Holder, a member of respondent unions, submitted charges to
Local 22 that its president had violated the International's
constitution. The local decided in its president's favor. Holder,
without pursuing the intra-union appeals procedure contained in § 5
of the International's constitution, filed with the NLRB an unfair
labor practice complaint claiming violation of § 8(b)(1)(A) of the
National Labor Relations Act based on the same alleged violations
of the president and charging that Local 22 had caused his employer
to discriminate against him because he had engaged in "protected
activity" with respect to his employment. While Holder's complaint
was pending before the NLRB, Local 22 brought intra-union charges
that Holder had violated § 5 of the International's constitution by
filing the charge with the NLRB before exhausting his internal
remedies, held a hearing, found Holder guilty, and expelled him
from respondent unions. Holder then filed a second charge with the
NLRB (the basis of this case), which found that respondent unions
had violated § 8(b)(1)(A) by expelling Holder for filing the charge
with the NLRB without having first exhausted intra-union
procedures. The NLRB issued a remedial order. The Court of Appeals
refused to enforce that order, relying on § 101(a)(4) of the
Labor-Management Reporting and Disclosure Act of 1959, which, while
prohibiting a union from limiting a member's right to resort to a
tribunal, provides that a member "may be required to exhaust
reasonable hearing procedures" before doing so, "not to exceed a
four-month lapse of time."
Held:
1. Holder's charge that he was discriminated against because he
had engaged "in certain protected activity" constituted a
sufficient allegation of impairment of § 7 rights. Pp.
391 U. S.
421-422.
2. Where a union member's complaint of grievance does not
concern an internal union matter, but, as in this case, touches
a
Page 391 U. S. 419
part of the public domain covered by the National Labor
Relations Act, failure to resort to any intra-union grievance
procedure before filing an unfair labor practice complaint with the
NLRB is not ground for expulsion from the union. Pp.
391 U. S.
422-425,
391 U. S.
428.
3. Though § 101(a)(4) of the Labor-Management Reporting and
Disclosure Act authorizes union hearing procedures for processing
members' grievances, provided those procedures do not consume more
than four months, a court or agency may consider whether a
particular procedure is "reasonable" and entertain the complaint
even though those procedures have not been "exhausted." Pp.
391 U. S.
425-428.
379 F.2d 702, reversed.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
One Holder, a member of respondent unions, filed with the
National Labor Relations Board an unfair labor practice charge,
alleging that Local 22 had violated § 8(b)(1)(A) of the National
Labor Relations Act, [
Footnote
1] 61
Page 391 U. S. 420
Stat. 141, 29 U.S.C. § 158(b)(1)(A), by causing his employer to
discriminate against him because he had engaged in protected
activity with respect to his employment. [
Footnote 2] The filing of this charge followed an
accusation by Holder to Local 22 that its president had violated
the constitution of the International. The local decided in favor
of its president, but Holder did not pursue the intra-union appeals
procedure that was available to him, and filed the unfair labor
practice charge instead, based on the same alleged violations by
the president.
Section 5 of Article V of the constitution of the International
Union, which was binding on Local 22, contained the following
provision relative to grievances of union members:
"Every member . . . considering himself . . . aggrieved by any
action of this Union, the [General
Page 391 U. S. 421
Executive Board], a National Officer, a Local or other
subdivision of this Union shall exhaust all remedies and appeals
within the Union, provided by this Constitution, before he shall
resort to any court or other tribunal outside of the Union."
While Holder's charge was pending before the Board, Local 22
lodged a complaint in internal union proceedings against Holder
alleging he had violated § 5 of Article V of the International's
constitution by filing his charge with the Board before he had
exhausted his internal remedies. After a hearing before Local 22,
Holder was found guilty and expelled from both respondent unions.
He then appealed to the General Executive Board of the
International, which affirmed the local's action on October 7,
1964.
On October 28, 1964, Holder filed a second charge with the
Board, claiming his expulsion for filing the first charge was
unlawful. That charge is the basis of the instant case.
A complaint issued, and the Board found that the respondent
unions had violated § 8(b)(1)(A) of the Act by expelling Holder for
filing a charge with the Board without first having exhausted the
intra-union procedures. 159 N.L.R.B. 1065. It issued a remedial
order, which the Court of Appeals refused to enforce. 379 F.2d 702.
The case is here on writ of certiorari. 389 U.S. 1034.
The important question is whether, consistent with the
applicable federal statutes, a union may penalize one of its
members for seeking the aid of the Board without exhausting all
internal union remedies. There is a threshold question, however,
concerning the adequacy of Holder's first or original charge to the
Board against respondents. Holder charged discrimination practiced
against him because, to use the words of the Regional Director as
he paraphrased the charge in the complaint,
Page 391 U. S. 422
Holder had engaged "in certain protected activity" of an
unspecified nature "with respect to his employment." It is pointed
out that § 8(b)(1)(A) protects only "the exercise of rights
guaranteed by section 7"; [
Footnote
3] and that § 7 "says nothing about any right to file charges
with the Board." 379 F.2d at 706. That, however, is not the issue.
The charge by Holder that he was discriminated against because he
had engaged "in certain protected activity" was a sufficient way to
allege an impairment of § 7 rights. "The charge is not proof. It
merely sets in motion the machinery of an inquiry."
NLRB v.
Indiana & Michigan Electric Co., 318 U. S.
9,
318 U. S. 18.
Moreover, no issue was raised before the Board concerning the
nature of the "protected activity." The answer of respondents,
insofar as the original charge is concerned, said only that the
charge made by Holder to the Board was based upon precisely the
same facts as those on which his internal union charges against the
president of the Local had been based. We must, therefore, assume
that the initial charge was one within the ambit of § 7, and so
plainly within it that no party undertook to question it.
The main issue in the case is whether Holder could be expelled
for filing the charge with the Board without first having exhausted
"all remedies and appeals within the Union" [
Footnote 4] as provided in § 5 of Article V of the
constitution, already quoted.
Page 391 U. S. 423
Section 8(b)(1)(A) in its proviso [
Footnote 5] preserves to a union "the right of a labor
organization to prescribe its own rules with respect to the
acquisition or retention of membership therein."
The Court of Appeals concluded that, while this proviso would
not permit a union to expel a member because he filed an unfair
labor practice charge against the union, it permits a rule which
gives the union "a fair opportunity to correct its own wrong before
the injured member should have recourse to the Board." 379 F.2d at
707.
We held in
NLRB v. Allis-Chalmers Mfg. Co.,
388 U. S. 175,
that § 8(b)(1)(A) does not prevent a union from imposing fines on
members who cross a picket line created to implement an authorized
strike. The strike, we said, "is the ultimate weapon in labor's
arsenal for achieving agreement upon its terms" and the power to
fine or expel a strike-breaker "
is essential if the union is to
be an effective bargaining agent.'" Id. at 388 U. S.
181.
Page 391 U. S. 424
Thus, § 8(b) (1)(A) assures a union freedom of self-regulation
where its legitimate internal affairs are concerned. But where a
union rule penalizes a member for filing an unfair labor practice
charge with the Board, other considerations of public policy come
into play.
Section 10(b) of the Act, 61 Stat. 146, 29 U.S.C. § 160(b),
forbids issuance of a complaint based on conduct occurring more
than six months prior to filing of the charge -- a provision
promoting promptness. A proceeding by the Board is not to
adjudicate private rights, but to effectuate a public policy. The
Board cannot initiate its own proceedings; implementation of the
Act is dependent "upon the initiative of individual persons."
Nash v. Florida Industrial Comm'n, 389 U.
S. 235,
389 U. S. 238.
The policy of keeping people "completely free from coercion,"
ibid., against making complaints to the Board is therefore
important in the functioning of the Act as an organic whole. A
restriction such as we find in § 5 of Article V of the
International's constitution is contrary to that policy, as it is
applied here. A healthy interplay of the forces governed and
protected by the Act means that there should be as great a freedom
to ask the Board for relief as there is to petition any other
department of government for a redress of grievances. [
Footnote 6] Any coercion used to
discourage, retard, or defeat that access is beyond the legitimate
interests of a labor organization. That was the philosophy of the
Board in the
Skura case,
Local 18, International Union
of Operating Engineers, 148 N.L.R.B. 679, and we agree that
the overriding public interest makes unimpeded access to the Board
the only healthy alternative, except and unless plainly internal
affairs of the union are involved.
Page 391 U. S. 425
In the present case, a whole complex of public policy issues was
raised by Holder's original charge. It implicated not only the
union, but the employer. The employer might also have been made a
party and comprehensive and coordinated remedies provided. Those
issues cannot be fully explored in an internal union proceeding.
There cannot be any justification to make the public processes wait
until the union member exhausts internal procedures plainly
inadequate to deal with all phases of the complex problem
concerning employer, union, and employee member. If the member
becomes exhausted, instead of the remedies, the issues of public
policy are never reached, and an airing of the grievance never had.
The Court of Appeals recognized that this might be the consequence,
and said that resort to an intra-union remedy would not be required
if it "would impose unreasonable delay or hardship upon the
complainant." 379 F.2d at 707.
The difficulty is that a member would have to guess what a court
ultimately would hold. If he guessed wrong and filed the charge
with the Board without exhausting internal union procedures, he
would have no recourse against the discipline of the union. That
risk alone is likely to chill the exercise of a member's right to a
Board remedy and induce him to forgo his grievance or pursue a
futile union procedure. That is the judgment of the Board, and we
think it comports with the policy of the Act. That is to say, the
proviso in § 8(b)(1)(A) that unions may design their own rules
respecting "the acquisition or retention of membership" is not so
broad as to give the union power to penalize a member who invokes
the protection of the Act for a matter that is in the public domain
and beyond the internal affairs of the union.
The Court of Appeals found support for its contrary position in
§ 101(a)(4) of the Labor-Management Reporting
Page 391 U. S. 426
and Disclosure Act of 1959. [
Footnote 7] 7 Stat. 522, 29 U.S.C. § 411(a)(4). While that
provision prohibits a union from limiting the right of a member to
institute an action in any court or in a proceeding before any
administrative agency, it provides that a member "may be required
to exhaust reasonable hearing procedures" "not to exceed a
four-month lapse of time."
We conclude that "may be required" is not a grant of authority
to unions more firmly to police their members, but a statement of
policy that the public tribunals whose aid is invoked may in their
discretion stay their hands for four months while the aggrieved
person seeks relief within the union. We read it, in other words,
as installing in this labor field a regime comparable to that which
prevails in other areas of law before the federal courts, which
often stay their hands while a litigant seeks administrative relief
before the appropriate agency. [
Footnote 8]
Page 391 U. S. 427
The legislative history is not very illuminating. Some members
of the House who spoke indicated that there was room for judicial
discretion whether to remit the member to available internal union
remedies. [
Footnote 9] In the
Senate, the fear was expressed that the new section would give
unions power to punish their members for filing charges with the
Board prior to exhaustion of their internal remedies. [
Footnote 10] In the Senate, the
continuance of union grievance procedures under the new section was
emphasized. [
Footnote 11] It
was indeed expressly stated by Senator John F. Kennedy reporting
from the Conference Committee: [
Footnote 12]
"The 4-month limitation in the House bill also relates to
restrictions imposed by unions, rather than the rules of judicial
administration or the action of Government agencies."
Yet it plainly appears from those speaking for the Conference
Report that a member was to be permitted to complain to the Board
even before the end of the four-month period. Congressman Griffin
reported: [
Footnote 13]
"[T]he proviso was not intended to limit in any way the right of
a union member under the Labor-Management Relations Act of 1947, as
amended, to file unfair labor practice charges against a union, or
the right of the NLRB to entertain such charges, even though a
4-month period may not have elapsed."
And, on the Senate side, Senator Kennedy said that the proviso
was not intended
"to invalidate the considerable
Page 391 U. S. 428
body of State and Federal court decisions of many years standing
which require, or do not require, the exhaustion of internal
remedies prior to court intervention
depending upon the
reasonableness of such requirements in terms of the facts and
circumstances of a particular case."
(Emphasis added.) Nor, he said, was it intended to prohibit "the
National Labor Relations Board . . . from entertaining charges by a
member against a labor organization even though 4 months has not
elapsed." [
Footnote 14]
We conclude that unions were authorized to have hearing
procedures for processing grievances of members, provided those
procedures did not consume more than four months of time; but that
a court or agency might consider whether a particular procedure was
"reasonable" and entertain the complaint even though those
procedures had not been "exhausted." We also conclude, for reasons
stated earlier in this opinion, that, where the complaint or
grievance does not concern an internal union matter, but touches a
part of the public domain covered by the Act, failure to resort to
any intra-union grievance procedure is not ground for expulsion
from a union. We hold that the Board properly entertained the
complaint of Holder and that its order should be enforced.
Reversed.
MR. JUSTICE STEWART dissents. He would affirm the judgment,
agreeing substantially with the opinion of the Court of Appeals for
the Third Circuit. 379 F.2d 702.
[
Footnote 1]
Section 8(b) provides in part:
"It shall be an unfair labor practice for a labor organization
or its agents --"
"(1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7:
Provided, That this
paragraph shall not impair the right of a labor organization to
prescribe its own rules with respect to the acquisition or
retention of membership therein. . . ."
Section 7, 61 Stat. 140, 29 U.S.C. § 157, contains the following
guarantee of rights:
"Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in section 8(a)(3)."
[
Footnote 2]
This charge, filed with the Board February 28, 1964, was
directed solely against respondent International Union, and alleged
that:
"On or about October 8, 196[3], the above named labor
organization caused the United States Lines [employer] to
discriminate against Edwin D. Holder because he engaged in
concerted activities with respect to the conditions of his
employment."
"By these and other acts, the above named labor organization has
interfered with, restrained and coerced, and continues to interfere
with, restrain and coerce the Company's employees in the exercise
of rights guaranteed in Section 7 of the Act."
By letter of May 20, 1964, the Regional Director informed Holder
that this charge was dismissed.
[
Footnote 3]
N 1,
supra.
[
Footnote 4]
These remedies are provided for in § 3 of Article V of the
constitution:
"No Union member in good standing in any Local may be suspended
or expelled or otherwise disciplined or penalized without a fair
and open trial, of which reasonable notice shall be given the
accused member, before the Trial Board of the Local Union. . . .
The accused member or members or the accusers may appeal the
decision of the local Union's Executive Board to the regular
meeting of the General Membership of the Local Union next following
the meeting of the Executive Board at which the decision was
rendered, and, within thirty (30) days after the membership's
decision, may appeal to the General Executive Board. The General
Executive Board shall, after reasonable notice to the appellant of
the time and place of hearing, hold a fair and open hearing on such
appeal and, not later than 130 days after the first regular meeting
of the General Executive Board following receipt of the appeal at
the National Office, and, in any event, not later than the first
day of the National Convention, shall render its decision
affirming, overruling, or modifying either the findings of guilt or
innocence, or the penalty imposed. Both the accused and the accuser
shall have the right to file an appeal to the next National
Convention by sending such appeal to the National Office of this
Union by registered mail not later than thirty days after the
decision by the General Executive Board."
Although Holder did not take any internal appeal from the
local's original adverse decision on his charge to it against the
president, he did appeal his expulsion to the General Executive
Board of the International, which affirmed.
[
Footnote 5]
N 1,
supra.
[
Footnote 6]
See Cox, Internal Affairs of Labor Unions under the
Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 839 (1960); Summers,
Legal Limitations in Union Discipline, 64 Harv.L.Rev. 1049,
1067-1068 (1951); Summers, The Usefulness of Law in Achieving Union
Democracy, 48 Am.Econ.Rev. 44, 47 (May 1958).
[
Footnote 7]
Section 101(a)(4) provides:
"No labor organization shall limit the right of any member
thereof to institute an action in any court, or in a proceeding
before any administrative agency . . . or the right of any member
of a labor organization to appear as a witness in any judicial,
administrative, or legislative proceeding, or to petition any
legislature or to communicate with any legislator:
Provided, That any such member may be required to exhaust
reasonable hearing procedures (but not to exceed a four-month lapse
of time) within such organization, before instituting legal or
administrative proceedings. . . "
[
Footnote 8]
See Myers v. Bethlehem Shipbuilding Corp., 303 U. S.
41;
compare Railroad Comm'n v. Pullman Co.,
312 U. S. 496. The
requirement of exhaustion is a matter within the sound discretion
of the courts.
See, e.g., McCulloch v. Sociedad Nacional,
372 U. S. 10,
372 U. S. 16-17.
And see Leedom v. Kyne, 358 U. S. 184,
358 U. S.
188-189;
California Comm'n v. United States,
355 U. S. 534,
355 U. S.
539-540. Exhaustion is not required when the
administrative remedies are inadequate.
Greene v. United
States, 376 U. S. 149;
McNeese v. Board of Education, 373 U.
S. 668.
See generally 3 K. Davis,
Administrative Law Treatise § 20.07 (1958). When the complaint, as
in the instant case, raises a matter that is in the public domain
and beyond the internal affairs of the union, the union's internal
procedures are, as previously explained, plainly inadequate.
[
Footnote 9]
105 Cong.Rec. 15835 (McCormack);
id. at 15689-15690
(O'Hara);
id. at 15563 (Foley).
[
Footnote 10]
105 Cong.Rec. 10095 (Goldwater).
[
Footnote 11]
105 Cong.Rec. 17899 (John F. Kennedy).
[
Footnote 12]
105 Cong.Rec. 17899.
[
Footnote 13]
105 Cong.Rec. 18152.
[
Footnote 14]
105 Cong.Rec. 17899.
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,
Page 391 U. S. 429
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, 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
391 U. S. 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.
* It should be noted that many union constitutions have
elaborate provisions for internal appeals, and that these
provisions were often added or modified as a consequence of §
101(a)(4).
See Kroner, Title I of the LMRDA: Some Problems
of Legal Method and Mythology, 43 N.Y.U.L.Rev. 280, 302, n. 72.