Glover v. St. Louis-San Francisco Railway Company/Concurrence Harlan

Mr. Justice HARLAN, concurring.

I join in the Court's opinion with one addition and one reservation.

I believe that Richardson v. Texas & N.O.R. Co., 242 F.2d 230 (1957), decided by the Fifth Circuit some years before its decision in the present case, also supports today's holding that the federal courts may grant railroad employees ancillary relief against an employer who aids and abets their union in breaching its duty of fair representation. A contrary result would bifurcate, and needlessly proliferate, litigation.

I think it clear that footnote 4 of Conley v. Gibson, 355 U.S. 41, 44, 78 S.Ct. 99, 2 L.Ed.2d 80 (1 57), did not-as some of the language in today's opinion, ante, at 328-329, might otherwise imply-address itself to the question now decided, which is one of first impression in this Court. Conley was a suit against the union only. A careful reading of Hayes v. Union Pacific R. Co., 9 Cir., 184 F.2d 337 (1950); the District Court's opinion in Conley, D.C., 138 F.Supp. 60 (1955), which relied on Hayes; and this Court's opinion in Conley makes it readily apparent that our disapproval of Hayes had nothing to do with the question of jurisdiction over an employer in a fair representation action.