source: Caselaw Access Project

author: Justice Stevens CHIEF Justice Burger, Justice Rehnquist,

license: Public Domain

text:
    BRANDON et al. v. HOLT, DIRECTOR OF POLICE FOR THE CITY OF MEMPHIS, et al.
    No. 83-1622.
    Argued November 5, 1984
    Decided January 21, 1985

      Stevens, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Powell, and O’Connor, JJ., joined. Burger, C. J., filed an opinion concurring in the judgment, post, p. 473. Rehnquist, J., filed a dissenting opinion, post, p. 474.

      Eric Schnapper argued the cause for petitioners. With him on the briefs were Elizabeth A. McKanna, G. Philip Arnold, William E. Caldwell, and J. LeVonne Chambers.

      Henry L. Klein argued the cause for respondents. With him on the brief were Clifford D. Pierce, Jr., Charles V. Holmes, and Paul F. Goodman.

         Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, Bruce N. Kuhlik, Barbara L. Herwig, and Wendy M. Keats filed a brief for the United States as amicus curiae urging reversal.

   Justice Stevens

delivered the opinion of the Court.

The District Court entered a damages judgment against the Director of the Memphis (Tenn.) Police Department in his official capacity. Brandon v. Allen, 516 F. Supp. 1355, 1361 (WD Tenn. 1981). The Court of Appeals for the Sixth Circuit reversed, holding that he was protected by qualified immunity. Brandon v. Allen, 719 F. 2d 151, 153 (1983). The question presented is whether the damages judgment is payable by the city of Memphis because the Director was sued in his official capacity or whether the Director is individually liable, but shielded by qualified immunity.

Petitioners brought this action under 42 U. S. C. § 1983. They alleged and proved that Robert J. Allen, who was then a Memphis police officer, viciously assaulted them on March 5, 1977. They also proved that Allen had a history of violent and irregular behavior that was well known within the Police Department.

E. Winslow Chapman had been the Director of the Memphis Police Department for approximately six months when Officer Allen attacked the petitioners. It is undisputed that Chapman had no actual knowledge of Allen’s disciplinary record. The District Court found, however, that “Director Chapman should have known that Officer Allen’s dangerous propensities created a threat to the rights and safety of citizens. ” The Director’s lack of actual knowledge of Allen’s propensities was found to have been caused by the “policies in effect during that period of Mr. Chapman’s relatively new administration,” which policies included “the inherently deficient nature of police administrative procedures involving the discovery of officer misconduct.”

Petitioners sought damages from Officer Allen and from Director Chapman. Allen did not defend the action and a default judgment was entered against him for both compensatory and punitive damages. The award against Director Chapman was, however, limited to compensatory damages. In its findings and conclusions, the District Court repeatedly and unambiguously stated that the liability of Director Chapman was “in his official capacity.”

The Court of Appeals reversed the judgment against Director Chapman on the ground that he had “acted in good faith and is accordingly entitled to immunity.” In explaining its holding, the Court of Appeals rejected the petitioners’ contention that the action against Chapman was tantamount to an action against the city of Memphis. The court wrote:

“The plaintiffs’ argument that the qualified immunity is inapplicable simply because they sued Chapman in his official capacity is unavailing. Under Owen v. City of Independence, 445 U. S. 622 . . . (1980), a municipality is not entitled to claim the qualified immunity that the city’s agents can assert. But this is a suit against an individual, not the city. In reality, plaintiffs are attempting to amend their complaint so as to treat the Police Director as though he were the City in order to avoid the qualified immunity which shields Director Chapman. Such an argument is without support in precedent or reason.”

We granted certiorari to consider the validity of that argument. 467 U. S. 1204 (1984). We now reverse.

H-I

In Monroe v. Pape, 365 U. S. 167, 187-192 (1961), the Court held that a city was not “a person” within the meaning of 42 U. S. C. § 1983. That construction of § 1983 protected municipalities from liability in cases of this kind until June 6, 1978, when we decided Monell v. New York City Dept. of Social Services, 436 U. S. 658. The complaint in this case was filed on February 22, 1978, before Monroe v. Pape was overruled; this explains why the city of Memphis was not named as a defendant in this case. The timing of the complaint may also explain why petitioners did not expressly allege at the outset of the litigation that they were suing Chapman in his official capacity as Director of Police of the Memphis Police Department.

The course of proceedings after Monell was decided did, however, make it abundantly clear that the action against Chapman was in his official capacity and only in that capacity. Thus, in petitioners’ response to a defense motion for summary judgment, petitioners’ counsel stated:

“Defendant Chapman is sued in his official capacity as Director of Police Services, City of Memphis, Tennessee. ‘[OJfficial capacity suits generally represent an action against an entity of which an officer is an agent. . . . Monell v. New York Department of Social Services, 436 U. S. 658, 690 n. 55 (1978).’”

The point was reiterated in counsel’s opening statement, in the trial court’s evidentiary rulings, in the findings on liability, and in the proceedings relating to damages in which it was recognized that our decision in Newport v. Facts Concert, Inc., 453 U. S. 247 (1981), precluded an award of punitive damages against Director Chapman.

The Court of Appeals also repeatedly noted that the suit against Chapman was “in his official capacity.” Moreover, while the appeal was pending Director Chapman left office and was replaced by John D. Holt. Pursuant to Rule 43(c)(1) of the Federal Rules of Appellate Procedure, Holt was automatically substituted as a party. It is Director Holt who appears as a respondent in this Court, and there is not even an arguable basis for claiming that the record would support an award of damages against him individually.

Given this state of the record, even at this late stage of the proceedings, petitioners are entitled to amend their pleadings to conform to the proof and to the District Court’s findings of fact. Moreover, it is appropriate for us to proceed to decide the legal issues without first insisting that such a formal amendment be filed; this is because we regard the record as plainly identifying petitioners’ claim for damages as one that is asserted against the office of “Director of Police, City of Memphis,” rather than against the particular individual who occupied that office when the claim arose. Petitioners are claiming a right to recover damages from the city of Memphis.

II

In at least three recent cases arising under § 1983, we have plainly implied that a judgment against a public servant “in his official capacity” imposes liability on the entity that he represents provided, of course, the public entity received notice and an opportunity to respond. We now make that point explicit.

In Monell, the City of New York was not itself expressly named as a defendant. The suit was nominally against the city’s Department of Social Services, but that Department had no greater separate identity from the city than did the Director of the Department when he was acting in his official capacity. For the purpose of evaluating the city’s potential liability under § 1983, our opinion clearly equated the actions of the Director of the Department in his official capacity with the actions of the city itself.

Hutto v. Finney, 437 U. S. 678 (1978), was an action against state officials rather than municipal officers. Notwithstanding our express recognition that an order requiring the Arkansas Commissioner of Corrections to pay the plaintiff’s counsel fees would be satisfied with state funds, we sustained the order against an Eleventh Amendment challenge. We considered it obvious that the State would pay the award because the defendants had been sued in their “official capacities.”

Less than two years later, we decided Owen v. City of Independence, 445 U. S. 622 (1980), a § 1983 action in which the complaint named as defendants “the city of Independence, City Manager Alberg, and the present members of the City Council in their official capacities.” We held that the qualified immunity that protects public servants acting in good faith was not available to those defendants. In so holding, we expressly distinguished between suits against government officials “in their individual capacities” on the one hand, and those in which “only the liability of the municipality itself was at issue,” on the other.

Because the Court of Appeals failed to apply that distinction in this case, it erred. Our holding in Owen, that a municipality is not entitled to the shield of qualified immunity from liability under § 1983, requires a reversal of the Court of Appeals’ judgment. Accordingly, the judgment is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

CHIEF Justice Burger,

concurring in the judgment.

This case presents two issues: (1) was the Director of Police, as a matter of law, sued in his official capacity? (2) does a judgment against the Director of Police in his official capacity impose liability against the city?

It does not make a fetish out of orderly procedure to say that if a claimant seeks damages from a municipality, this should be done by making it a named party defendant; that will assure the municipality has notice and an opportunity to respond. At the latest, a claimant should move at the close of the case to amend the pleadings to conform with the proof.

It is an odd business for this Court, the third and final tribunal, to treat the issue in a casual, offhand way; modern pleading is less rigid than in an earlier day, but it is not too much to ask that if a person or entity is to be subject to suit, the person or the entity should be named. I agree with Justice Rehnquist that it is a dubious business to encourage such shoddy pleading practices, but the courts have crossed that bridge. I join only the judgment.

Justice Rehnquist,

dissenting.

The Court’s decision in this case announces two propositions, both of which seem wrong to me, but which in any event are mutually inconsistent.

Part I holds that petitioners are entitled to amend their pleadings in this Court to add the city of Memphis as a party defendant. The Court relies for this holding on Federal Rule of Civil Procedure 15(b), and on citations to texts discussing that Rule. The entire presentation of this issue in this Court consisted of one sentence in petitioners’ reply brief, and therefore the Court is seriously handicapped in deciding the question — particularly since it is the sort of issue with which this Court almost never deals, but which is dealt with regularly by the district courts. I think the Court is wrong in deciding this issue as it does.

Rule 15(b) by its terms deals with “amendments to conform to the evidence.” It states in part:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.”

To come within the purview of the Rule, an issue must have been tried “by express or implied consent of the parties,” and it seems to me that Rule 15(b) must deal with the sort of amendments to the pleadings that have in fact been impliedly consented to by parties already in the case, who raised no objection when the factual matters that would support findings on such an issue were offered in evidence. It cannot, by definition, deal with a motion to add a party defendant, since that sort of an amendment could never have been “tried by express or implied consent of the parties.”

Even if the Rule could be construed to allow the addition of a party defendant, however, the Rule still requires a finding that the added party somehow consented to its addition through the conduct of the trial. The Court glosses over this problem by citing statements of petitioners’ counsel at trial, and some other actions that occurred after trial, ante, at 469-471, but it is hard to see how these references bear on the city’s consent. Given the differences in proof that might be involved in a suit against a city as opposed to a suit against an individual, the opportunity for prejudice is obvious, and I note that the Court reaches its conclusion based upon a trial record that is not nearly as clear as the Court would have one believe.

The Court’s halfhearted and thoroughly unenlightening effort to bring this case within the ambit of Federal Rules would be unfortunate if confined only to the facts of this case, but I fear that it bids fair to spawn uncertainty and upset settled authority in an area with which we as a Court have virtually no experience, and on a point that for all intents and purposes was not even briefed.

Part II of the Court’s opinion announces the novel proposition that in suing a public official under 42 U. S. C. § 1983, a money judgment against a public official “in his official capacity” is collectible against the public entity that employs the official. This startling doctrine — that a plaintiff may name as defendant only an agent, but nonetheless succeed in imposing damages on the principal who was not named — would seem to be at odds with the most rudimentary notions of pleading, parties, and of due process. It has long been the practice, of course, to sue a government official in his “official capacity” when seeking injunctive relief against a government entity. But I suspect that process arose in no small part from the fact that equity courts traditionally acted in personam, enforcing their decrees through the contempt power over the individual defendant. See H. McClintock, Equity § 34 (2d ed. 1948); W. Stafford, Handbook of Equity, ch. 6 (1934). Money damages suits are different; since the entity can be named as a defendant and its property proceeded against in rem, there is absolutely no need for the rule adopted by the Court today, and indeed, no cases of this Court can be cited in which money damages were awarded from a government treasury when the only defendant named was an individual sued “in his official capacity.”

To support its result the Court relies upon its characterization of three of our recent opinions. Quoting footnote 55 from the opinion in Monell v. New York City Dept. of Social Services, 436 U. S. 658, 690 (1978), it concludes that “our opinion clearly equated the actions of the Director of the Department in his official capacity with the actions of the city itself.” Ante, at 472. But to say that the “actions of the Director” are equated with the actions of the city itself falls far short of saying that an action naming only the Director as defendant can result in the judgment against the city itself.

The Court also relies on the opinion in Hutto v. Finney, 437 U. S. 678 (1978), because, we are told, “we considered it obvious that the State would pay the award because the defendants had been sued in their ‘official capacities.’” Ante, at 472. The Court in Hutto said, at the page cited in the present opinion:

“The order does not expressly direct the Department of Correction to pay the award, but since petitioners are sued in their official capacities, and since they are represented by the Attorney General, it is obvious that the award will be paid with state funds.” 437 U. S., at 693.

Again, this observation is more readily interpreted as an estimate of what would probably happen in the particular case, than as a cryptic announcement of the novel doctrine for which the Court now says that it stands.

The third case upon which the Court relies is Owen v. City of Independence, 445 U. S. 622 (1980), which, as the Court points out, was a suit that named the municipal corporation as a defendant as well as the public officials. The statement of the Court in that case in footnote 18 that “[h]ere, in contrast, only the liability of the municipality itself is at issue” would seem a straightforward recognition of the fact that the city had been named as a defendant, not an announcement of the new rule of pleading for which the Court takes it today.

I think, therefore, that both “prongs” of the Court’s decision are wrong. But right or wrong, they cannot both be applied to the same case. If in fact naming an official as a defendant “in his official capacity” is sufficient to impose liability upon a municipal corporation that was not named as a defendant, there is absolutely no need to amend the pleadings at this late date to add the city as a defendant. And if, at this late date, it is proper on the basis of this record to add the city as a defendant, petitioners have no need of the strained rule deduced from Monell, Hutto, and Owen that one need not name a defendant in a lawsuit in order to take judgment against that defendant.

       That section provides, in pertinent part:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” of fact ade-

       The following excerpt from the District Court’s findings of fact quately reflects the character of the incident:
      “[Petitioners], who were seventeen years of age, drove to the Memphis Hunt and Polo Club while on a date and parked in a dark and secluded driveway area. . . . After approximately thirty minutes had elasped, a Chevrolet pickup truck entered the driveway where [petitioners] were parked. . . . The driver of the truck identified himself to [petitioners] as a police officer and showed them an official police identification card bearing the name and photograph of Robert J. Allen. . . . Mr. Allen ordered Mr. Muse to step out of the car. After briefly questioning him, Officer Allen maliciously, and without provocation, struck Mr. Muse in the neck and head with his fist and then stabbed and cut Muse on the neck and ear with a knife. As Officer Allen tried to break into the car where [petitioner] Elizabeth A. Brandon was seated, Mr. Muse jumped into the driver’s side of the car and quickly drove away. Officer Allen fired one shot at the escaping vehicle from his police revolver. The bullet shattered the front window on the driver’s side of the car. Officer Allen followed plaintiffs in a high speed chase which ended at St. Joseph’s Hospital East, where plaintiffs sought medical care and assistance and reported the unprovoked attack upon them by Officer Allen.” Brandon v. Allen, 516 F. Supp. 1355, 1357 (WD Tenn. 1981).

       Officer Allen’s police file records contained 20 complaints when he left the Memphis Police Department. They included complaints for “serious abuse of police authority and use of unnecessary force.” Id., at 1358.

       The District Court found that Officer maladaptive behavior was well known among Police officers in his precinct.” Ibid. The court also found that Allen’s colleagues commented thusly when the March 5 incident was reported to them: “They finally caught up with him; he’s a quack; Allen has done something this time that he can’t get out of.” Ibid. Moreover, the court found that Allen’s fellow officers regarded him as a “mental case”; that Allen rode in his squad car alone because of the reluctance of other officers to ride with him; and that Allen boasted of killing a man in the course of duty. Ibid. Additionally, the District Court wrote:

        “Offieer Allen has often stated to other officers that he wished he knew the exact bullet spread in the chest of the man he killed. Officer Allen referred to a pair of gloves in his possession as his ‘killing gloves,’ and he would ceremoniously put those gloves on his hands when he was called to the scene of a crime.” Ibid.

         Id., at 1360.

       Regarding these policies and procedures, the District Court wrote: “Due to a code of silence induced by peer pressure among the rank-and-file officers and among some police supervisors, few — if any — formal complaints were ever filed by police personnel. Furthermore, when complaints were filed by citizens, little disciplinary action was apparently taken against the offending officer. Instead, a standard form letter, bearing Mr. Chapman’s signature, was mailed to each complainant, assuring the person that appropriate action had been taken by the Police Department, even if such action had not in fact been taken. This tended to discourage follow-up measures by the complaining citizen. Perhaps, Mr. Chapman’s belief that it was better to take no disciplinary action than to act and later be reversed by a review board was responsible for this obviously inadequate solution. The end result was twofold: 1) Mr. Chapman’s procedures were highly conducive to ‘covering up’ officer misconduct; 2) the Police Director and many of his supervisors were totally insulated from knowledge of wrongdoing by officers as a result of policies in effect during that period of Mr. Chapman’s relatively new administration.” Id., at 1361.

       Petitioner Muse recovered $21,310.75 in compensatory damages and out-of-pocket expenses; petitioner Brandon recovered $5,000. App. 36a.

       The District Court initially summarized: “This is a civil action against the Honorable E. Winslow Chapman, in his official capacity as director of the Memphis Police Department and former Memphis Police Officer Robert J. Allen.” 516 F. Supp., at 1356 (emphasis added). It also later stated that “Mr. Chapman was sued in his official capacity as an agent of the Memphis Police Department,” id., at 1359 (emphasis added), and that “[b]ecause Mr. Chapman, as Police Director, should have known of Officer Allen’s dangerous propensities the Court finds that he must be held liable, in his official capacity, to the plaintiffs.” Id., at 1360 (emphasis added). Finally, the court concluded: “Accordingly, Mr. Chapman in his capacity as Director of the Memphis Police Department must be held liable to plaintiffs in this case.” Id., at 1361 (emphasis added).

        Brandon v. Allen, 719 F. 2d 151, 154 (1983). The Court of Appeals also held that the award of compensatory damages against Allen was inadequate. Id., at 153.

         Id., at 154.

       The caption and the body of the complaint named as a defendant, “E. Winslow Chapman, Director of Police.” Complaint, Brandon v. Allen, Civil Action No. 78-2076 (WD Tenn.). The Mayor of Memphis was also named; the District Court granted summary judgment in his favor. App. 13a-18a.

       Brief for Petitioners 19.

       Counsel stated:
      “Mr. Chapman is sued in this lawsuit in his official capacity, and as was stated in Monell versus New York City Department of Social Services, a 1978 Supreme Court case, official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.” Id., at 20-21.
      See also Tr. 202 (“Mr. Chapman is not sued individually, but in his official capacity”) (statement of petitioners’ counsel during trial).

       The trial court held that certain out-of-court statements by police officers were admissible because the officers were employed by a party to the case, namely the city of Memphis. See id., at 17-21, 45-47.

       See n. 8, supra.

       Chapman’s attorney argued that Newport made it clear that no award of punitive damages could be made against Chapman “since he was found liable in his official capacity.” See Brief for Defendant E. Winslow Chapman bn Issue of Damages in No. C-78-2076 (WD Tenn.), p. 1.

       719 F. 2d, at 152, 153, 154; see also Order ing En Banc, Brandon v. Allen, Nos. 82-5321, 83-5346 (CA6) (“We do not believe that a judgment for damages against a police official in his official capacity is the same as a judgment against the city itself”).

       Rule 43(c)(1), entitled “Public officers; death or separation from office,” provides: the
      “When a public officer is a party to an appeal or other proceeding in the court of appeals in his official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.”
      See also this Court’s Rule 40.3; Fed. Rule Civ. Proc. 25(d)(1).

       See Fed. Rule Civ. Proc. 15(b); 3 J. Moore, Federal Practice ¶ 15.13[2], p. 15-157 (2d ed. 1984) (amendment to conform to evidence may be made at any time); id., at 15-168 (Rule 15(b) amendment allowed “so long as the opposing party has not been prejudiced in presenting his ease”); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1491, pp. 453, 454 (1971 ed. and Supp. 1983) (Rule 15(b) is “intended to promote the objective of deciding cases on their merits rather than in terms of the relative pleading skills of counsel”); ibid. (“[Cjourts should interpret [Rule 15(b)] liberally and permit an amendment whenever doing so will effectuate the underlying purpose of the rule”).

       Here, the Police Department and the city received notice; no claim is made that the Director of Police and the city were without due notice of the proceedings.

       We stated that “official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.” 486 U. S., at 658, 690, n. 55.

       See 437 U. S., at 693.

       445 U. S., at 630.

       We wrote:
      “The governmental immunity at issue in the present case differs significantly' from the official immunities involved in our previous decisions. In those cases, various government officers had been sued in their individual capacities. . . . Here, in contrast, only the liability of the municipality itself is at issue, not that of its officers. ...” Id., at 638, n. 18 (emphasis added).

       As an alternative ground for affirming the judgment of the Court of Appeals, respondents argue that the record does not establish that petitioners’ injury was caused by the kind of “policy or custom” that “may fairly be said to represent official policy” of the city of Memphis. See Monell, 436 U. S., at 694. Because the Court of Appeals did not address this argument, we do not consider it. Monsanto v. Spray-Rite Service Corp., 465 U. S. 752, 759-761, n. 6 (1984); Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970); Duignan v. United States, 274 U. S. 195, 200 (1927).


author: Justice O’Connor Justice Brennan,

text:
    UNITED STATES v. JOHNS et al.
    No. 83-1625.
    Argued November 28, 1984
    Decided January 21, 1985

      O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 488.

      Alan I. Horowitz argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, Joshua I. Schwartz, and Gloria C. Phares.

      William G. Walker argued the cause for respondents. With him on the brief were Michael L. Piccarreta, Peter Keller, Nancy G. Postero, Walter B. Nash III, and Robert J. Hirsh.

   Justice O’Connor

delivered the opinion of the Court.

In United States v. Ross, 456 U. S. 798 (1982), the Court held that if police officers have probable cause to search a lawfully stopped vehicle, they may conduct a warrantless search of any containers found inside that may conceal the object of the search. The issue in the present case is whether Ross authorizes a warrantless search of packages several days after they were removed from vehicles that police officers had probable cause to believe contained contraband. Although the Court of Appeals for the Ninth Circuit acknowledged that under Ross the police officers could have searched the packages when they were first discovered in the vehicles, the court concluded that the delay after the initial seizure made the subsequent warrantless search unreasonable within the meaning of the Fourth Amendment. 707 F. 2d 1093 (1983). We granted certiorari, 467 U. S. 1250 (1984), and we now reverse.

I

Pursuant to an investigation of a suspected drug smuggling operation, a United States Customs officer went to respondent Duarte’s residence in Tucson, Ariz., where he saw two pickup trucks. The Customs officer observed the trucks drive away, and he contacted other officers who conducted ground and air surveillance of the trucks as they traveled 100 miles to a remote private airstrip near Bowie, Ariz., approximately 50 miles from the Mexican border. Soon after the trucks arrived, a small aircraft landed. Although the Customs officers on the ground were unable to see what transpired, their counterparts in the air informed them that one of the trucks had approached the airplane. After a short time, the aircraft departed. A second small aircraft landed and then departed.

Two Customs officers on the ground came closer and parked their vehicles about 30 yards from the two trucks. One officer approached to investigate and saw an individual at the rear of one of the trucks covering the contents with a blanket. The officer ordered respondents to come out from behind the trucks and to lie on the ground. As he and the other officer walked towards the trucks, they smelled the odor of marihuana. They saw in the back of the trucks packages wrapped in dark green plastic and sealed with tape. Based on their prior experience, the officers knew that smuggled marihuana is commonly packaged in this manner. Respondents Duarte, Leon, Gomez, Redmond, and Soto were arrested at the scene. The Customs Office surveillance aircraft followed the two small airplanes back to Tucson. Respondents Johns and Hearron, the pilots, were arrested upon landing.

The Customs officers did not search the pickup trucks at the desert airstrip. Instead, after arresting the respondents who were at the scene, the Customs officers took the trucks back to Drug Enforcement Administration (DEA) headquarters in Tucson. The packages were removed from the trucks and placed in a DEA warehouse. Without obtaining a search warrant, DEA agents opened some of the packages and took samples that later proved to be marihuana. Although the record leaves unclear precisely when the agents opened the packages, the parties do not dispute the conclusion of the Court of Appeals, 707 F. 2d, at 1095, that the search occurred three days after the packages were seized from the pickup trucks.

A federal grand jury in the District of Arizona indicted respondents for conspiracy to possess and possession of marihuana with intent to distribute, in violation of 21 U. S. C. §§ 841(a)(1) and 846. Before trial, the District Court granted respondents’ motion to suppress the marihuana, and the Government appealed pursuant to 18 U. S. C. § 3731. The Court of Appeals rejected the Government’s contentions that the plain odor of marihuana emanating from the packages made a warrant unnecessary and that respondents Johns and Hearron lacked standing to challenge the search of the packages. 707 F. 2d, at 1095-1096, 1099-1100. Neither of these issues is before this Court. Finally, the Court of Appeals held that Ross did not authorize the warrantless search of the packages three days after they were removed from the pickup trucks. 707 F. 2d, at 1097-1099. Because we disagree with this conclusion, we reverse.

II

Respondents argue that we should affirm the suppression of the marihuana on the ground that the Customs officers never had probable cause to conduct a vehicle search, and therefore Ross is inapplicable to this case. Instead, respondents contend that United States v. Chadwick, 433 U. S. 1 (1977), establishes that the warrantless search was unlawful. These arguments are not persuasive. The events surrounding the rendezvous of the aircraft and the pickup trucks at the isolated desert airstrip indicated that the vehicles were involved in smuggling activity. The Customs officers on the ground were unable to observe the airplanes after they landed, and consequently did not see the packages loaded into the pickup trucks. After the officers came closer and detected the distinct odor of marihuana, they had probable cause to believe that the vehicles contained contraband. See Carroll v. United States, 267 U. S. 132, 149, 162 (1925). Given their experience with drug smuggling cases, the officers no doubt suspected that the scent was emanating from the packages that they observed in the back of the pickup trucks. The officers, however, were unaware of the packages until they approached the trucks, and contraband might well have been hidden elsewhere in the vehicles. We agree with the Court of Appeals, see 707 F. 2d, at 1097, that the Customs officers had probable cause to believe that not only the packages but also the vehicles themselves contained contraband.

Under the circumstances of this case, respondents’ reliance on Chadwick is misplaced. In Chadwick, police officers had probable cause to believe that a footlocker contained contraband. As soon as the footlocker was placed in the trunk of an automobile, the officers seized the footlocker and later searched it without obtaining a warrant. The Court in Chadwick refused to hold that probable cause generally supports the warrantless search of luggage. 433 U. S., at 11-13. Chadwick, however, did not involve the exception to the warrant requirement recognized in Carroll v. United States, supra, because the police had no probable cause to believe that the automobile, as contrasted to the footlocker, contained contraband. See 433 U. S., at 11-12. This point is underscored by our decision in Ross, which held that notwithstanding Chadwick police officers may conduct a warrantless search of containers discovered in the course of a lawful vehicle search. See 456 U. S., at 810-814. Given our conclusion that the Customs officers had probable cause to believe that the pickup trucks contained contraband, Chadwick is simply inapposite. See 456 U. S., at 817.

Respondents further contend that the record fails to show that a vehicle search ever in fact occurred. This argument is meritless. It is true that the trucks were not searched at the scene, and the record leaves unclear whether the Customs officers thoroughly searched the trucks after they were taken to DEA headquarters. The record does show, however, that the packages were unloaded from the trucks. Thus, the Customs officers conducted a vehicle search at least to the extent of entering the trucks and removing the packages. The possibility that the officers did not search the vehicles more extensively does not affect our conclusion that the packages were removed pursuant to a vehicle search. The issue presented by this case is whether the subsequent warrantless search was unreasonable merely because it occurred three days after the packages were unloaded from the pickup trucks.

Ill

Our analysis of the central issue in this case begins with our decision in Ross. There the Court observed that the exception to the warrant requirement recognized by Carroll allows a search of the same scope as could be authorized by a magistrate. 456 U. S., at 823, 825. “A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search.” Id., at 821. Although probable cause may not generally justify a war-rantless search of a container, the Court noted that the protection afforded by the Fourth Amendment varies in different settings. Id., at 823. “[A]n individual’s expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband.” Ibid. Cf. South Dakota v. Opperman, 428 U. S. 364, 367-368 (1976) (discussing lesser expectation of privacy in motor vehicles); Cardwell v. Lewis, 417 U. S. 583, 590-591 (1974) (plurality opinion). Consequently, “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Ross, 456 U. S., at 825.

Ross, as the Court of Appeals acknowledged, 707 F. 2d, at 1098, establishes that the Customs officers could have lawfully searched the packages when they were first discovered inside the trucks at the desert airstrip. Moreover, our previous decisions indicate that the officers acted permissibly by waiting until they returned to DEA headquarters before they searched the vehicles and removed their contents. See id., at 1099. There is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure. Texas v. White, 423 U. S. 67, 68 (1975) (per curiam); Chambers v. Maroney, 399 U. S. 42, 52 (1970). “[T]he justification to conduct such a warrantless search does not vanish once the car has been immobilized.” Michigan v. Thomas, 458 U. S. 259, 261 (1982) (per curiam). A vehicle lawfully in police custody may be searched on the basis of probable cause to believe that it contains contraband, and there is no requirement of exigent circumstances to justify such a warrantless search. Id., at 261-262; see also Florida v. Meyers, 466 U. S. 380 (1984) (per curiam).

The Court of Appeals concluded that Ross allows warrant-less searches of containers only if the search occurs “immediately” as part of the vehicle inspection or “soon thereafter.” See 707 F. 2d, at 1099. Neither Ross nor our other vehicle search cases suggest any such limitation. Ross involved the warrantless search of two different containers. After making a roadside arrest of the driver of an automobile, police officers opened the trunk and discovered a paper bag that contained what appeared to be narcotics. Ross, supra, at 801. The officers took the car to police headquarters and after a more thorough search discovered a leather pouch containing currency. 456 U. S., at 801. Ross did not distinguish between the search of the paper bag that occurred at the scene of arrest and the later search of the leather pouch. Because the police had probable cause to search the entire vehicle, the Court concluded that the police were entitled to open the containers discovered inside without first obtaining a warrant. See id., at 817. Ross did not suggest that this conclusion was affected by the fact that the leather pouch was not searched until after the police had impounded the vehicle or by the existence of exigent circumstances that might have made it impractical to secure a warrant for the search of the container. Instead, Ross indicated that the legality of the search was determined by reference to the exception to the warrant requirement recognized by Carroll.

Ross, as the Court of Appeals noted, did observe in a footnote that if police may immediately search a vehicle on the street without a warrant, “a search soon thereafter at the police station is permitted if the vehicle is impounded.” 456 U. S., at 807, n. 9. When read in context, these remarks plainly do not suggest that searches of containers discovered in the course of a vehicle search are subject to temporal restrictions not applicable to the vehicle search itself. Moreover, Ross expressly refused to limit the application of the Carroll exception by requiring police officers to secure a warrant before they searched containers found inside a lawfully stopped vehicle. 456 U. S., at 821, n. 28. “The scope of a warrantless search of an automobile ... is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” Id., at 824. Consequently, the fact that a container is involved does not in itself either expand or contract the well-established exception to the warrant requirement recognized in Carroll. See 456 U. S., at 824.

The approach of the Court of Appeals not only lacks support in our decision in Ross, but it also fails to further the privacy interests protected by the Fourth Amendment. Whether respondents ever had a privacy interest in the packages reeking of marihuana is debatable. We have previously observed that certain containers may not support a reasonable expectation of privacy because their contents can be inferred from their outward appearance, Arkansas v. Sanders, 442 U. S. 753, 764-765, n. 13 (1979), and based on this rationale the Fourth Circuit has held that “plain odor” may justify a warrantless search of a container. See United States v. Haley, 669 F. 2d 201, 203-204, and n. 3, cert. denied, 457 U. S. 1117 (1982). The Ninth Circuit, however, rejected this approach, 707 F. 2d, at 1096, and the Government has not pursued this issue on appeal. We need not determine whether respondents possessed a legitimate expectation of privacy in the packages. Because the Customs officers had probable cause to believe that the pickup trucks contained contraband, any expectation of privacy in the vehicles or their contents was subject to the authority of the officers to conduct a warrantless search. See Ross, 456 U. S., at 823.

The warrantless search of the packages was not unreasonable merely because the Customs officers returned to Tucson and placed the packages in a DEA warehouse rather than immediately opening them. Cf. United States v. Jacobsen, 466 U. S. 109, 119-120 (1984) (no privacy interest in package that was in possession of and had been examined by private party); Michigan v. Thomas, supra, at 261. The practical effect of the opposite conclusion would only be to direct police officers to search immediately all containers that they discover in the course of a vehicle search. Cf. Ross, supra, at 807, n. 9 (noting similar consequence if police could not conduct warrantless search after vehicle is impounded). This result would be of little benefit to the person whose property is searched, and where police officers are entitled to seize the container and continue to have probable cause to believe that it contains contraband, we do not think that delay in the execution of the warrantless search is necessarily unreasonable. Cf. Cardwell v. Lewis, 417 U. S., at 592-593 (impoundment and 1-day delay did not make examination of exterior of vehicle unreasonable where it could have been done on the spot); United States v. Edwards, 415 U. S. 800, 805-806 (1974) (warrantless search of suspect’s clothing permissible notwithstanding delay after initial arrest).

We do not suggest that police officers may indefinitely retain possession of a vehicle and its contents before they complete a vehicle search. Cf. Coolidge v. New Hampshire, 403 U. S. 443, 523 (1971) (White, J., dissenting). Nor do we foreclose the possibility that the owner of a vehicle or its contents might attempt to prove that delay in the completion of a vehicle search was unreasonable because it adversely affected a privacy or possessory interest. Cf. United States v. Place, 462 U. S. 696 (1983). We note that in this case there was probable cause to believe that the trucks contained contraband and there is no plausible argument that the object of the search could not have been concealed in the packages. Respondents do not challenge the legitimacy of the seizure of the trucks or the packages, and they never sought return of the property. Thus, respondents have not even alleged, much less proved, that the delay in the search of packages adversely affected legitimate interests protected by the Fourth Amendment. Inasmuch as the Government was entitled to seize the packages and could have searched them immediately without a warrant, we conclude that the war-rantless search three days after the packages were placed in the DEA warehouse was reasonable and consistent with our precedent involving searches of impounded vehicles. See Florida v. Meyers, 466 U. S. 380 (1984); Michigan v. Thomas, 458 U. S. 259 (1982); Cooper v. California, 386 U. S. 58, 61-62 (1967) (upholding warrantless search that took place seven days after seizure of automobile pending forfeiture proceedings).

Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Consistently with my disagreement with the Court in United States v. Ross, 456 U. S. 798 (1982); see id., at 827 (Marshall, J., joined by Brennan, J., dissenting), I dissent from today’s unwarranted extension of Ross. As a general rule the Fourth Amendment proscribes the warrantless search of closed packages and containers. United States v. Chadwick, 433 U. S. 1, 10-11 (1977). Even when the authorities have probable cause to believe that a container holds contraband or evidence of a crime, the Fourth Amendment generally permits no more than “seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the situation demand it . . . .” United States v. Place, 462 U. S. 696, 701 (1983). That a closed package is located within an automobile provides no reason for departing from the general rule that no more than seizure pending issuance of a warrant is constitutionally permissible. Ross, supra, at 831 (Marshall, J., dissenting) (“[T]he traditional rationales for the automobile exception plainly do not support extending it to the search of a container found inside a vehicle”). A fortiori a warrantless search occurring three days after seizure of a package found in an automobile violates the Fourth Amendment.

But even accepting Ross, I disagree with today’s blithe extension of the temporal scope of a permissible search on analogy to Texas v. White, 423 U. S. 67, 68 (1975) (per curiam), and Chambers v. Maroney, 399 U. S. 42, 52 (1970). I have previously made clear why I regard these decisions as questionable. See South Dakota v. Opperman, 428 U. S. 364, 384 (1976) (Marshall, J., joined by Brennan and Stewart, JJ., dissenting); Texas v. White, supra, at 69 (Marshall, J., joined by Brennan, J., dissenting). There is simply no justification for departing from the Fourth Amendment warrant requirement under the circumstances of this case; no exigency precluded reasonable efforts to obtain a warrant prior to the search of the packages in the warehouse.

It also cannot pass without comment that the Court has addressed an issue not before us. The Court of Appeals rejected the Government’s argument that the “plain odor” of marihuana emanating from the packages obviated the need for a warrant to search them, 707 F. 2d 1093, 1095-1096 (1983), and the Government has not renewed the argument here. Yet while properly noting that the “plain odor” issue is not before us, see ante, at 481, the Court suggests a very definite view with respect to the merits of this issue. Citing the Fourth Circuit case accepting the “plain odor” exception to the warrant requirement, United States v. Haley, 669 F. 2d 201, 203-204, and n. 3, cert. denied, 457 U. S. 1117 (1982), the Court today opines that “[wjhether respondents ever had a privacy interest in the packages reeking of marihuana is debatable.” Ante, at 486. This is an issue which is the subject of a significant divergence of opinion in the lower courts. Compare United States v. Haley, supra, with United States v. Dien, 609 F. 2d 1038, 1045 (CA2 1979). And most importantly, today’s offhand commentary contradicts this Court’s only precedent on the question. See Johnson v. United States, 333 U. S. 10, 13 (1948) (“[Ojdors alone do not authorize a search without warrant”). In these circumstances, surely it is improper for the Court without briefing or argument to suggest how it would resolve this important and unsettled question of law.

I dissent.


author: Chief Justice Burger Justice Stevens,

text:
    NATIONAL LABOR RELATIONS BOARD v. ACTION AUTOMOTIVE, INC.
    No. 83-1416.
    Argued October 29, 1984
    Decided February 19, 1985

      Burger, C. J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, and Powell, JJ., joined. Stevens, J., filed a dissenting opinion, in which Rehnquist and O’Connor, JJ., joined, post, p. 499.

      Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Wallace, Carter G. Phillips, and Linda Sher.

      Stewart J. Katz argued the cause and filed a brief for respondent.
   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether the National Labor Relations Board may exclude from a collective-bargaining unit employees who are relatives of the owners of a closely held corporation that employs them, without a finding that the employees receive special job-related benefits.

I

Respondent Action Automotive, Inc., is a retail automobile parts and gasoline dealer with stores in a number of Michigan cities. Action Automotive is a closely held corporation owned equally by three brothers, Richard, Robert, and James Sabo. The Sabo brothers are actively involved in the daily operations of the business. They serve as the corporation’s officers, make all policy decisions, and retain ultimate authority for the supervision of every department.

In March 1981, the Retail Store Employees Union, Local 40 (the Union), filed with the Board a petition requesting that a representation election be held among Action Automotive’s employees. Action Automotive and the Union agreed to elections in two bargaining units — one consisting of employees at the company’s nine retail stores, and the other comprising clerical employees at the company’s headquarters. The elections were held on May 29, 1981, and the Union received a plurality of votes in each unit; enough ballots were challenged by each side, however, to place the outcome of the elections in doubt. We are concerned only with the Union’s challenge to the ballots of Diane and Mildred Sabo.

Diane Sabo is the wife of Action Automotive’s president and one-third owner, Richard Sabo. She works as a general ledger clerk at the company’s headquarters in Flint, Michigan. She resides with her husband and both work at the same office. Unlike other clerical workers, she works part time and receives a salary. She also is allowed to take breaks when she pleases, and she often spends her break in her husband’s office.

Mildred Sabo is the mother of the three Sabo brothers who own and manage Action Automotive. She is employed as a full-time cashier at the company’s store in Barton, Michigan. Mildred Sabo lives with James Sabo, secretary-treasurer of the corporation, and she regularly sees or telephones her other sons and their families. She earns 25 cents per hour more than any other cashier, but she is also one of the company’s most experienced cashiers.

In light of these facts, the Board’s hearing officer concluded that Diane Sabo’s interests are different from those of other clerical employees in the company’s headquarters, and that Mildred Sabo’s “interests are more closely aligned with management than with the employees of Action Automotive.” App. to Pet. for Cert. 36a. He reached this conclusion without finding that Diane and Mildred. Sabo enjoy special job-related benefits. Believing that such a finding was not a prerequisite to excluding the two women from the bargaining units, the hearing officer recommended that the Union’s challenge to their ballots be sustained.

The Board adopted the hearing officer’s recommendations and, after all qualified votes were counted, certified the Union as the exclusive bargaining representative for the two units. When Action Automotive refused to bargain, the Union filed charges with the Board. The Board, relying on its earlier certification decision, found that Action Automotive had violated §§ 8(a)(1) and (5) of the National Labor Relations Act (Act), 61 Stat. 140, 141, 29 U. S. C. §§ 158(a)(1) and (5), and ordered the company to bargain with the Union. 262 N. L. R. B. 423 (1982).

The United States Court of Appeals for the Sixth Circuit denied enforcement of the Board’s order. 717 F. 2d 1033 (1983). The panel, apparently feeling bound by the Circuit’s prior decisions, see, e. g., NLRB v. Hubbard Co., 702 F. 2d 634 (1983), held that the Board had no authority under § 9(b) of the Act to exclude employees from a bargaining unit based solely on their close family relationship with those who own and operate the business. The court held that an employee’s family ties may be a factor justifying exclusion from a bargaining unit only “when the employee receive[s] job-related benefits or other favorable working conditions which flow from the relationship.” 717 F. 2d, at 1035. Under this standard, the court concluded that there was insufficient evidence that Diane and Mildred Sabo enjoy special job-related benefits, and that the Board erred in excluding them from the units.

The Sixth Circuit’s holding conflicts with the decisions of other Circuits and restricts the Board’s statutory authority to define bargaining units. We granted certiorari, 466 U. S. 970 (1984), and we reverse.

II

Section 9(b) of the Act vests in the Board authority to determine “the unit appropriate for the purposes of collective bargaining.” 61 Stat. 143, 29 U. S. C. § 159(b). The Board’s discretion in this area is broad, reflecting Congress’ recognition “of the need for flexibility in shaping the [bargaining] unit to the particular case.” NLRB v. Hearst Publications, Inc., 322 U. S. 111, 134 (1944). The Board does not exercise this authority aimlessly; in defining bargaining units, its focus is on whether the employees share a “community of interest.” See South Prairie Construction Co. v. Operating Engineers, 425 U. S. 800, 805 (1976) (per curiam); 15 NLRB Ann. Rep. 39 (1950). A cohesive unit— one relatively free of conflicts of interest — serves the Act’s purpose of effective collective bargaining, Pittsburgh Plate Glass Co. v. NLRB, 313 U. S. 146, 165 (1941), and prevents a minority interest group from being submerged in an overly large unit, Chemical Workers v. Pittsburgh Plate Glass Co., 404 U. S. 157, 172-173 (1971).

The Board has long hesitated to include the relatives of management in bargaining units because “their interests are sufficiently distinguished from those of the other employees.” Louis Weinberg Associates, Inc., 13 N. L. R. B. 66, 69 (1939). From the earliest days of the Wagner Act, ch. 372, 49 Stat. 449 et seq., until 1953, the Board automatically excluded close relatives of a manager or owner of a closely held company. See, e. g., Jerry and Edythe Belanger, 32 N. L. R. B. 1276, 1279, and n. 4. (1941). This bright-line approach was abandoned, however, in International Metal Products Co., 107 N. L. R. B. 65, 67 (1953), and now the Board considers a variety of factors in deciding whether an employee’s familial ties are sufficient to align his interests with management and thus warrant his exclusion from a bargaining unit.

For instance, a relevant consideration is whether the employee resides with or is financially dependent on a relative who owns or manages the business; such an employee is typically excluded from the unit. See, e. g., Pandick Press Midwest, Inc., 251 N. L. R. B. 473, 473-474 (1980). The greater the family involvement in the ownership and management of the company, the more likely the employee-relative will be viewed as aligned with management and hence excluded. See factors listed in NLRB v. Caravelle Wood Products, Inc., 466 F. 2d 675, 679 (CA7 1972). The Board, of course, is always concerned with whether the employee receives special job-related benefits such as high wages or favorable working conditions. See, e. g., Holthouse Furniture Corp., 242 N. L. R. B. 414, 415-416 (1979). When other criteria satisfy the Board that the employee-relative’s interests are aligned with management, however, he may be excluded from the unit even though he enjoys no special job-related benefits. E. g., Marvin Witherow Trucking, 229 N. L. R. B. 412, 412-413 (1977).

Our review is limited to whether the Board’s practice of excluding some close relatives who do not enjoy special job-related benefits has a “reasonable basis in law.” NLRB v. Hearst Publications, Inc., supra, at 131. In reviewing Board decisions, we consistently yield to the Board’s reasonable interpretations and applications of the Act, see NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 829-830 (1984); Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 891 (1984). Indeed, the Board’s orders defining bargaining units are “rarely to be disturbed.” Packard Motor Car Co. v. NLRB, 330 U. S. 485, 491 (1947).

The Board’s policy regarding family members, although not defined by bright-line rules, is a reasonable application of its “community of interest” standard. Close relatives of management, particularly those who live with an owner or manager, are likely to “get a more attentive and sensitive ear to their day-to-day and long-range work concerns than would other employees.” Parisoff Drive-In Market, 201 N. L. R. B. 813, 814 (1973). And it is reasonable for the Board to assume that the family member who is significantly dependent on a member of management will tend to equate his personal interests with the business interests of the employer. Ibid. The very presence at union meetings of close relatives of management could tend to inhibit free expression of views and threaten the confidentiality of union attitudes and voting. See generally ibid.; NLRB v. Hendricks County Rural Electric Membership Corp., 454 U. S. 170, 193-194 (1981) (POWELL, J., concurring in part and dissenting in part).

It can be argued that the Board’s policy is overbroad — that excluding from bargaining units only those family members who receive special job-related benefits adequately serves the Act’s objectives. However, we do not make labor policy under § 9(b); Congress vested that authority in the Board, which brings its extensive experience in the administration of the Act to bear on questions of unit determinations. See NLRB v. Hendricks County Rural Electric Membership Corp., supra, at 190; Packard Motor Car Co. v. NLRB, supra, at 492-493. We do not require “mathematical precision,” NLRB v. Hearst Publications, Inc., supra, at 133, and are not prepared to second-guess the Board’s informed judgment that a bargaining unit’s community of interest may be diluted by circumstances other than divergent job-related benefits.

The Board’s decision to exclude some family members is not inconsistent with the fundamental structure or policies of the Act. Congress knows how to limit the Board’s discretion to define collective-bargaining units. For example, § 9(c)(5) of the Act states that “the extent to which the employees have organized shall not be controlling” in determining whether a unit is appropriate. 29 U. S. C. § 159(c)(5). By contrast, there is no express direction that the Board define bargaining units only by reference to job-related benefits such as wages and working conditions. We are not authorized to bind the Board in ways not mandated by Congress.

Action Automotive’s extensive reliance on § 2(3) of the Act is misplaced. Section 2(3) excludes from the Act’s definition of “employee” “any individual employed by his parent or spouse.” 61 Stat. 138, 29 U. S. C. § 152(3). Such a person is completely outside the scope of the statute and may not invoke its protection. See, e. g., Campbell-Harris Electric, Inc., 263 N. L. R. B. 1143, 1143-1144, enf’d, 719 F. 2d 292 (CA8 1983). Family members who fall within the Act’s broad definition of “employee,” however, have no statutory right to be included in collective-bargaining units under § 9(b). The Board is free to exclude from bargaining units persons who are statutory “employees” otherwise protected by the Act. See, e. g., Hendricks County Rural Electric Membership Corp., supra, at 190.

Nor does the Board’s policy of excluding close relatives of management without a showing of special job-related benefits run afoul of the Act’s mandate that the Board remain “wholly neutral” as between the contending parties in representation elections, see NLRB v. Savair Mfg. Co., 414 U. S. 270, 278 (1973). Strictly speaking, the Board does not exclude a family member from a bargaining unit because he is likely to vote against the union. Rather the family member is excluded, if at all, because the Board determines on the basis of objective factors that he lacks common interests with fellow employees who are not so related. In some cases the Board’s policy may have the effect of favoring union representation; however, a disparate impact does not violate the principle of neutrality. Indeed, virtually every Board decision concerning an appropriate bargaining unit — e. g., the proper size of the unit — favors one side or the other.

The Board, in applying its general policy to the facts of this case, did not abuse its discretion. Diane Sabo resides with her husband, the president and one-third owner of Action Automotive; Mildred Sabo, the mother of the three owners, lives with one of her sons. All three owners are closely related and actively involved in running the business on a day-to-day basis. Diane Sabo works at the same office with her husband and occasionally takes her coffeebreaks in his office. Mildred Sabo has daily contacts with her sons. Certainly their participation in the collective-bargaining units would be viewed with suspicion by other employees. On these facts, the Board could reasonably conclude that Diane and Mildred Sabo’s interests are more likely to be aligned with the business interests of the family than with the interests of the employees.

We hold that the Board did not exceed its authority in excluding from collective-bargaining units close relatives of management, without a finding that the relatives enjoy special job-related privileges. The judgment of the Court of Appeals is

Reversed.

Justice Stevens,

with whom Justice Rehnquist and Justice O’Connor join,

dissenting.

In my opinion, bargaining unit determinations should be based on job characteristics and not on an employee’s opinion about unions. Antiunion sentiment may be based on religious views, political convictions, individual respect or hostility, or family considerations. If the characteristics of an employee’s job are the same as those of pro-union employees, that employee has the same right to membership in the bargaining unit as a union official or his wife.

The majority’s decision prevents the two employees involved in this litigation from participating in the decision to choose or reject representation solely because the extent of their family relations indicates that they are likely to be pro-management and hostile to union representation. In § 2(3) of the Act, however, Congress has already offered its view of the significance of family relationships for federal labor policy. Except for the children or spouses of sole proprietors, partners, and majority shareholders, family members related to owners or management personnel are entitled to participate as any other “employee” in the system of labor relations established by the Act.

During the period between 1935 and 1947 a policy of excluding pro-management employees from bargaining units might have been consistent with provisions of the Wagner Act which emphasized the employees’ right to organize. Since the Taft-Hartley Act of 1947, however, § 7 of the Act has provided equal protection for the employee’s right not to join a union as for the right to support a union. In NLRB v. Savair Manufacturing Co., 414 U. S. 270 (1973), the Court emphasized the significance of this language:

“Any procedure requiring a ‘fair’ election must honor the right of those who oppose a union as well as those who favor it. The Act is wholly neutral when it comes to that basic choice. By § 7 of the Act employees have the right not only to ‘form, join, or assist’ unions but also the right ‘to refrain from any or all of such activities.’ 29 U. S. C. § 157.” Id., at 278.

Although the Board has broad “discretion to define collective-bargaining units,” ante, at 497, § 9(b) of the Act now requires that such decisions shall “assure to employees the fiillest freedom in exercising the rights guaranteed by this [Act].” 29 U. S. C. § 159(b). The pro-union rationale of today’s decision is fundamentally inconsistent with “the statutory right of employees to resist efforts to unionize a plant.” NLRB v. Savair Manufacturing Co., 414 U. S., at 280.

To be sure, the majority purports to rely on “objective factors” in determining whether the relative “lacks common interests with fellow employees who are not so related,” ante, at 8, but in practice such persons will not “be identifiable by any standard other than probable opposition to the union at election time.” NLRB v. Caravelle Wood Products, Inc., 504 F. 2d 1181, 1189 (CA7 1974) (Stevens, J., concurring). The community of interests standard ordinarily applied by the Board to bargaining unit determinations is directed to the nature of the employee’s job and the existing terms and conditions of his employment. Likewise, confidential employees are excluded from bargaining units when “in the course of [their] employment” they gain access to. confidential information concerning labor relations. NLRB v. Hendricks County Rural Electric Membership Corp., 454 U. S. 170, 171 (1981). In contrast, the Court’s “expanded community of interest standard” for determining a relative’s right to participate in the bargaining unit inquires into matters of personal life that are no more relevant to federal labor policy than the employee’s eating and recreational habits or political views.

If the Board’s bargaining unit determinations are not to be made on the basis of ill-concealed indicators of the employee’s views on the virtues of union representation, employees who are relatives of owners and management must only be excluded from the unit if their family relationship has resulted in special privileges in the workplace. Except under those circumstances, I seriously doubt whether the employees at Action Automotive, Inc. — especially those who oppose organization of the unit by the union — would view “with suspicion,” ante, at 498, the inclusion of the two relatives here. The Board does not contest the Court of Appeals’ rejection of its factual finding that the two relatives “enjoyed a special status so as to disqualify them from voting.” 717 F. 2d 1033, 1036 (CA6 1983) (per curiam). Thus, no legitimate reason has been established to exclude them from the bargaining unit.

I respectfully dissent.

         The vote in the unit consisting of retail store employees was 20-18; the vote in the clerical unit was 4-3.

       The Board, disagreeing with the hearing officer, found that Diane Sabo does enjoy special job-related benefits. The Court of Appeals for the Sixth Circuit set aside this finding, and the Board, for purposes of review in this Court, no longer rests its decision on this ground.

       See NLRB v. H. M. Patterson & Son, Inc., 636 F. 2d 1014 (CA5 1981); Linn Gear Co. v. NLRB, 608 F. 2d 791 (CA9 1979); NLRB v. Caravelle Wood Products, Inc., 504 F. 2d 1181 (CA7 1974).

       The Board’s policy is not undermined by the fact that it has modified and refined its position; an agency’s day-to-day experience with problems is bound to lead to adjustments. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 294-295 (1974).

       Compare Parisoff Drive-In Market, Inc., 201 N. L. R. B. 813 (1973) (excluding children of corporation’s vice president and significant shareholder), with Pargas of Crescent City, Inc., 194 N. L. R. B. 616 (1971) (including wife of local manager with no ownership interest).

       At least since International Metal Products Co., 107 N. L. R. B. 65 (1953), the Board has not excluded an employee simply because he was related to a member of management.

         In the context of corporations, the Board has limited the § 2(3) exclusion to the children or spouses of an individual with at least a 50% ownership interest. See Cerni Motor Sales, Inc., 201 N. L. R. B. 918 (1973). The Board’s decision in this case, therefore, is not premised on the view that Diane and Mildred Sabo are not “employees” within the meaning of § 2(3).

       The Court of Appeals implicitly recognized as much by noting that employee-relatives may be excluded from a unit if they receive job-related privileges.

       “The term ‘employee’. .. shall not include . . . any individual employed by his parent or spouse . . . .” 29 U. S. C. § 152(3).

       Construing § 2(3), the Board has held that such persons are not “employees” covered by the Act. Cerni Motor Sales, Inc., 201 N. L. R. B. 918 (1973); Foam Rubber City #2 of Florida, Inc., 167 N. L. R. B. 623, 623-624 (1967).

       Section 9(b) of the Wagner Act provided that the Board, in making unit determinations should “insure to employees the full benefit of their right to self-organization and to collective bargaining.” National Labor Relations Act § 9(b), 49 Stat. 453. The Board interpreted this language as a mandate to promote union organization: “Wherever possible, it is obviously desirable that, in a determination of the appropriate unit, we render collective bargaining of the Company’s employees an immediate possibility.” Botany Worsted Mills, 27 N. L. R. B. 687, 690 (1940). See NLRB v. Metropolitan Life Insurance Co., 380 U. S. 438, 441 (1965). During this same period, the Board adopted a regular policy of automatically excluding family members from bargaining units. See, e. g., Louis Weinberg Associates, Inc., 13 N. L. R. B. 66, 69 (1939) (“son and daughter of the president and vice president of the Company” excluded from bargaining unit “where, as here, the only union involved desires their exclusion”).

       Labor Management Relations Act, 1947, § 101, 61 Stat. 136.

       “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities . . . .” 29 U. S. C. § 157 (emphasis added).

       See Chemical Workers v. Pittsburgh Plate Glass Co., 404 U. S. 157, 172-173 (1971); Kalamazoo Paper Box Corp., 136 N. L. R. B. 134, 137 (1962). See generally R. Gorman, Labor Law 68-74 (1976).

       Cf. NLRB v. Yeshiva University, 444 U. S. 672, 682 (1980) (“judicially implied exclusion [from the Act] for ‘managerial employees’ who are involved in developing and enforcing employer policy”). Moreover, the explicit instructions of Congress in § 2(3) limit the authority of the Court and the Board to imply additional exclusions in this context. See nn. 1 and 2, supra; NLRB v. Sexton, 203 F. 2d 940 (CA6 1953) (per curiam).

         NLRB v. Caravelle Wood Products, Inc., 504 F. 2d 1181, 1187 (CA7 1974).

       “Frequently, [unit] determinations, like the drawing of election districts in other contexts, have been the decisive factor in determining whether there would be any collective bargaining at all in a plant or enterprise. Unions and employers have sought to gerrymander accordingly.” B. Meltzer, Labor Law 811 (2d ed. 1977). In this context, “virtually every Board decision . . . favors one side or the other,” ante, at 498, and the Board must be especially circumspect to avoid reliance on illegitimate factors in determining the size of the election unit. In at least one ease, an Administrative Law Judge explicitly relied on relatives’ pro-union sentiments to include them in the bargaining unit over the employer’s objection. Trash Removers, Inc., 257 N. L. R. B. 945, 946 (1981) (“The basic theory underlying those decisions in which the Board has excluded relatives of the boss is that they are shown, by the record, to be aligned with management, as distinguished from being antimanagement or prounion. That is why it is always the union that requests their exclusion”), order adopted by the Board, id., at 945. See also Pet. for Cert. 11 (relatives’ access to management “lessens the likelihood that they would vote in favor of union representation”).

       See International Metal Products Co., 107 N. L. R. B. 65, 67 (1953) (“We are convinced that the mere coincidence of a family relationship between an employee and his employer does not negate the mutuality of employment interest which an individual shares with fellow employees, absent evidence that because of such relationship he enjoys a special status which allies his interests with those of management”), overruled in Foam Rubber City #2 of Florida, Inc., 167 N. L. R. B., at 624, n. 10. See also NLRB v. Hubbard Co., 702 F. 2d 634, 636 (CA6 1983); Cherrin Corp. v. NLRB, 349 F. 2d 1001, 1004 (CA61965), cert. denied, 382 U. S. 981 (1966); NLRB v. Sexton, 203 F. 2d, at 940.