prosecutorial interests. A defendant cannot be guaranteed both that there will be only one proceeding and that it will be free of error. When unfair prejudice is injected into the proceeding by the prosecutor, the defendant may choose to continue the proceeding despite the taint and, if convicted, seek a reversal on appeal. Or he may choose to abort the tainted proceeding and begin anew. While it is true that prosecutorial error leaves the defendant with a “Hobson’s choice,” it is also true that the prosecutor suffers substantial costs no matter how the defendant exercises this choice. If the defendant consents to a mistrial, the prosecutor must go to the time, trouble, and expense of starting all over with the criminal prosecution. If the defendant chooses to continue the proceeding and preserve his objection for appeal, the prosecutor must continue to completion a proceeding in which a conviction may not be sustainable.

The rationale for the exception to the general rule permitting retrial after a mistrial declared with the defendant’s consent is illustrated by the situation in which the prosecutor commits prejudicial error with the intent to provoke a mistrial. In this situation the defendant’s choice to continue the tainted proceeding or to abort the proceeding and begin anew is inadequate to protect his double jeopardy interests. For, absent a bar to reprosecution, the defendant would simply play into the prosecutor’s hands by moving for a mistrial. The defendant’s other option — to continue the tainted proceeding — would be no option at all if, as we might expect given the prosecutor’s intent, the prosecutorial error has virtually guaranteed conviction. There is no room in the balance of competing interests for this type of manipulation of the mistrial device. Or to put it another way, whereas we tolerate some incidental infringement upon a defendant’s double jeopardy interests for the sake of society’s interest in obtaining a verdict of guilt or innocence, when the prosecutor seeks to obtain an advantage by intentionally subverting double jeopardy interests, the balance invariably tips in favor of a bar to reprosecution.

Today the Court once again recognizes that the exception properly encompasses the situation in which the prosecutor commits prejudicial error with the intent to provoke a mistrial. But the Court reaches out to limit the exception to that one situation, rejecting the previous recognition that prosecutorial overreaching or harassment is also within the exception.

Even if I agreed that the balance of competing interests tipped in favor of a bar to reprosecution only in the situation in which the prosecutor intended to provoke a mistrial, I would not subscribe to a standard that conditioned such a bar on the determination that the prosecutor harbored such intent when he committed prejudicial error. It is almost inconceivable that a defendant could prove that the prosecutor’s deliberate misconduct was motivated by an intent to provoke a mistrial instead of an intent simply to prejudice the defendant. The defendant must shoulder a strong burden to establish a bar to reprosecution when he has consented to the mistrial, but the Court’s subjective intent standard would eviscerate the exception.

A broader objection to the Court’s limitation of the exception is that the rationale for the exception extends beyond the situation in which the prosecutor intends to provoke a mistrial. There are other situations in which the defendant’s double jeopardy interests outweigh society’s interest in obtaining a judgment on the merits even though the defendant has moved for a mistrial. For example, a prosecutor may be interested in putting the defendant through the embarrassment, expense, and ordeal of criminal proceedings even if he cannot obtain a conviction. In such a case, with the purpose of harassing the defendant the prosecutor may commit repeated prejudicial errors and be indifferent between a mistrial or mistrials and an unsustainable conviction or convictions. Another example is when the prosecutor seeks to inject enough unfair prejudice into the trial to ensure a conviction but not so much as to cause a reversal of that conviction. This kind of overreaching would not be covered by the Court’s standard because, by hypothesis, the prosecutor’s intent is to obtain a conviction, not to provoke a mistrial. Yet the defendant’s choice — to continue the tainted proceeding or to abort it and begin anew — can be just as “hollow” in this situation as when the prosecutor intends to provoke a mistrial.

To invoke the exception for overreaching, a court need not divine the exact motivation for the prosecutorial error. It is sufficient that the court is persuaded that egregious prosecu-torial misconduct has rendered unmeaningful the defendant’s choice to continue or to abort the proceeding. It is unnecessary and unwise to attempt to identify all the factors that might inform the court’s judgment, but several considerations follow from the rationale for recognizing the exception. First, because the exception is justified by the intolerance of intentional manipulation of the defendant’s double jeopardy interests, a finding of deliberate misconduct normally would be a prerequisite to a reprosecution bar. Second, because the defendant’s option to abort the proceeding after prosecu-torial misconduct would retain real meaning for the defendant in any case in which the trial was going badly for him, normally a required finding would be that the prosecutorial error virtually eliminated, or at least substantially reduced, the probability of acquittal in a proceeding that was going badly for the government. It should be apparent from these observations that only in a rare and compelling case will a mistrial declared at the request of the defendant or with his consent bar a retrial.

No one case, of course, is a proper vehicle for identifying the limits of the exception. The Court repeatedly has shunned inflexible standards in applying the comparable “manifest necessity” exception to the general rule that a defendant is entitled to go to final judgment before the initial tribunal. The value of the overreaching standard, like “[t]he value of the [manifest necessity standard,] thus lies in [its] capacity for informed application under widely different circumstances without injury to defendants or to the public interest.” Wade v. Hunter, 336 U. S. 684, 691. The inexactitude of the standard used to protect defendants in the exceptional case surely should not concern the Court any more than the equally ill-defined formula used to protect prosecutors in the exceptional case. The scarcity of cases in which the exception has been invoked counsels against preempting the judgment reflected in our decisions that an exception for overreaching or harassment should remain available for the rare case in which it may be needed. We should simply decide this case on its facts, as we did in United States v. Dinitz and Lee v. United States; and thereby continue to give meaning to the “abstract formula” in the context of actual cases.

I — I HH

The petitioner, and the state court that denied the respondent’s motion to dismiss, have correctly pointed out that it is unnecessary to cut back on the recognized exception, or even to disavow the most liberal construction given it by the federal courts, to conclude that the exception has not been established on the facts of this case. The isolated pros-ecutorial error occurred early in the trial, too early to determine whether the case was going badly for the prosecution. If anyone was being harassed at that time, it was the prosecutor, who was frustrated by improper defense objections in her attempt to rehabilitate her witness. The gist of the comment that the respondent was a “crook” could fairly have been elicited from the witness, since defense counsel injected the respondent’s past alleged improprieties into the trial by questioning the witness about his bias towards the defendant. The comment therefore could not have injected the kind of prejudice that would render unmeaningful the defendant’s option to proceed with the trial.

Because the present case quite clearly does not come within the recognized exception, I join the Court’s judgment. I cannot, however, join the Court’s opinion because it totally fails to justify its disavowal of the Court’s precedents.

       The Court of Appeals later explained that respondent’s “objections were not well taken, and the judge’s rulings were probably wrong.” 49 Ore. App. 415, 417, 619 P. 2d 948, 949 (1980).

       These proceedings were not conducted by the same trial judge who presided over respondent’s initial trial.

       This Court held in Benton v. Maryland, 395 U. S. 784 (1969), that this Clause was made applicable to the States through the Due Process Clause of the Fourteenth Amendment.

       Cf. United States v. Tateo, 377 U. S. 463, 468, n. 3 (1964) (“If there were any intimation in a ease that prosecutorial or judicial impropriety justifying a mistrial resulted from a fear that the jury was likely to acquit the accused, different considerations would, of course, obtain”).

       If the Court were to hold, as would Justice Stevens, that such a determination requires an assessment of the facts and circumstances but without explaining how such an assessment ought to proceed, the Court would offer little guidance to the federal and state courts that must apply our decisions. Justice Stevens disagrees with the decision below because his reaction to a cold record is different from that of the Oregon Court of Appeals. The Court of Appeals found “overreaching”; Justice Stevens finds none. Neither articulates a basis for reaching their respective conclusions which can be applied to other factual situations. We are loath to adopt such an essentially standardless rule.

       This Court has consistently held that the Double Jeopardy Clause imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of the insufficiency of the evidence. See, e. g., United States v. DiFrancesco, 449 U. S. 117, 130-131 (1980).

       Justice Stevens’ opinion concurring in the judgment criticizes the suggestion that the broader rule he espouses would make it less likely the judges would grant a motion for mistrial than if the narrower rule prevailed. Post, at 687-688, n. 22. Justice Stevens’ criticism of our conclusion appears to be based on the erroneous assumption that the courts in such a situation would be applying the narrow rule, rather than the broad rule. Tested by the correct assumption that the courts would be applying the all-encompassing standard denominated “overreaching,” which he espouses, post, at 689-690, we do not find his criticisms persuasive. If appellate courts and trial courts alike in this branch of the law of double jeopardy were applying a rule of “black letter law” to a predetermined set of facts, it might be true that an appellate court would inevitably reach the conclusion that reprosecution should be barred in a number of cases where the trial court had actually denied the motion for mistrial. But there are two reasons why such a hypothesis is inapplicable here.
      First, the rule espoused by Justice Stevens is anything but a rule of “black letter law.” We are admonished that “[i]t is unnecessary and unwise to attempt to identify all the factors that might inform the court’s judgment.” Ibid. Second, appellate courts have traditionally given weight to a trial court’s assessment as to the necessity for a mistrial in deciding questions of double jeopardy. As this Court said in Gori v. United States, 367 U. S. 364, 368 (1961):
      “Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be obtained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.”
      It seems entirely reasonable to expect, therefore, that appellate judges will continue to defer to the judgment of trial judges who are “on the scene” in this area, and that they will not inexorably reach the same conclusion on a cold record at the appellate stage that they might if any one of them had been sitting as a trial judge. And a trial judge trying to faithfully apply the amorphous standard enunciated by Justice Stevens could surely be forgiven if in cases he regarded as extremely close he resolved the doubt in favor of continuing a trial to its conclusion rather than aborting it.

       Justice Stevens states that we “gratuitously lo[p] off a portion of the previously recognized exception.” Post, at 681. This charge is simply not borne out by even a moderately careful reading of our cases on the point. The footnote in United States v. Tateo, 377 U. S., at 468, n. 3, quoted in n. 4, supra, states the exception in terms of prosecutorial misconduct motivated by “fear that the jury was likely to acquit the accused.” The plurality opinion in United States v. Jorn, 400 U. S. 470, 485 (1971), quoted in the text, states the test in the broader terms of “prosecutorial or judicial overreaching”; the Court’s opinion in United States v. Dinitz, 424 U. S. 600 (1976), speaks at one point in terms of “governmental actions intended to provoke mistrial requests,” id., at 611, and at another point on the same page of “ ‘bad-faith conduct by judge or prosecutor’ ” which “threatens the ‘[hjarassment of an accused by successive prosecutions . . . .’ ” Only last Term, in United States v. DiFrancesco, supra, we said that “reprosecution of a defendant who has successfully moved for a mistrial is not barred, so long as the Government did not deliberately seek to provoke the mistrial request.” Id., at 130.
      Thus, it is quite inaccurate to suggest that our previous cases have single-mindedly adhered to one rule in cases such as this, and that we are now “lopping off” a part of that rule. However this case is decided, we are faced with a choice between two differing lines of authority in our own recent precedents; for the reasons stated in the text, supra, at 674-677, we think that the better arguments favor the rule which we adopt. But Justice Stevens, no less than we, chooses one of two differing rules; the state of our case law indicates that the justification for the choice must be based upon principle, and not authority.

       Although I am willing to accept the Court’s reading of the Oregon Court of Appeals’ opinion as having been based on federal law, I find the question somewhat more difficult than does the Court because the Oregon Supreme Court declined to review the case without explaining its reasons. Since the Oregon Supreme Court seems to have interpreted the state constitutional protection against double jeopardy to be broader than the federal provision, see State v. Rathbun, 287 Ore. 421, 600 P. 2d 392 (1979), it is entirely possible that that court’s refusal to review the Court of Appeals’ decision was predicated on its view that the decision was sound as a matter of state law regardless of whether it was compelled by federal precedents.

        United, States v. Jorn, 400 U. S. 470, 479 (plurality opinion).

        United States v. Ball, 163 U. S. 662.

         Arizona v. Washington, 434 U. S. 497, 503.

         Id., at 505. The Court in Wade v. Hunter, 336 U. S. 684, explained:
      “The double-jeopardy provision of the Fifth Amendment . . . does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Id., at 688-689 (footnote omitted).

       “The reasons why [the defendant’s ‘valued right to have his trial completed by a particular tribunal’] merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk than an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” Arizona v. Washington, supra, at 503-505 (footnotes omitted).

       Society’s interest, of course, is not simply to convict the guilty. Rather, its interest is “in fair trials designed to end in just judgments.” Wade v. Hunter, supra, at 689.

       See United States v. Dinitz, 424 U. S. 600, 609.

        Arizona v. Washington, 434 U. S., at 505.

        Ibid.

        United States v. Jorn, 400 U. S., at 485.

       The exception also encompasses comparable judicial misconduct. Because we are confronted with prosecutorial error, this opinion will address only that context.

         Ibid. The Court has never invoked the exception to bar reprosecution after a mistrial. In only two cases has the Court actually been confronted with a claim that the exception applied. In United States v. Dinitz, supra, the trial court had granted the defendant’s motion for a mistrial after expelling defense counsel for repeated misconduct. In holding that retrial was not barred by the Double Jeopardy Clause, this Court articulated the exception and the reasons why it was not established on the facts of that case:
      “The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad-faith conduct by judge or prosecutor,’ United States v. Jorn, supra, at 485, threatens the ‘[hjarassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant. Downum v. United States, 372 U. S., at 736. See Gori v. United States, 367 U. S., at 369; United States v. Jorn, supra, at 489 (Stewart, J., dissenting); cf. Wade v. Hunter, 336 U. S., at 692.
      “But here the trial judge’s banishment of Wagner from the proceedings was not done in bad faith in order to goad the respondent into requesting a mistrial or to prejudice his prospects for an acquittal. As the Court of Appeals noted, Wagner ‘was guilty of improper conduct’ during his opening statement which ‘may have justified disciplinary action,’ 492 F. 2d, at 60-61. Even accepting the appellate court’s conclusion that the trial judge overreacted in expelling Wagner from the courtroom, ibid., the court did not suggest, the respondent has not contended, and the record does not show that the judge’s action was motivated by bad faith or undertaken to harass or prejudice the respondent.” 424 U. S., at 611 (footnote omitted).
      The exception was also unsuccessfully claimed in Lee v. United States, 432 U. S. 23. In Lee the defendant had moved to dismiss a defective information prior to the attachment of j eopardy. The trial court tentatively denied the motion, but then granted it at the close of the evidence. Treating the motion to dismiss as a motion for a mistrial, this Court quoted extensively from Dinitz for the statement of the exception and then explained why the exception had not been established:
      “It follows under Dinitz that there was no double jeopardy barrier to petitioner’s retrial unless the judicial or prosecutorial error that prompted petitioner’s motion was ‘intended to provoke’ the motion or was otherwise ‘motivated by bad faith or undertaken to harass or prejudice’ petitioner. Supra, at 33. Here, two underlying errors are alleged: the prosecutor’s failure to draft the information properly and the court’s denial of the motion to dismiss prior to the attachment of jeopardy. Neither error — even assuming the court’s action could be so characterized — was the product of the kind of overreaching outlined in Dinitz. The drafting error was at most an act of negligence, as prejudicial to the Government as to the defendant. And the court’s failure to postpone the taking of evidence until it could give full consideration to the defendant’s motion, far from evidencing bad faith, was entirely reasonable in light of the last-minute timing of the motion and the failure of counsel to request a continuance or otherwise impress upon the court the importance to petitioner of not being placed in jeopardy on a defective charge.” 432 U. S., at 33-34 (footnote omitted).
      For other descriptions of the overreaching or harassment exception, see, e. g., Arizona v. Washington, supra, at 508 (“using the superior resources of the State to harass or to achieve a tactical advantage over the accused”) (footnote omitted); Illinois v. Somerville, 410 U. S. 458, 464 (error “that would lend itself to prosecutorial manipulation”); United States v. Jorn, 400 U. S., at 485 (“prosecutorial . . . overreaching”); id., at 485, n. 12 (“prosecutorial impropriety designed to avoid an acquittal”); United States v. Tateo, 377 U. S. 463, 468, n. 3 (“prosecutorial. . . impropriety ... resulting] from a fear that the jury was likely to acquit the accused”).

        United States v. Jorn, 400 U. S., at 484.

         Id., at 484, n. 11. See also United States v. Tateo, supra, at 474 (Goldberg, J., dissenting) (“Many juries acquit defendants after trials in which reversible error has been committed, and many experienced trial lawyers will forego a motion for a mistrial in favor of having his case decided by the jury”).

       “[I]t is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant’s mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause — the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions.” United States v. Dinitz, 424 U. S., at 608.

         Id., at 609.

       See Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 S. Ct. Rev. 81, 101-102.

       The prosecutor might wish to provoke a mistrial “in order to shop for a more favorable trier of fact, or to correct deficiencies in [his] case, or to obtain an unwarranted preview of the defendant’s evidence.” Id., at 94.

       Cf. Brock v. North Carolina, 344 U. S. 424, 429 (Frankfurter, J., concurring).

       Compare ante, at 675-676 (“Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause”), with ante, at 676 (“Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion”), and ante, at 679 (“But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial”).

       The Court offers two reasons for cutting back on the exception. First, the Court states that “[t]he difficulty with the more general standards which would permit a broader exception than one merely based on intent is that they offer virtually no standards for their application.” Ante, at 674. As I indicate in the text, however, some generality in the formula is a virtue and, in any event, meaningful and principled standards can be developed on a case-by-case basis that will not inhibit legitimate prosecution practices. See infra, at 689-692. Moreover, the general standards could hardly be more difficult to apply than the Court’s subjective intent standard. On this point, it is noteworthy that Justice Rehnquist recently cited the exception for “prosecutorial overreaching or misconduct” to illustrate that double jeopardy analysis rests on “balancing and fairness” rather than ‘“bright line’ distinction[s].” Finch v. United States, 433 U. S. 676, 680 (dissenting opinion).
      Second, the Court is “not sure that criminal defendants as a class would be aided” by a broader exception. Ante, at 676. If a mistrial will more frequently constitute a bar to reprosecution, the Court supposes that trial judges will tend to refuse the defendant’s mistrial motion and permit the error to be corrected on appeal of the conviction, in which event there would be no bar to reprosecution. This reasoning is premised on the assumption that an appellate court that concluded not only that the defendant’s mistrial motion should have been granted but also that the prosecutor intended to provoke a mistrial would not be obligated to bar reprosecution as well as reverse the conviction. The assumption is “irrational.” Commonwealth v. Potter, 478 Pa. 251, 282, 386 A. 2d 918, 933 (1978) (Roberts, J.); see id., at 259-260, 386 A. 2d, at 921-922 (Pomeroy, J.); Westen & Drubel, supra, at 103, 106, n. 130; see generally Note, Double Jeopardy: An Illusory Remedy for Governmental Overreaching at Trial, 29 Buffalo L. Rev. 759, 773-776 (1980).

       For an example of the kind of case that the Court’s limited exception would cover, see Commonwealth v. Warfield, 424 Pa. 555, 227 A. 2d 177 (1967).

       “As an initial matter, I question the validity of the lower court’s assumption that the Government in such cases tailors its misconduct to achieve one improper result as opposed to another. It is far more likely that in cases such as this, where the prosecution is concerned that the trial may result in an acquittal, that the Government engages in misconduct with the general purpose of prejudicing the defendant. In this case, for example, the Government stood to benefit from Dixon’s misconduct, regardless of whether it resulted in a guilty verdict or a mistrial. Moreover, even if such subtle differences in motivation do exist, I suspect that a defendant seeking to prevent a retrial will seldom be able to prove the Government’s actual motivation.” Green v. United States, 451 U. S. 929, 931, n. 2 (Marshall, J., dissenting from denial of certiorari).

       Moreover, a standard that requires a prosecutor to take the stand to explain his trial strategy and his train of thought prior to making a serious error is of questionable wisdom.

       See, e. g., Shaw v. Garrison, 328 F. Supp. 390 (ED La. 1971), aff’d, 467 F. 2d 113 (CA5 1972), cert. denied, 409 U. S. 1024.

       The defendant’s successful argument for a bar to reprosecution in United States v. Kessler, 530 F. 2d 1246, 1253 (CA5 1976), was that “otherwise ‘a prosecutor would have the option of first trying his case with inadmissible, prejudicial, and irrelevant evidence — that is, committing known error — in hopes of “getting away” with it, with the ability to retry the case properly if the first trial is aborted by a mistrial.’ ”

        Ante, at 673.

       Deliberate misconduct generally must be inferred from the objective evidence. The more egregious the prosecutorial error, and the harsher its impact on the defendant, the more readily the inference could be drawn.

       Justice Harlan aptly described the defendant’s interest as “being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” United States v. Jorn, 400 U. S., at 486. There is a corresponding societal interest against the historical and abhorrent practice of terminating trials whenever it appeared that the government’s evidence was insufficient to convict. See Arizona v. Washington, 434 U. S., at 507-508.

       In a case in which the prosecutor’s intent is primarily to harass the defendant, and only secondarily to obtain a conviction, this consideratir; would, of course, carry much less weight. The Double Jeopardy Clause protects a defendant not only from “declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict” but also from “[hjarassment of an accused by successive prosecutions.” Downum v. United States, 372 U. S. 734, 736.

       See especially the Court’s opinion in Illinois v. Somerville, 410 U. S. 458. Justice Marshall criticized the majority in that case for “abandon-ting] th[e] tradition [of elaboration of rules which give increasing guidance as case after case is decided] and [adopting] a new balancing test whose elements are stated on such a high level of abstraction as to give judges virtually no guidance at all in deciding subsequent cases.” Id., at 483 (dissenting opinion).

       The petitioner and the United States as amicus curiae cite only a few cases in which the exception has been invoked to bar reprosecution. One commentator discovered only two eases in which a Federal Court of Appeals barred reprosecution. Note, Double Jeopardy: An Illusory Remedy for Governmental Overreaching at Trial, 29 Buffalo L. Rev. 759, 760, n. 16 (1980).

       “We should not be so unmindful, even when constitutional questions are involved, of the principle of stare decisis, by whose circumspect observance the wisdom of this Court as an institution transcending the moment can alone be brought to bear on the difficult problems that confront us. . . . Furthermore, we are not here called upon to weigh considerations generated by changing concepts as to minimum standards of fairness, which interpretation of the Due Process Clause inevitably requires. Instead, the defense of double jeopardy is involved, whose contours are the product of history. In this situation the passage of time is not enough, and the conviction borne to the mind of the rightness of an overturning decision must surely be of a highly compelling quality to justify overruling a well-established precedent when we are presented with no considerations fairly deemed to have been wanting to those who preceded us.” Green v. United States, 355 U. S. 184, 215 (Frankfurter, J., dissenting).

       See n. 13, supra.

        Wade v. Hunter, 336 U. S., at 691.

       “The Oregon Court of Appeals’ holding that retrial of this case was barred on double jeopardy grounds is erroneous by any standard of pros-ecutorial overreaching which the lower courts of this country had previously derived from the decisions of this Court.” Brief for Petitioner 43.

       “I have reviewed the transcript and the wording, as put, and I would agree that the question was improper as put. I do not find, however, that it constitutes bad faith or was intentional impropriety. The question of whether or not it constitutes overreaching is one of those gray areas where we have to determine what ‘overreaching’ means, and in looking to the case which the defense has cited, United States v. Kessler, prosecutorial overreaching is there defined as being such as must have been a result of gross negligence or intentional misconduct which prejudiced the defendant so that he cannot receive a fair trial, and I wouldn’t find that the overreaching or the erroneous conduct in this matter reaches that degree of aggravation. I don’t think it amounted to gross negligence or intentional misconduct.” App. 53.