National Labor Relations Board v. Industrial Union of Marine and Shipbuilding Workers of America/Concurrence Harlan

Mr. Justice HARLAN, concurring.

I am persuaded by the legislative history, summarized in part by the Court, that the proviso to § 101(a)(4) of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411(a)(4), was intended simply to permit a court or agency to require a union member to exhaust internal union remedies of less than four months' duration before invoking outside assistance. See generally Detroy v. American Guild of Variety Artists, 2 Cir., 286 F.2d 75, 78. I cannot, however, agree that a union may punish a member for his invocation of his remedies before a court or agency 'where the complaint or grievance * *  * concern(s) an internal union matter,' and thus does not touch any 'part of the public domain covered by the Act *  *  * .' Ante, at 428. Assuming arguendo that there are member-union grievances untouched by the various federal labor statutes, this dichotomy has, it seems to me, precisely the disadvantage that the Court has found in the Third Circuit's construction of the proviso: it compels a member to gamble his union membership, and often his employment, on the accuracy of his understanding of the federal labor laws.

Finally, it is appropriate to emphasize that courts and agencies will frustrate an important purpose of the 1959 legislation if they do not, in fact, regularly compel union members 'to exhaust reasonable hearing procedures' within the union organization. Responsible union self-government demands, among other prerequisites, a fair opportunity to function. See Detroy v. American Guild of Variety Artists, supra, at 79.

With these modifications, I concur in the opinion and judgment of the Court.