author:
      Justice Scalia
      Justice Kennedy, Justice Stevens,

text:
    McNEIL v. WISCONSIN
    No. 90-5319.
    Argued February 26, 1991
    Decided June 13, 1991

      Gary M. Luck, by appointment of the Court, 498 U. S. 979, argued the cause and filed briefs for petitioner.

      David J. Becker, Assistant Attorney argued the cause for respondent. With him on the brief was James E. Doyle, Attorney General.

      Stephen L. Nightingale argued the cause States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, Robert A. Long, Jr., and Nina Goodman.

       Briefs of amici curiae urging affirmance were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, Richard E. Doran, and Virlindia Doss, Assistant Attorney General, and by the Attorneys General and other officials for their respective States as follows: John K. Van de Kamp, Attorney General of California, John J. Kelly, Chief State’s Attorney of Connecticut, Linley E. Pearson, Attorney General of Indiana, J. Joseph Curran, Jr., Attorney General of Maryland, William C. Webster, Attorney General of Missouri, T. Travis Medlock, Attorney General of South Carolina, Mark W. Barnett, Attorney General of South Dakota, R. Paul Van Dam, Attorney General of Utah, and Joseph B. Meyer, Attorney General of Wyoming; for the State of Illinois by Neil F. Hartigan, Attorney General, Robert J. Ruiz, Solicitor General, and
        Terrence M. Madsen, Assistant Attorney General; and for the Appellate Committee of the California District Attorneys Association by Jay P. Dufrechou.

        Gregory U. Evans, Daniel B. Hales, George D. Webster, Jack E. Yelver-ton, Fred E. Inbau, Wayne W. Schmidt, Bernard J. Farber, and James P. Manak filed a brief for Americans for Effective Law Enforcement et al. as amici curiae.

   Justice Scalia

delivered the opinion of the Court.

This case presents the question whether an accused’s invocation of his Sixth Amendment right to counsel during a judicial proceeding constitutes an invocation of his Miranda right to counsel.

I

Petitioner Paul McNeil was arrested in Omaha, Nebraska, in May 1987, pursuant to a warrant charging him with an armed robbery in West Allis, Wisconsin, a suburb of Milwaukee. Shortly after his arrest, two Milwaukee County deputy sheriffs arrived in Omaha to retrieve him. After advising him of his Miranda rights, the deputies sought to question him. He refused to answer any questions, but did not request an attorney. The deputies promptly ended the interview.

Once back in Wisconsin, petitioner was brought before a Milwaukee County Court Commissioner on the armed robbery charge. The Commissioner set bail and scheduled a preliminary examination. An attorney from the Wisconsin Public Defender’s Office represented petitioner at this initial appearance.

Later that evening, Detective Joseph Butts of the Milwaukee County Sheriff’s Department visited petitioner in jail. Butts had been assisting the Racine County, Wisconsin, police in their investigation of a murder, attempted murder, and armed burglary in the town of Caledonia; petitioner was a suspect. Butts advised petitioner of his Miranda rights, and petitioner signed a form waiving them. In this first interview, petitioner did not deny knowledge of the Caledonia crimes, but said that he had not been involved.

Butts returned two donia. He again began the encounter by advising petitioner of his Miranda rights and providing a waiver form. Petitioner placed his initials next to each of the warnings and signed the form. This time, petitioner admitted that he had been involved in the Caledonia crimes, which he described in detail. He also implicated two other men, Willie Pope and Lloyd Crowley. The statement was typed up by a detective and given to petitioner to review. Petitioner placed his initials next to every reference to himself and signed every page.

Butts and the Caledonia having in the meantime found and questioned Pope, who convinced them that he had not been involved in the Caledonia crimes. They again began the interview by administering the Miranda warnings and obtaining petitioner’s signature and initials on the waiver form. Petitioner acknowledged that he had lied about Pope’s involvement to minimize his own role in the Caledonia crimes and provided another statement recounting the events, which was transcribed, signed, and initialed as before.

The following day, petitioner was the Caledonia crimes and transferred to that jurisdiction. His pretrial motion to suppress the three incriminating statements was denied. He was convicted of second-degree murder, attempted first-degree murder, and armed robbery, and sentenced to 60 years in prison.

On appeal, petitioner argued that the trial court’s refusal to suppress the statements was reversible error. He contended that his courtroom appearance with an attorney for the West Allis crime constituted an invocation of the Miranda right to counsel, and that any subsequent waiver of that right during police-initiated questioning regarding any offense was invalid. Observing that the State’s Supreme Court had never addressed this issue, the Court of Appeals certified to that court the following question:

“Does an accused’s request for counsel at an initial appearance on a charged offense constitute an invocation of his fifth amendment right to counsel that precludes police-initiated interrogation on unrelated, uncharged offenses?” App. 16.

The Wisconsin Supreme Court answered “no.” 155 Wis. 2d 24, 454 N. W. 2d 742 (1990). We granted certiorari, 498 U. S. 937 (1990).

II

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” In Michigan v. Jackson, 475 U. S. 625 (1986), we held that once this right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated .custodial interview is ineffective. It is undisputed, and we accept for purposes of the present case, that at the time petitioner provided the incriminating statements at issue, his Sixth Amendment right had attached and had been invoked with respect to the West Allis armed robbery, for which he had been formally charged.

Sixth Amendment right, however, is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, “ ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’” United States v. Gouveia, 467 U. S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U. S. 682, 689 (1972) (plurality opinion)). And just as the right is offense specific, so also its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense specific.

“The police have an interest... in investigating new or additional crimes [after an individual is formally charged with one crime.] . . . [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities. . . .” Maine v. Moulton, 474 U. S. 159, 179-180 (1985).
“Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.” Id., at 180, n. 16.

See also Moran v. Burbine, 475 U. S. 412, 431 (1986). Because petitioner provided the statements at issue here before his Sixth Amendment right to counsel with respect to the Caledonia offenses had been (or even could have been) invoked, that right poses no bar to the admission of the statements in this case.

Petitioner relies, however, upon a different “right to counsel,” found not in the text of the Sixth Amendment, but in this Court’s jurisprudence relating to the Fifth Amendment guarantee that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U. S. 436 (1966), we established a number of prophylactic rights designed to counteract the “inherently compelling pressures” of custodial interrogation, including the right to have counsel present. Miranda did not hold, however, that those rights could not be waived. On the contrary, the opinion recognized that statements elicited during custodial interrogation would be admissible if the prosecution could establish that the suspect “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id., at 475.

In Edwards v. Arizona, 451 U. S. 477 (1981), we established a second layer of prophylaxis for the Miranda right to counsel: Once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation “until counsel has been made available to him,” 451 U. S., at 484-485—which means, we have most recently held, that counsel must be present, Minnick v. Mississippi, 498 U. S. 146 (1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,” Michigan v. Harvey, 494 U. S. 344, 350 (1990). The Edwards rule, moreover, is not offense specific: Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U. S. 675 (1988).

Having described the nature and effects of both the Sixth Amendment right to counsel and the Miranda-Edwards “Fifth Amendment” right to counsel, we come at last to the issue here: Petitioner seeks to prevail by combining the two of them. He contends that, although he expressly waived his Miranda right to counsel on every occasion he was interrogated, those waivers were the invalid product of impermissible approaches, because his prior invocation of the offense-specific Sixth Amendment right with regard to the West Allis burglary was also an invocation of the nonoffense-specific Miranda-Edwards right. We think that is false as a matter of fact and inadvisable (if even permissible) as a contrary-to-fact presumption of policy.

As to the former: The purpose of the Sixth Amendment counsel guarantee — and hence the purpose of invoking it — is to “protec[t] the unaided layman at critical confrontations” with his “expert adversary,” the government, after “the adverse positions of government and defendant have solidified” with respect to a particular alleged crime. Gouveia, 467 U. S., at 189. The purpose of the Miranda-Edwards guarantee, on the other hand — and hence the purpose of invoking it — is to protect a quite different interest: the suspect’s “desire to deal with the police only through counsel,” Edwards, supra, at 484. This is in one respect narrower than the interest protected by the Sixth Amendment guarantee (because it relates only to custodial interrogation) and in another respect broader (because it relates to interrogation regarding any suspected crime and attaches whether or not the “adversarial relationship” produced by a pending prosecution has yet arisen). To invoke the Sixth Amendment interest is, as a matter of fact, not to invoke the Miranda-Edwards interest. One might be quite willing to speak to the police without counsel present concerning many matters, but not the matter under prosecution. It can be said, perhaps, that it is likely that one who has asked for counsel’s assistance in defending against a prosecution would want counsel present for all custodial interrogation, even interrogation unrelated to the charge. That is not necessarily true, since suspects often believe that they can avoid the laying of charges by demonstrating an assurance of innocence through frank and unassisted answers to questions. But even if it were true, the likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards. The rule of that case applies only when the suspect “ha[s] expressed” his wish for the particular sort of lawyerly assistance that is the subject of Miranda. Edwards, supra, at 484 (emphasis added). It requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction. “[T]o find that [the defendant] invoked his Fifth Amendment right to counsel on the present charges merely by requesting the appointment of counsel at his arraignment on the unrelated charge is to disregard the ordinary meaning of that request.” State v. Stewart, 113 Wash. 2d 462, 471, 780 P. 2d 844, 849 (1989), cert. denied, 494 U. S. 1020 (1990).

Our holding in Michigan v. Jackson, 475 U. S. 625 (1986), does not, as petitioner asserts, contradict the foregoing distinction; to the contrary, it rests upon it. That case, it will be recalled, held that after the Sixth Amendment right to counsel attaches and is invoked, any statements obtained from the accused during subsequent police-initiated custodial questioning regarding the charge at issue (even if the accused purports to waive his rights) are inadmissible. The State in Jackson opposed that outcome on the ground that assertion of the Sixth Amendment right to counsel did not realistically constitute the expression (as Edivards required) of a wish to have counsel present during custodial interrogation. See 475 U. S., at 632-633. Our response to that contention was not that it did constitute such an expression, but that it did not have to, since the relevant question was not whether the Miranda “Fifth Amendment” right had been asserted, but whether the Sixth Amendment right to counsel had been waived. We said that since our “settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant’s request for counsel, ... we presume that the defendant requests the lawyer’s services at every critical stage of the prosecution.” 475 U. S., at 633 (emphasis added). The holding of Jackson implicitly rejects any equivalence in fact between invocation of the Sixth Amendment right to counsel and the expression necessary to trigger Edivards. If such invocation constituted a real (as opposed to merely a legally presumed) request for the assistance of counsel in custodial interrogation, it would have been quite unnecessary for Jackson to go on to establish, as it did, a new Sixth Amendment rule of no police-initiated interrogation; we could simply have cited and relied upon Edwards.

There remains to though the assertion of the Sixth Amendment right to counsel does not in fact imply an assertion of the Miranda “Fifth Amendment” right, we should declare it to be. such as a matter of sound policy. Assuming we have such an expansive power under the Constitution, it would not wisely be exercised. Petitioner’s proposed rule has only insignificant advantages. If a suspect does not wish to communicate with the police except through an attorney, he can simply tell them that when they give him the Miranda warnings. There is not the remotest chance that he will feel “badgered” by their asking to talk to him without counsel present, since the subject will not be the charge on which he has already requested counsel’s assistance (for in that event Jackson would preclude initiation of the interview) and he will not have rejected uncounseled interrogation on any subject before (for in that event Edwards would preclude initiation of the interview). The proposed rule would, however, seriously impede effective law enforcement. The Sixth Amendment right to counsel attaches at the first formal proceeding against an accused, and in most States, at least with respect to serious offenses, free counsel is made available at that time and ordinarily requested. Thus, if we were to adopt petitioner’s rule, most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned. Since the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good, society would be the loser. Admissions of guilt resulting from valid Miranda waivers “are more than merely ‘desirable’; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” Moran, 475 U. S., at 426 (citation omitted).

Petitioner urges upon us the desirability of providing a “clear and unequivocal” guideline for the police: no police-initiated questioning of any person in custody who has requested counsel to assist him in defense or in interrogation. But the police do not need our assistance to establish such a guideline; they are free, if they wish, to adopt it on their own. Of course it is our task to establish guidelines for judicial review. We like them to be “clear and unequivocal,” see, e. g., Roberson, 486 U. S., at 681-682, but only when they guide sensibly and in a direction we are authorized to go. Petitioner’s proposal would in our view do much more harm than good, and is not contained within, or even in furtherance of, the Sixth Amendment’s right to counsel or the Fifth Amendment’s right against compelled self-incrimination.

* * *

"This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.” Douglas v. Jeannette, 319 U. S. 157, 181 (1943) (opinion of Jackson, J.). We decline to add yet another story to Miranda. The judgment of the Wisconsin Supreme Court is

Affirmed.

Justice Kennedy,

concurring.

I join the opinion of the Court in all respects. Its sensible recognition that invocation of the Sixth Amendment right to counsel is specific to the offense in question should apply as well to requests for counsel under the Fifth Amendment. See Arizona v. Roberson, 486 U. S. 675, 688 (1988) (Kennedy, J., dissenting). For those in custody, Edwards v. Arizona, 451 U. S. 477 (1981), and its progeny go far to protect an individual who desires the assistance of counsel during interrogation. Limiting the extraordinary protections of Edwards to a particular investigation would not increase the risk of confessions induced by official efforts to wear down the will of a suspect. Having adopted an offense-specific rule for invocation of the Sixth Amendment right to counsel, the Court should devote some attention to bringing its Fifth and Sixth Amendment jurisprudence into a logical alignment, and should give uniform, fair, and workable guidelines for the criminal justice system.

Even if petitioner had invoked his Fifth Amendment right with respect to the West Allis armed robbery, I do not believe the authorities should have been prohibited from ques-' tioning him in connection with the Caledonia offenses.

Justice Stevens,

with whom Justice Marshall and Justice Blackmun join, dissenting.

The Court’s opinion demeans the importance of the right to counsel. As a practical matter, the opinion probably will have only a slight impact on current custodial interrogation procedures. As a theoretical matter, the Court’s innovative development of an “offense-specific” limitation on the scope of the attorney-client relationship can only generate confusion in the law and undermine the protections that undergird our adversarial system of justice. As a symbolic matter, today’s decision is ominous because it reflects a preference for an inquisitorial system that regards the defense lawyer as an impediment rather than a servant to the cause of justice.

r — <

The predicate for the Court’s entire analysis is the failure of the defendant at the preliminary hearing to make a “statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” Ante, at 178. If petitioner in this case had made such a statement indicating that he was involáng his Fifth Amendment right to counsel as well as his Sixth Amendment right to counsel, the entire offense-specific house of cards that the Court has erected today would collapse, pursuant to our holding in Arizona v. Roberson, 486 U. S. 675 (1988), that a defendant who invokes the right to counsel for interrogation on one offense may not be reapproached regarding any offense unless counsel is present.

In future expected to make sure that they, or their clients, make a statement on the record that will obviate the consequences of today’s holding. That is why I think this decision will have little, if any, practical effect on police practices.

II

The outcome of this case is determined by the Court s parsimonious “offense-specific” description of the right to counsel guaranteed by the Sixth Amendment. The Court’s definition is inconsistent with the high value our prior cases have placed on this right, with the ordinary understanding of the scope of the right, and with the accepted practice of the legal profession.

In Michigan v. Jackson, 475 we the defendant’s invocation of his right to the assistance of counsel at arraignment prohibited the police from initiating a postarraignment custodial interrogation without notice to his lawyer. After explaining that our prior cases required us “to give a broad, rather than a narrow, interpretation to a defendant’s request for counsel,” we squarely rejected “the State’s suggestion that respondents’ requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings.” Id., at 633. Instead, we noted that “it is the State that has the burden of establishing a valid waiver [of the right to counsel]. Doubts must be resolved in favor of protecting the constitutional claim.” Ibid. (citation omitted).

Today, however, the Court accepts a narrow, rather than a broad, interpretation of the same right. It accepts the State’s suggestion that although, under our prior holding in Michigan v. Jackson, a request for the assistance of counsel at a formal proceeding such as an arraignment constitutes an invocation of the right to counsel at police-initiated custodial interrogation as well, such a request only covers interrogation about the specific charge that has already been filed and for which the formal proceeding was held. Today’s approach of construing ambiguous requests for counsel narrowly and presuming a waiver of rights is the opposite of that taken in Jackson.

The Court’s holding today moreover rejects the commonsense evaluation of the nature of an accused’s request for counsel that we expressly endorsed in Jackson:

“We also agree with the comments of the Michigan Supreme Court about the nature of an accused’s request for counsel:
“‘Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge. The simple fact that defendant has requested an attorney indicátes that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.’ 421 Mich., at 63-64, 365 N. W. 2d, at 67.” Id., at 633-634, n. 7.

The Court explains away this commonsense understanding by stating that although “[t]hose observations were perhaps true in the context of deciding whether a request for the assistance of counsel in defending against a particular charge implied a desire to have that counsel serve as an ‘intermediary’ for all further interrogation on that charge[, t]hey are assuredly not true in the quite different context of deciding whether such a request implies a desire never to undergo custodial interrogation, about anything, without counsel present.” Ante, at 180, n. 1. Even assuming that this explanation by the Court could be supported if the custodial interrogation related to an offense that was entirely separate from the charge for which a suspect had invoked his Sixth Amendment right to counsel, it cannot explain away the commonsense reality that petitioner in this case could not have known that his invocation of his Sixth Amendment right to counsel was restricted to the Milwaukee County offense, given that investigations of the Milwaukee County offense and the Caledonia offense were concurrent and conducted by overlapping personnel.

Finally, the Court’s “offense-specific” characterization of the constitutional right to counsel ignores the substance of the attorney-client relationship that the legal profession has developed over the years. The scope of the relationship between an individual accused of crime and his attorney is as broad as the subject matter that might reasonably be encompassed by negotiations for a plea bargain or the contents of a presentence investigation report. Any notion that a constitutional right to counsel is, or should be, narrowly defined by the elements of a pending charge is both unrealistic and invidious. Particularly given the implication that McNeil would be given favorable treatment if he told “his side of the story” as to either or both crimes to the Milwaukee County officers, I find the Court’s restricted construal of McNeil’s relationship with his appointed attorney at the arraignment on the armed robbery charges to be unsupported.

In any case, the offense-specific limitation on the Sixth Amendment right to counsel can only generate confusion in the law. The parties and the Court have assumed in this case, for the purposes of analyzing the legal issues, that the custodial interrogation of McNeil involved an offense (murder) that was completely unrelated to the pending charge of armed robbery. The Court therefore does not flesh out the precise boundaries of its newly created “offense-specific” limitation on a venerable constitutional right. I trust its boundaries will not be patterned after the Court’s double jeopardy jurisprudence, cf. Blockburger v. United States, 284 U. S. 299 (1932), and I can only wonder how much leeway it will accord the police to file charges selectively in order to preserve opportunities for custodial interrogation, particularly if the Court is so unquestioningly willing to treat the offenses in this case as separate even though the investigations were concurrent and conducted by overlapping personnel. Whatever the future may portend, the Court’s new rule can only dim the “bright-line” quality of prior cases such as Edwards v. Arizona, 451 U. S. 477 (1981), Solem v. Stumes, 465 U. S. 638 (1984), and Michigan v. Jackson, 475 U. S. 625 (1986).

Ill

In the final analysis, the fear that making counsel available to persons held in custody would “seriously impede effective law enforcement.” Ante, at 180. The magnitude of the Court’s alarm is illuminated by its use of italics:

“Thus, if we were to adopt persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned.” Ante, at 181.

Of course, the Court is quite wrong and its fears are grossly exaggerated. The fears are exaggerated because, as I have explained, today’s holding will probably affect very few cases in the future. The fears are misguided because a contrary rule would not make all pretrial detainees “unapproachable”; it would merely serve to ensure that a suspect’s statements during custodial interrogation are truly voluntary.

A contrary rule would tion. Undergirding our entire line of cases requiring the police to follow fair procedures when they interrogate presumptively innocent citizens suspected of criminal wrongdoing is the longstanding recognition that an adversarial system of justice can function effectively only when the adversaries communicate with one another through counsel and when laypersons are protected from overreaching by more experienced and skilled professionals. Whenever the Court ignores the importance of fair procedure in this context and describes the societal interest in obtaining “uncoerced confessions” from pretrial detainees as an “unmitigated good,” the Court is revealing a preference for an inquisitorial system of justice. As I suggested in Moran v. Burbine, 475 U. S. 412 (1986):

“This case turns on a proper appraisal of the role of the lawyer in our society. If a lawyer is seen as a nettlesome obstacle to the pursuit of wrongdoers — as in an inquisitorial society — then the Court’s decision today makes a good deal of sense. If a lawyer is seen as an aid to the understanding and protection of constitutional rights — as in an accusatorial society — then today’s decision makes no sense at all.” Id., at 468 (Stevens, J., dissenting).

The Court’s refusal to acknowledge any “danger of ‘subtle compulsion’” in a case of this kind evidences an inability to recognize the difference between an inquisitorial and an adversarial system of justice. Accordingly, I respectfully dissent.

       A footnote in Jackson, 475 U. S., at 633-634, n. 7, quoted with approval statements by the Michigan Supreme Court to the effect that the average person does not ‘“understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel,’” that it “‘makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge,’ ” and that “ ‘[t]he simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.’” Michigan v. Bladel, 421 Mich. 39, 63-64, 365 N. W. 2d 56, 67 (1984). Those observations were perhaps true in the context of deciding whether a request for the assistance of counsel in defending against a particular charge implied a desire to have that counsel serve as an “intermediary” for all further interrogation on that charge. They are assuredly not true in the quite different context of deciding whether such a request implies a desire never to undergo custodial interrogation, about anything, without counsel present.

       The dissent condemns these sentiments as “revealing a preference for an inquisitorial system of justice.” Post, at 189. We cannot imagine what this means. What makes a system adversarial rather than inquisitorial is not the presence of counsel, much less the presence of counsel where the defendant has not requested it; but rather, the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties. In the inquisitorial criminal process of the civil law, the defendant ordinarily has counsel; and in the adversarial criminal process of the common law, he sometimes does not. Our system of justice is, and has always been, an inquisitorial one at the investigatory stage (even the grand jury is an inquisitorial body), and no other disposition is conceivable. Even if detectives were to bring impartial magistrates around with them to all interrogations, there would be no decision for the impartial magistrate to umpire. If all the dissent means by a “preference for an inquisitorial system” is a preference not to require the presence of counsel during an investigatory interview where the interviewee has not requested it — that is a strange way to put it, but we are guilty.

       The dissent predicts that the result in this case will routinely be circumvented when, “[i]n future preliminary hearings, competent counsel. . . make sure that they, or their clients, make a statement on the record” invoking the Miranda right to counsel. Post, at 184. We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than “custodial interrogation” — which a preliminary hearing will not always, or even usually, involve, cf. Pennsylvania v. Muniz, 496 U. S. 582, 601-602 (1990) (plurality opinion); Rhode Island v. Innis, 446 U. S. 291, 298-303 (1980). If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect. Assuming, however, that an assertion at arraignment would be effective, and would be routinely made, the mere fact that adherence to the principle of our decisions will not have substantial consequences is no reason to abandon that principle. It would remain intolerable that a person in custody who had expressed no objection to being questioned would be unapproachable.

       After McNeil was first apprehended in Omaha pursuant to the Milwaukee County arrest warrant, Deputy Sheriff Smukowski of Milwaukee County and a colleague from the same department .traveled to Omaha for purposes of transporting McNeil back to Wisconsin. Smukowski testified at trial that prior to going to Omaha he had been aware that McNeil was a suspect in the Caledonia murder as well as in the Milwaukee County armed robbery. Tr. 4-5 (Nov. 9, 1987). He further testified that on May 21, 1987, he and his colleague talked to McNeil during the transport back to Wisconsin “about the murder case and the armed robbery,” id., at 7, and that they were operating under the understanding that they would take “a statement as to either case” if McNeil would provide one, id., at 9. Smukowski testified that they urged petitioner to “tell his side of the story” in order that his cooperation might help him later, id., at 8, and that prior to leaving Omaha with petitioner, Smukowski and his colleague used petitioner’s help in trying to locate Crowley, another suspect in the Caledonia murder, in Omaha, id., at 13.

       In his opinion dissenting for himself and two other members of the Wisconsin Supreme Court, Chief Justice Heffernan wrote:
      “It is apparent that there is danger of ‘subtle compulsion’ when a defendant requests the assistance of an attorney at an initial appearance and is nevertheless subjected to further interrogation while custody continues. Whether a request for an attorney is made to a police officer or to a judge, whether in the jail or during an initial appearance, the dangers of the inherent pressure of custodial interrogation when not having an attorney present are the same. Just as the Edwards [v. Arizona, 451 U. S. 477 (1981),] protection is not dependent upon the subject matter of the interrogation, neither is this protection dependent upon whether the request for assistance of counsel is made to a police officer while in custody or to a magistrate at an initial appearance before the defendant is interrogated.” 155 Wis. 2d 24, 50, 454 N. W. 2d 742, 752-753 (1990).
      See also United States ex rel. Espinoza v. Fairman, 813 F. 2d 117 (CA7 1987).


source: Caselaw Access Project

author:
Justice Kennedy Justice Marshall,
      Justice Stevens,

license: Public Domain

text:
    LITTON FINANCIAL PRINTING DIVISION, A DIVISION OF LITTON BUSINESS SYSTEMS, INC. v. NATIONAL LABOR RELATIONS BOARD et al.
    No. 90-285.
    Argued March 20, 1991
    Decided June 13, 1991

      M. J. Diederich argued the cause and filed briefs for petitioner.

      Deputy Solicitor General Wallace argued the cause for the federal respondent in support of petitioner pursuant to this Court’s Rule 12.4. With him on the briefs were Solicitor General Starr, Michael R. Lazerwitz, Norton J. Come, Linda Sher, and David A. Fleischer. David A. Rosenfeld argued the cause for the private respondent. With him on the brief were Victor J. Van Bourg, Marsha S. Berzon, Steven J. Kaplan, and Laurence Gold.

         John S. Irving and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.

   Justice Kennedy

delivered the opinion of the Court.

This case requires us to determine whether a dispute over layoffs which occurred well after expiration of a collective-bargaining agreement must be said to arise under the agreement despite its expiration. The question arises in the context of charges brought by the National Labor Relations Board (Board), alleging an unfair labor practice in violation of §§ 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, 29 U. S. C. §§ 158(a)(1) and (5). We interpret our earlier decision in Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243 (1977).

► — I

Petitioner Litton operated a check printing plant in Santa Clara, California. The plant utilized both coldtype and hot-type printing processes. Printing Specialties & Paper Products Union No. 777, Affiliated With District Council No. 1 (Union), represented the production employees at the plant. The Union and Litton entered into a collective-bargaining agreement (Agreement) which, with extensions, remained in effect until October 3, 1979. Section 19 of the Agreement is a broad arbitration provision:

“Differences that may arise between the parties hereto regarding this Agreement and any alleged violations of the Agreement, the construction to be placed on any clause or clauses of the Agreement shall be determined by arbitration in the manner hereinafter set forth.” App. 34.

Section 21 of the Agreement sets forth a two-step grievance procedure, at the conclusion of which, if a grievance cannot be resolved, the matter may be submitted for binding arbitration. Id., at 35.

Soon before the Agreement was an sought decertification of the Union. The Board conducted an election on August 17, 1979, in which the Union prevailed by a vote of 28 to 27. On July 2, 1980, after much postelection legal maneuvering, the Board issued a decision to certify the Union. No contract negotiations occurred during this period of uncertainty over the Union’s status.

Litton decided to test the by refusing to bargain with the Union. The Board rejected Litton’s position and found its refusal to bargain an unfair labor practice. Litton Financial Printing Division, 256 N. L. R. B. 516 (1981). Meanwhile, Litton had decided to eliminate its coldtype operation at the plant, and in late August and early September 1980, laid off 10 of the 42 persons working in the plant at that time. The laid off employees worked either primarily or exclusively with the coldtype operation, and included 6 of the 11 most senior employees in the plant. The layoffs occurred without any notice to the Union.

The Union filed identical grievances on behalf of each laid off employee, claiming a violation of the Agreement, which had provided that “in case of layoffs, lengths of continuous service will be the determining factor if other things such as aptitude and ability are equal.” App. 30. Litton refused to submit to the grievance and arbitration procedure or to negotiate over the decision to lay off the employees, and took a position later interpreted by the Board as a refusal to arbitrate under any and all circumstances. It offered instead to negotiate concerning the effects of the layoffs.

On November 24, 1980, the General Counsel for the Board issued a complaint alleging that Litton’s refusal to process the grievances amounted to an unfair labor practice within the meaning of §§ 8(a)(1) and (5) of the NLRA, 29 U. S. C. §§ 158(a)(1) and (5). App. 15. On September 4, 1981, an Administrative Law Judge found that Litton had violated the NLRA by failing to process the grievances. Id., at 114-115. Relying upon the Board’s decision in American Sink Top & Cabinet Co., 242 N. L. R. B. 408 (1979), the Administrative Law Judge went on to state that if the grievances remained unresolved at the conclusion of the grievance process, Litton could not refuse to submit them to arbitration. App. 115— 118. The Administrative Law Judge held also that Litton violated §§ 8(a)(1) and (5) when it bypassed the Union and paid severance wages directly to the 10 laid off employees, and Litton did not contest that determination in further proceedings.

Over six years later, the Board affirmed in part and reversed in part the decision of the Administrative Law Judge. 286 N. L. R. B. 817 (1987). The Board found that Litton had a duty to bargain over the layoffs and violated § 8(a) by failing to do so. Based upon well-recognized Board precedent that the unilateral abandonment of a contractual grievance procedure upon expiration of the contract violates §§ 8(a)(1) and (5), the Board held that Litton had improperly refused to process the layoff grievances. See Bethlehem Steel Co., 136 N. L. R. B. 1500, 1503 (1962), enforced in pertinent part, 320 F. 2d 615 (CA3 1963). The Board proceeded to apply its recent decision in Indiana & Michigan Electric Co., 284 N. L. R. B. 53 (1987), which contains the Board’s current understanding of the principles of postexpiration arbitrability and of our opinion in Nolde Brothers, Inc. v. Bakery Workers, supra. The Board held that Litton’s “wholesale repudiation” of its obligation to arbitrate any contractual grievance after the expiration of the Agreement also violated §§ 8(a)(1) and (5), as the Agreement’s broad arbitration clause lacked

“language sufficient to overcome the obligation to arbitrate imposed by the contract extended to disputes arising under the contract and occurring after the contract had expired. Thus, [Litton] remained ‘subject to a potentially viable contractual commitment to arbitrate even after the [Agreement] expired.’” 286 N. L. R. B., at 818 (citation omitted).

Litton did not seek review of, and we do not address here, the Board’s determination that Litton committed an unfair labor practice by its unilateral abandonment of the grievance process and wholesale repudiation of any postexpiration obligation to arbitrate disputes.

In fashioning a remedy, on arbitrability of these particular layoff grievances. Following Indiana & Michigan, the Board declared its determination to order arbitration “only when the grievances at issue ‘arise under’ the expired contract.” 286 N. L. R. B., at 821 (citing Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243 (1977)). In finding that the dispute about layoffs was outside this category, the Board reasoned as follows:

“The conduct that triggered the grievances . . . occurred after the contract had expired. The right to layoff by seniority if other factors such as ability and experience are equal is not ‘a right worked for or accumulated over time.’ Indiana & Michigan, supra at 61. And, as in Indiana & Michigan Electric, there is no indication here that ‘the parties contemplated that such rights could ripen or remain enforceable even after the contract expired.’ Id. (citation omitted). Therefore, [Litton] had no contractual obligation to arbitrate the grievances.” 286 N. L. R. B., at 821-822.

Although the Board refused to order arbitration, it did order Litton to process the grievances through the two-step griev-anee procedure, to bargain with the Union over the layoffs, and to provide a limited backpay remedy.

The Board sought enforcement of its order, and both the Union and Litton petitioned for review. The Court of Appeals enforced the Board’s order, with the exception of that portion holding the layoff grievances not arbitrable. 893 F. 2d 1128 (CA9 1990). On that question, the Court of Appeals was willing to “assume without deciding that the Board’s Indiana & Michigan decision is a reasonably defensible construction of the section 8(a)(5) duty to bargain.” Id., at 1137. The court decided, nevertheless, that the Board had erred, because the right in question, the right to layoff in order of seniority if other things such as aptitude and ability are equal, did arise under the Agreement. The Court of Appeals thought the Board’s contrary conclusion was in conflict with two later Board decisions, where the Board had recognized that seniority rights may arise under an expired contract, United Chrome Products, Inc., 288 N. L. R. B. 1176 (1988), and Uppco, Inc., 288 N. L. R. B. 937 (1988).

The court cited a second conflict, one between Indiana & Michigan and the court’s own interpretation of Nolde Bros. in Local Joint Executive Bd. of Las Vegas Culinary Workers Union, Local 226 v. Royal Center, Inc., 796 F. 2d 1159 (CA9 1986). In Royal Center, the Court of Appeals had rejected the argument that only rights accruing or vesting under a contract prior to termination are covered by the posttermination duty to arbitrate. Id., at 1163.

Litton petitioned for a writ of certiorari. Because of substantial disagreement as to the proper application of our decision in Nolde Brothers, we granted review limited to the question of arbitrability of the layoff grievances. 498 U. S. 966 (1990).

II

A

Sections 8(a)(5) and 8(d) of the NLRA, 29 U. S. C. §§ 158(a) (5) and (d), require an employer to bargain “in good faith with respect to wages, hours, and other terms and conditions of employment.” The Board has taken the position that it is difficult to bargain if, during negotiations, an employer is free to alter the very terms and conditions that are the subject of those negotiations. The Board has determined, with our acceptance, that an employer commits an unfair labor practice if, without bargaining to impasse, it effects a unilateral change of an existing term or condition of employment. See NLRB v. Katz, 369 U. S. 736 (1962). In Katz the union was newly certified and the parties had yet to reach an initial agreement. The Katz doctrine has been extended as well to cases where, as here, an existing agreement has expired and negotiations on a new one have yet to be completed. See, e. g., Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U. S. 539, 544, n. 6 (1988).

Numerous terms and conditions of employment have been held to be the subject of mandatory bargaining under the NLRA. See generally 1 C. Morris, The Developing Labor Law 772-844 (2d ed. 1983). Litton does not question that arrangements for arbitration of disputes are a term or condition of employment and a mandatory subject of bargaining. See id., at 813 (citing cases); United States Gypsum Co., 94 N. L. R. B. 112, 131 (1951).

The Board has ruled that most mandatory subjects of bargaining are within the Katz prohibition on unilateral changes. The Board has identified some terms and conditions of employment, however, which do not survive expiration of an agreement for purposes of this statutory policy. For instance, it is the Board’s view that union security and dues check-off provisions are excluded from the unilateral change doctrine because of statutory provisions which permit these obligations only when specified by the express terms of a collective-bargaining agreement. See 29 U. S. C. § 158(a)(3) (union security conditioned upon agreement of the parties); § 186(c)(4) (dues check-off valid only until termination date of agreement); Indiana & Michigan, 284 N. L. R. B., at 55 (quoting Bethlehem Steel, 136 N. L. R. B., at 1502). Also, in recognition of the statutory right to strike, no-strike clauses are excluded from the unilateral change doctrine, except to the extent other dispute resolution methods survive expiration of the agreement. See 29 U. S. C. §§ 158(d)(4), 163 (union’s statutory right to strike); Southwestern Steel & Supply, Inc. v. NLRB, 257 U. S. App. D. C. 19, 23, 806 F. 2d 1111, 1114 (1986).

In Hilton-Davis Chemical Co., 185 N. L. R. B. 241 (1970), the Board determined that arbitration clauses are excluded from the prohibition on unilateral changes, reasoning that the commitment to arbitrate is a “voluntary surrender of the right of final decision which Congress . . . reserved to [the] parties. . . . [Arbitration is, at bottom, a consensual surrender of the economic power which the parties are otherwise free to utilize.” Id., at 242. The Board further relied upon our statements acknowledging the basic federal labor policy that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 582 (1960). See also 29 U. S. C. § 173(d) (phrased in terms of parties’ agreed-upon method of dispute resolution under an existing bargaining agreement). Since Hilton-Davis, the Board has adhered to the view that an arbitration clause does not, by operation of the NLRA as interpreted in Katz, continue in effect after expiration of a collective-bargaining agreement.

B

The Union argues that we should reject the Board’s decision in Hilton-Davis Chemical Co., and instead hold that arbitration provisions are within Katz’ prohibition on unilateral changes. The unilateral change doctrine, and the exclusion of arbitration from the scope of that doctrine, represent the Board’s interpretation of the NLRA requirement that parties bargain in good faith. And “[i]f the Board adopts a rule that is rational and consistent with the Act . . . then the rule is entitled to deference from the courts.” Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 42 (1987); see, e. g., NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 786-787 (1990).

We think the Co. is both rational and consistent with the Act. The rule is grounded in the strong statutory principle, found in both the language of the NLRA and its drafting history, of consensual rather than compulsory arbitration. See Indiana & Michigan, supra, at 57-58; Hilton-Davis Chemical Co., supra. The rule conforms with our statement that “[n]o obligation to arbitrate a labor dispute arises solely by operation of law. The law compels a party to submit his grievance to arbitration only if he has contracted to do so.” Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 374 (1974). We reaffirm today that under the NLRA arbitration is a matter of consent, and that it will not be imposed upon parties beyond the scope of their agreement.

In the absence of a binding method for resolution of post-expiration disputes, a party may be relegated to filing unfair labor practice charges with the Board if it believes that its counterpart has implemented a unilateral change in violation of the NLRA. If, as the Union urges, parties who favor labor arbitration during the term of a contract also desire it to resolve postexpiration disputes, the parties can consent to that arrangement by explicit agreement. Further, a collective-bargaining agreement might be drafted so as to eliminate any hiatus between expiration of the old and execution of the new agreement, or to remain in effect until the parties bargain to impasse. Unlike the Union’s suggestion that we impose arbitration of postexpiration disputes upon parties once they agree to arbitrate disputes arising under a contract, these, alternatives would reinforce the statutory policy that arbitration is not compulsory.

I — I f — I I — I

The Board argues that it is entitled to substantial deference here because it has determined the remedy for an unfair labor practice. As noted above, we will uphold the Board’s interpretation of the NLRA so long as it is “rational and consistent with the Act.” Fall River Dyeing & Finishing Corp. v. NLRB, supra, at 42. And we give the greatest latitude to the Board when its decision reflects its “‘difficult and delicate responsibility’ of reconciling conflicting interests of labor and management,” NLRB v. J. Weingarten, Inc., 420 U. S. 251, 267 (1975). We have accorded the Board considerable authority to structure its remedial orders to effect the purposes of the NLRA and to order the relief it deems appropriate. See Shepard v. NLRB, 459 U. S. 344, 352 (1983); Virginia Electric & Power Co. v. NLRB, 319 U. S. 533, 540 (1943).

The portion of does discuss the appropriate remedy for a violation of the NLRA. But it does not follow that we must accord the same deference we recognized in Virginia Electric & Power Co. and Shepard. Here, the Board’s remedial discussion is not grounded in terms of any need to arbitrate these grievances in order “to effectuate the policies of the Act.” Virginia Electric & Power Co., supra, at 540. Rather, the Board’s decision not to order arbitration of the layoff grievances rests upon its interpretation of the Agreement, applying our decision in Nolde Brothers and the federal common law of collective-bargaining agreements. The Board now defends its decision on the ground that it need not “reflexively order that which a complaining party may regard as ‘complete relief’ for every unfair labor practice,” Shepard v. NLRB, supra, at 352; but its decision did not purport to rest upon such grounds.

Although the bargaining agreements in the context of unfair labor practice adjudication, see NLRB v. C & C Plywood Corp., 385 U. S. 421 (1967), the Board is neither the sole nor the primary source of authority in such matters. “Arbitrators and courts are still the principal sources of contract interpretation.” NLRB v. Strong, 393 U. S. 357, 360-361 (1969). Section 301 of the Labor Management Relations Act, 1947 (LMRA), 29 U. S. C. § 185, “authorizes federal courts to fashion a body of federal law for the enforcement of . . . collective bargaining agreements.” Textile Workers v. Lincoln Mills of Alabama, 353 U. S. 448, 451 (1957) (emphasis added). We would risk the development of conflicting principles were' we to defer to the Board in its interpretation of the contract, as distinct from its devising a remedy for the unfair labor practice that follows from a breach of contract. We cannot accord deference in contract interpretation here only to revert to our independent interpretation of collective-bargaining agreements in a case arising under § 301. See Local Union 1395, Int’l Brotherhood of Electrical Workers v. NLRB, 254 U. S. App. D. C. 360, 363-364, 797 F. 2d 1027, 1030-1031 (1986).

IV

The duty not to effect unilateral changes in most terms and conditions of employment, derived from the statutory command to bargain in good faith, is not the sole source of possible constraints upon the employer after the expiration date of a collective-bargaining agreement. A similar duty may arise as well from the express or implied terms of the expired agreement itself. This, not the provisions of the NLRA, was the source of the obligation which controlled our decision in Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243 (1977). We now discuss that precedent in the context of the case before us.

In Nolde Brothers, a union brought suit under § 301 of the LMRA, 29 U. S. C. § 185, to compel arbitration. Four days after termination of a collective-bargaining agreement, the employer decided to cease operations. The employer settled employee wage claims, but refused to pay severance wages called for in the agreement, and declined to arbitrate the resulting dispute. The union argued that these wages

“were in the nature of‘accrued’ or ‘vested’ rights, earned by employees during the term of the contract on essentially the same basis as vacation pay, but payable only upon termination of employment.” Nolde Brothers, 430 U. S., at 248.

We agreed that

“whatever the outcome, the resolution of that claim hinges on the interpretation ultimately given the contract clause providing for severance pay. The dispute therefore, although arising after the expiration of the collective-bargaining contract, clearly arises under that contract.” Id., at 249 (emphasis in original).

We acknowledged that “the arbitration duty is a creature of the collective-bargaining agreement” and that the matter of arbitrability must be determined by reference to the agreement, rather than by compulsion of law. Id., at 250-251. With this understanding, we held that the extensive obligation to arbitrate under the contract in question was not consistent with an interpretation that would eliminate all duty to arbitrate as of the date of expiration. That argument, we noted,

“would preclude a order even when the dispute arose during the life of the contract but arbitration proceedings had not begun before termination. The same would be true if arbitration processes began but were not completed, during the contract’s term.” Id., at 251.

We found “strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract,” id., at 253, and noted that “the parties’ failure to exclude from arbitrability contract disputes arising after termination . . . affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship,” id., at 255. We found a presumption in favor of postexpiration arbitration of matters unless “negated expressly or by clear implication,” ibid., but that conclusion was limited by the vital qualification that arbitration was of matters and disputes arising out of the relation governed by contract.

A

Litton argues that provisions contained in the Agreement rebut the Nolde Brothers presumption that the duty to arbitrate disputes arising under an agreement outlasts the date of expiration. The Agreement provides that its stipulations “shall be in effect for the time hereinafter specified,” App. 22, in other words, until the date of expiration and no longer. The Agreement’s no-strike clause, which Litton characterizes as a quid pro quo for arbitration, applies only “during the term of this [a]greement,” id., at 34. Finally, the Agreement provides for “interest arbitration” in case the parties are unable to conclude a successor agreement, id., at 53-55, proving that where the parties wished for arbitration other than to resolve disputes as to contract interpretation, they knew how to draft such a clause. These arguments cannot prevail. The Agreement’s unlimited arbitration clause, by which the parties agreed to arbitrate all “[djifferences that may arise between the parties” regarding the Agreement, violations thereof, or “the construction to be placed on any clause or clauses of the Agreement,” id., at 34, places it within the precise rationale of Nolde Brothers. It follows that if a dispute arises under the contract here in question, it is subject to arbitration even in the postcontract period.

B

With these matters resolved, we come to the crux of our inquiry. We agree with the approach of the Board and those courts which have interpreted Nolde Brothers to apply only where a dispute has its real source in the contract. The object of an arbitration clause is to implement a contract, not to transcend it. Nolde Brothers does not announce a rule that postexpiration grievances concerning terms and conditions of employment remain arbitrable. A rule of that sweep in fact would contradict the rationale of Nolde Brothers. The Nolde Brothers presumption is limited to disputes arising under the contract. A postexpiration grievance can be said to arise under the contract only where it involves facts and occurrences that arose before expiration, where an action taken after expiration infringes a right that accrued or vested under the agreement, or where, under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement.

Any other reading of Nolde Brothers seems to assume that postexpiration terms and conditions of employment which coincide with the contractual terms can be said to arise under an expired contract, merely because the contract would have applied to those matters had it not expired. But that interpretation fails to recognize that an expired contract has by its own terms released all its parties from their respective contractual obligations, except obligations already fixed under the contract but as yet unsatisfied. Although after expiration most terms and conditions of employment are not subject to unilateral change, in order to protect the statutory right to bargain, those terms and conditions no longer have force by virtue of the contract. See Office and Professional Employees Ins. Trust Fund v. Laborers Funds Administrative Office of Northern California, Inc., 783 F. 2d 919, 922 (CA9 1986) ("An expired [collective-bargaining agreement] . . . is no longer a ‘legally enforceable document’” (citation omitted)); cf. Derrico v. Sheehan Emergency Hosp., 844 F. 2d 22, 25-27 (CA2 1988) (Section 301 of the LMRA, 29 U. S. C. § 185, does not provide for federal court jurisdiction where a bargaining agreement has expired, although rights and duties under the expired agreement “retain legal significance because they define the status quo” for purposes of the prohibition on unilateral changes).

The difference is as elemental as that between Nolde Brothers and Katz. Under Katz, terms and conditions continue in effect by operation of the NLRA. They are no longer agreed-upon terms; they are terms imposed by law, at least so far as there is no unilateral right to change them. As the Union acknowledges, the obligation not to make unilateral changes is “rooted not in the contract but in preservation of existing terms and conditions of employment and applies before any contract has been negotiated.” Brief for Respondent Union 34, n. 21. Katz illustrates this point with utter clarity, for in Katz the employer was barred from imposing unilateral changes even though the parties had yet to execute their first collective-bargaining agreement.

Our decision in Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U. S. 539 (1988), further demonstrates the distinction between contractual obligations and postexpiration terms imposed by the NLRA. There, a bargaining agreement required employer contributions to a pension fund. We assumed that under Katz the employer’s failure to continue contributions after expiration of the agreement could constitute an unfair labor practice, and if so the Board could enforce the obligation. We rejected, however, the contention that such a failure amounted to a violation of the ERISA obligation to make contributions “under the terms of a collectively bargained agreement . . . in accordance with the terms and conditions of . . . such agreement.” 29 U. S. C. § 1145. Any postexpiration obligation to contribute was imposed by the NLRA, not by the bargaining agreement, and so the District Court lacked jurisdiction under § 502(g)(2) of ERISA, 29 U. S. C. § 1132(g)(2), to enforce the obligation.

As with the obligation to make pension contributions in Advanced Lightweight Concrete Co., other contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement. Exceptions are determined by contract interpretation. Rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. And of course, if a collective-bargaining agreement provides in explicit terms that certain benefits continue after the agreement’s expiration, disputes as to such continuing benefits may be found to arise under the agreement, and so become subject to the contract’s arbitration provisions. See United Steelworkers of America v. Fort Pitt Steel Casting, Division of Conval-Penn, Inc., 598 F. 2d 1273 (CA3 1979) (agreement provided for continuing medical benefits in the event of postexpiration labor dispute).

Finally, as we found in sions relating to remedies and dispute resolution — for example, an arbitration provision — may in some cases survive in order to enforce duties arising under the contract. Nolde Brothers’ statement to that effect under § 301 of the LMRA is similar to the rule of contract interpretation which might apply to arbitration provisions of other commercial contracts. We presume as a matter of contract interpretation that the parties did not intend a pivotal dispute resolution provision to terminate for all purposes upon the expiration of the agreement.

C

The Union, and Justice Stevens’ dissent, argue that we err in reaching the merits of the issue whether the post-termination grievances arise under the expired agreement because, it is said, that is an issue of contract interpretation to be submitted to an arbitrator in the first instance. Whether or not a company is bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the court, and a party cannot be forced to “arbitrate the arbitrability question.” AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 651 (1986). We acknowledge that where an effective bargaining agreement exists between the parties, and the agreement contains a broad arbitration clause, “there is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’” Id., at 650 (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 582-583 (1960)). But we refuse to apply that presumption wholesale in the context of an expired bargaining agreement, for to do so would make limitless the contractual obligation to arbitrate. Although “‘[djoubts should be resolved in favor of coverage,’” AT&T Technologies, supra, at 650, we must determine whether the parties agreed to arbitrate this dispute, and we cannot avoid that duty because it requires us to interpret a provision of a bargaining agreement.

We apply these principles to the layoff grievances in the present case. The layoffs took place almost one year after the Agreement had expired. It follows that the grievances are arbitrable only if they involve rights which accrued or vested under the Agreement, or rights which carried over after expiration of the Agreement, not as legally imposed terms and conditions of employment but as continuing obligations under the contract.

The contractual right at issue, that “in case of layoffs, lengths of continuous service will be the determining factor if other things such as aptitude and ability are equal,” App. 30, involves a residual element of seniority. Seniority provisions, the Union argues, “create a form of earned advantage, accumulated over time, that can be understood as a special form of deferred compensation for time already worked.” Brief for Respondent Union 23-25, n. 14. Leaving aside the question whether a provision requiring all layoffs to proceed in inverse order of seniority would support an analogy to the severance pay at issue in Nolde Brothers, which was viewed as a form of deferred compensation, the layoff provision here cannot be so construed, and cannot be said to create a right that vested or accrued during the term of the Agreement or a contractual obligation that carries over after expiration.

The order termined primarily with reference to “other factors such as aptitude and ability.” Only where all such factors were equal was the employer required to look to seniority. Here, any arbitration proceeding would of necessity focus upon whether aptitude and ability — and any unenumerated “other factors” — were equal long after the Agreement had expired, as of the date of the decision to lay off employees and in light of Litton’s decision to close down its coldtype printing operation.

The important ability do not remain constant, but change over time. They cannot be said to vest or accrue or be understood as a form of deferred compensation. Specific aptitudes and abilities can either improve or atrophy. And the importance of any particular skill in this equation varies with the requirements of the employer’s business at any given time. Aptitude and ability cannot be measured on some universal scale, but only by matching an employee to the requirements of an employer's business at that time. We cannot infer an intent on the part of the contracting parties to freeze any particular order of layoff or vest any contractual right as of the Agreement’s expiration.

v

For the reasons stated, we reverse the judgment of the Court of Appeals to the extent that the Court of Appeals refused to enforce the Board’s order in its entirety and remanded the cause for further proceedings.

It is so ordered.

Justice Marshall,

with whom Justice Blackmun and Justice Scalia join, dissenting.

Although I agree with Justice Stevens’ dissent, post, I write separately to emphasize the majority’s mischaracteri-zation of our decision in Nolde Bros., Inc. v. Bakery Workers, 430 U. S. 243 (1977). Nolde states a broad, rebuttable presumption of arbitrability which applies to all post-termination disputes arising under the expired agreement; it leaves the merits of the underlying dispute to be determined by the arbitrator. Today the majority turns Nolde on its head, announcing a rule that requires courts to reach the merits of the underlying posttermination dispute in order to determine whether it should be submitted to arbitration. This result is not only unfaithful to precedent but also it is inconsistent with sound labor-law policy.

hH

The dispute in Nolde concerned whether employees terminated after the expiration of a collective-bargaining agreement were entitled to severance pay under a severance-pay clause of the expired agreement. See id., at 248-249. The Court stated that the severance-pay dispute “hinge[d] on the interpretation [of] the contract clause providing for severance pay” but that “the merits of the underlying claim” were not implicated “in determining the arbitrability of the dispute.” Id., at 249. To determine whether the dispute was arbitrable, the Court looked solely to the expired agreement’s arbitration clause. It found the severance-pay dispute arbitrable because “[t]he parties agreed to resolve all disputes by resort to the mandatory grievance-arbitration machinery” and “nothing in the arbitration clause ... expressly exelude[d] from its operation a dispute which arises under the contract, but which is based on events that occur after its termination.” Id., at 252-253. Thus, under Nolde, the key questions for determining arbitrability are whether (1) the dispute is “based on . . . differing perceptions of a provision of the expired collective-bargaining agreement” or otherwise “arises under that contract,” id., at 249 (emphasis omitted), and, if so, (2) whether the “presumptions favoring” arbitrability have been “negated expressly or by clear implication,” id., at 255.

The majority grossly by transforming the first requirement that posttermination disputes “arise under” the expired contract. The Nolde Court defined “arises under” by reference to the allegations in the grievance. In other words, a dispute “arises under” the agreement where “the resolution of [the Union’s] claim hinges on the interpretation ultimately given the contract.” Id., at 249.

By contrast, the majority a grievance can be said to “arise under” the agreement only where the court satisfies itself (1) that the challenged action “infringes a right that accrued or vested under the agreement,” or (2) that “under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement.” Ante, at 206. Because they involve inquiry into the substantive effect of the terms of the agreement, these determinations require passing upon the merits of the underlying dispute. Yet the Nolde Court expressly stated that “in determining the arbitrability of the dispute, the merits of the underlying claim . . . are not before us.” 430 U. S., at 249.

Since the proper question under Nolde is whether the dispute in this case “arises under” the agreement in the sense that it is “based on . . . differing perceptions of a provision of the expired collective-bargaining agreement,” ibid., I have no difficulty concluding that this test is met here. The Union’s grievance “claim[ed] a violation of the Agreement,” ante, at 194, by petitioner’s layoffs. And, as even the majority concedes, “[t]he Agreement’s unlimited arbitration clause” encompasses any dispute that “arises under the contract here in question.” Ante, at 205. Thus, the dispute is arbitrable because the “presumptions favoring” arbitrability have not been “negated expressly or by clear implication.” 430 U. S., at 255.

In fashioning its more rigorous standard for arbitrability, the majority erroneously suggests that if Nolde rendered ar-bitrable all postexpiration disputes about an expired agreement’s substantive provisions, it would have the effect of extending the life of the entire contract beyond the date of expiration. See ante, at 206. The defect in this view is that it equates asking an arbitrator to determine whether a particular contractual provision creates rights that survive expiration with a decision that the provision does create such postexpiration rights. The majority evidently fears that arbitrators cannot be trusted to decide the issue correctly. Yet arbitrators typically have more expertise than courts in construing collective-bargaining agreements, and our arbitration jurisprudence makes clear that courts must rely on arbitral judgments where the parties have agreed to do so. Thus in Nolde, we carefully avoided expressing any view as to whether the substantive provisions of the expired agreement had any posttermination effect precisely because the parties had expressed their preference for an arbitral, rather than a judicial interpretation. See Nolde, supra, at 249, 253.

Consequently, the issue here, as it was in Nolde, is not whether a substantive provision of the expired collective-bargaining agreement (in this case the provision covering layoffs) remains enforceable but whether the expired agreement reflects the parties’ intent to arbitrate the Union’s contention that this provision remains enforceable. The majority itself acknowledges a general rule of contract construction by which arbitration or other dispute resolution provisions may survive the termination of a contract. Ante, at 208, and n. 3. That is all Nolde stands for.

In addition to being without legal ity’s displacement of Nolde’s simple, interpretive presumption with a case-by-case test is unsound from a policy standpoint. Ironically, whereas parties that have agreed to a broad arbitration clause have expressed a preference for “a prompt and inexpensive resolution of their disputes by an expert tribunal,” Nolde, supra, at 254, the majority invites protracted litigation about what rights may “accrue” or “vest” under the contract — litigation aimed solely at determining whether the dispute will be resolved by arbitration. More fundamentally, because the arbitrator is better equipped than are judges to make the often difficult determination of the post-termination effect of an expired contract’s substantive provisions, the majority’s assignment of this task to courts increases the likelihood of error. See id., at 253 (“ ‘The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed,’ ” quoting Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582 (1960)).

II

The majority’s resolution of the merits of the contract dispute here reinforces my conviction that arbitrators should be the preferred resolvers of such questions. The Union based its grievance on the following provision of the contract: “[I]n case of layoffs, lengths of continuous service will be the determining factor if other things such as aptitude and ability are equal.” App. 30. The Union’s contention that postex-piration layoffs violated this provision rests on the assertion that this contractual provision created rights that survive termination of the contract. The majority rejects this assertion on the ground that “factors such as aptitude and ability do not remain constant, but change over time” and thus “cannot be said to vest or accrue.” Ante, at 210. This conclusion strikes me as utterly implausible.

As the majority appears to concede, ante, at 209-210, and as the Board has held, an unconditional seniority provision can confer a seniority right that is “capable of accruing or vesting to some degree during the life of the contract.” United Chrome Products, Inc., 288 N. L. R. B. 1176, 1177 (1988). Obviously, an employee’s relative seniority, much like his relative “aptitude and ability,” will “change over time.” That is, a given member of a bargaining unit who is, for example, 12th in seniority when his collective-bargaining agreement expires may be 5th in seniority at a particular time thereafter, depending upon the number of more senior employees who have departed from the workforce. Or an employee could lose his seniority altogether where specified conditions for such loss have been met. See, e. g., n. 3, infra. The fact that, despite the volatility in individual rank, the seniority guarantee might nevertheless vest under the contract means that what vests is not the employee’s seniority rank or his right to job security but rather the right to have the standard of seniority applied to layoffs.

In my view, a provision granting only may vest in the same way. (Here, the provision guaranteeing seniority is “qualified” by the requirement that the employee claiming seniority possess “aptitude and ability” that is equal to that of less senior employees who seek to avoid being laid off.) As with an employee’s seniority rank, a given worker’s “aptitude and ability” relative to other employees may change over time, yet the right to have layoffs made according to the standard of qualified seniority could vest under the contract. Under this view, a laid off employee would have the opportunity to prove to the arbitrator that he should not have been laid off under the terms of the contract because other factors such as aptitude and ability were equal at the time he was laid off.

Indeed, I think this is the more parties’ intent in this case, particularly given related contract provisions involving loss of seniority. As the Board has previously held, a contract’s

“failure to specify expiration as one of the ways in which seniority rights could be lost indicates that the parties intended that seniority rights remain enforceable after contract termination. Therefore, the grievance over [the employer’s] refusal to recall employees by plantwide seniority . . . involves a right worked for and accumulated during the term of the contract and intended by the parties to survive contract expiration.” Uppco, Inc., 288 N. L. R. B. 937, 940 (1988).

In the present case, the expired agreement enumerates six specific ways an employee could lose seniority, and these do not include termination of the agreement. See App. 31. Thus, the qualified seniority at issue in this case would seem as likely to accrue as did the unconditional seniority in Uppco.

In any event, the conclusion that the contracting parties in this case did not intend qualified seniority rights to vest is sufficiently implausible as to raise serious questions about the majority’s assignment of the task of deciding this interpretive issue to itself. Had the majority left this issue to the arbitrator to decide, as Nolde requires, the arbitrator would have had the benefit of an evidentiary hearing on the contractual question and the opportunity to explore petitioner’s actual postexpiration seniority practices. The contractual text, alone, may not be the only relevant information in determining the parties’ intent. Because arbitrators are better equipped to decide such issues and are more familiar with the “‘common law of the shop,’” Nolde, supra, at 253, quoting Warrior & Gulf Nav. Co., supra, at 582, I would have much more confidence in the majority’s construction of the contract were that result reached by an arbitrator. In sum, the majority’s problematic reasoning regarding the substance of the layoff grievance only underscores the soundness of the Nolde presumption of arbitrability which the majority today displaces. Accordingly, I dissent.

Justice Stevens,

with whom Justice Blackmun Justice Scalia join, dissenting.

As the Court today recognizes, an employer’s obligation to arbitrate postcontract termination grievances may arise by operation of labor law or by operation of the expired collective-bargaining agreement. I think the Court is correct in deferring to the National Labor Relations Board’s line of cases and holding that a statutory duty to arbitrate grievances does not automatically continue after contract termination by operation of labor law, see ante, at 198-203. I also agree with the Court’s recognition that notwithstanding the absence of an employer’s statutory duty to arbitrate postter-mination grievances, a contractual duty to arbitrate such grievances may nevertheless exist, see ante, at 203-208. I part company with the Court, however, at Part IV-C of its opinion, where it applies its analysis to the case at hand. Because I am persuaded that the issue whether the posttermi-nation grievances in this case “arise under” the expired agreement is ultimately an issue of contract interpretation, I think that the Court errs in reaching the merits of this issue rather than submitting it to an arbitrator in the first instance, pursuant to the broad agreement of the parties to submit for arbitration any dispute regarding contract construction.

In Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243 (1977), a union brought suit against an employer to compel arbitration of the employer’s refusal to give severance pay under an expired collective-bargaining agreement to employees displaced by a plant closing. The expired agreement provided that employees who had worked for the employer for at least three years were entitled to severance pay if permanently displaced from their jobs. The union claimed that the right to such severance pay had “accrued” or “vested” during the life of the contract. The employer disavowed any obligation to arbitrate, arguing that the contract containing its commitment had terminated and the event giving rise to the dispute — the displacement of employees during the plant closing — occurred after the contract had expired.

We ruled in favor of the union in Nolde Brothers. Integral to our- decision was the conclusion that whether or not the right to severance pay had accrued during the contract, and thus whether or not the employer’s refusal to offer severance pay was an arbitrable grievance after the contract had expired, was itself a question of contract interpretation. “There can be no doubt that a dispute over the meaning of the severance-pay clause during the life of the agreement would have been subject to the mandatory grievance-arbitration procedures of the contract. Indeed, since the parties contracted to submit ‘all grievances’ to arbitration, our determination that the Union was ‘making a claim which on its face is governed by the contract’ would end the matter had the contract not been terminated prior to the closing of the plant.” Id., at 249-250 (citation omitted).

Like the expired agreement between the union and Nolde Brothers to arbitrate “all grievances,” the terminated agreement between Litton and the Union in this case broadly mandates arbitration of “ ‘[differences that may arise between the parties hereto regarding this Agreement and any alleged violations of the Agreement, [and] the construction to be placed on any clause or clauses of the Agreement.’” Ante, at 194. Because the Union here alleged that the seniority clause of the expired agreement was on its face violated by the posttermination layoffs, determining whether the union’s grievances arise under the contract requires construction of the seniority provision of the contract and determination of whether this provision applies to posttermination events. As the Court itself notes: “[T]he Board’s decision not to order arbitration of the layoff grievances rests upon its interpretation of the Agreement.” Ante, at 202 (emphasis added).

In my opinion, fact continues to provide employees with any rights after the contract’s expiration date is a separate issue concerning the merits of the dispute, not its arbitrability. Whatever the merits of the Union’s contention that the seniority-rights provision survives the contract’s termination date, I think that the merits should be resolved by the arbitrator, pursuant to the parties’ broad contractual commitment to arbitrate all disputes concerning construction of the agreement, rather than by this Court.

I respectfully dissent.

       The conflict between the Ninth Circuit’s reasoning in Local Joint Executive Bd. of Las Vegas Culinary Workers Union, Local 226 v. Royal Center, Inc., 796 F. 2d 1169 (1986), and the Board’s approach in Indiana & Michigan Electric Co., 284 N. L. R. B. 53 (1987), reflects a wider split of authority. The Third and Fifth Circuits follow an approach similar to that of the Ninth Circuit. See Federated Metals Corp. v. United Steelworkers

        of America, 648 F. 2d 856, 861 (CA3), cert. denied, 454 U. S. 1031 (1981); Seafarers Int’l Union of North America v. National Marine Servs., Inc., 820 F. 2d 148, 152-154 (CA5), cert. denied, 484 U. S. 953 (1987). The Eighth Circuit, Tenth Circuit, and the Michigan Supreme Court follow the Board’s approach and limit the presumption of postexpiration arbitrability to rights that accrued or vested under the agreement, or events that took place prior to expiration of the agreement. See Chauffeurs, Teamsters and Helpers, Local Union 238 v. C. R. S. T. Inc., 795 F. 2d 1400, 1404 (CA8 1986) (en banc); United Food & Commercial Workers Int’l Union, AFL-CIO, Local 7 v. Gold Star Sausage Co., 897 F. 2d 1022, 1025-1026 (CA10 1990); County of Ottawa v. Jaklinski, 423 Mich. 1, 377 N. W. 2d 668 (1985) (discussing Nolde in context of Michigan law applicable to public employers). The Seventh Circuit, finally, restricts application of Nolde Brothel’s to a limited period following expiration of a bargaining agreement. See Local 703, Int’l Brotherhood of Teamsters v. Kennicott Bros. Co., 771 F. 2d 300 (1985).

       See, e. g., NLRB v. New England Newspapers, Inc., 856 F. 2d 409, 410 (CA1 1988) (agreement would continue in effect until a new agreement was reached); Montgomery Mailers’ Union No. 127 v. The Advertiser Co., 827 F. 2d 709, 712, n. 5 (CA11 1987) (agreement to continue in effect “for a reasonable time for negotiation of a new agreement”); Teamsters Local Union 688 v. John J. Meier Co., 718 F. 2d 286, 287. (CA8 1983) (“[A]ll terms and provisions of the expired agreement shall continue in effect until a new agreement is adopted or negotiations are terminated”).

       See, e. g., West Virginia ex rel. Ranger Fuel Corp. v. Lilly, 165 W. Va. 98, 100-101, 267 S. E. 2d 435, 437-438 (W. Va. 1980) (duty to arbitrate survives termination of lease); Warren Brothers Co. v. Cardi Corp., 471 F. 2d 1304 (CA1 1973) (arbitration clause survives completion of work under construction contract); Mendez v. Trustees of Boston University, 362 Mass. 353, 356, 285 N. E. 2d 446, 448 (1972) (termination of employment contract “does not necessarily terminate a provision for arbitration or other agreed procedure for the resolution of disputes”); The Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 10-11, 110 A. 2d 464, 469-470 (1954) (arbitration clause in building contract not affected by a party’s repudiation or total breach of contract).

       Although our decision that the dispute does not arise under the Agreement does, of necessity, determine that as of August 1980 the employees lacked any vested contractual right to a particular order of layoff, the Union would remain able to argue that the failure to lay off in inverse order of seniority if “other things such as aptitude and ability” were equal amounted to an unfair labor practice, as a unilateral change of a term or condition of employment. We do not decide whether, in fact, the layoffs were out of order.

       I agree with the majority that the National Labor Relations Board’s (Board) determination as to arbitrability under the contract is not entitled to deference. See ante, at 202-203.

       The majority “presume[s] as a matter of contract interpretation that the parties did not intend a pivotal dispute resolution provision to terminate for all purposes upon the expiration of the agreement.” Ante, at 208. But the arbitration clause of the expired collective-bargaining agreement does not distinguish among types of disputes that the parties would and would not submit to arbitration. As in Nolde, the parties agreed to submit all disputes arising under the agreement to arbitration. By looking to the terms of the agreement’s layoff provision to draw a conclusion about whether the parties intended rights under that provision to survive termination, the majority is deciding the merits of the dispute rather than the issue of its arbitrability. Notably, the layoff provisions do not contain any language suggesting an intent to preclude posttermination grievances over layoffs from-arbitration. See App. 30-31.

       Section 12 of the expired agreement, entitled “Notice of Layoutt” [sic], contains six subsections addressing, inter alia, issues of seniority, layoffs, and recalls. Subsection F, which addresses the recalling of laid off workers, enumerates the six ways in which “[a]n employee shall lose his seniority.” App. 31. The “seniority” referred to in subsection F reasonably could be construed as the same seniority that is implied in subsection A, concerning layoffs, and that is expressly identified in subsection E, which requires the employer to “supply the Union with an updated seniority list semi-annually,” id. See id., at 30-31.

       Although I believe the parties have a contractual duty to arbitrate in this case, I agree with the majority’s conclusion that the Board articulated rational grounds for not imposing a statutory duty under the National Labor Relations Act, 29 U. S. C. § 151 et seq., to arbitrate grievances arising after the termination of a collective-bargaining agreement. See ante, at 200-201. In Indiana and Michigan Electric Co., 284 N. L. R. B. 53 (1987), the Board noted that “an agreement to arbitrate is a product of the parties’ mutual consent to relinquish economic weapons, such as strikes or lockouts” and therefore the contractual obligation to arbitrate could be distinguished from other “terms and conditions of employment routinely perpetuated [after termination of a collective-bargaining agreement] by the [statutory] constraints of [the unilateral change doctrine].” Id., at 58. Under § 13 of the Act, 29 U. S. C. § 163, the Act may not be construed to interfere with a union’s right to strike. Therefore, the Board rationally concluded that employers should not, as a matter of statutory policy, be compelled to arbitrate and thus forbear from using their economic weapons, when no concomitant statutory obligation can be imposed on a union.