(concurring).
I concur in reversal and remand for further proceedings against both defendants. I have reached conclusions which differ in some respects from those set forth in Chief Judge Swygert’s majority opinion. They are as follows:
(1) Plaintiffs’ right to proceed against Harvester under Title VII. Plaintiffs allege that Harvester, as an employer, is engaging in what Congress declared an unlawful employment practice. Congress authorized an action for the prevention and redress of such practice, but did not suggest that all parties responsible for the practice or all parties whose interests might be affected by its termination must be joined. In my opinion, Rule 19 (b) F.R.C.P. does not authorize dismissal of an otherwise proper Title VII action against an employer on account of the absence of the union and other employees. Such use of Rule 19 would frustrate the intent of Congress in this type of case.
(2) Plaintiffs’ Title VII action against the union. Plaintiffs allege that the union was a party to Harvester’s collective bargaining agreement, containing allegedly discriminatory seniority lists, and that (after the charges were filed with EEOC) the union agreed to a modification, allegedly for the purpose of permitting a discriminatory reinstatement. Sec. 2000e-2(e) (3) declares it an unlawful employment practice for a union “to cause or attempt to cause an employer to discriminate against an individual in violation of this section.” The complaint does not use statutory language, but no argument has been made that it failed to allege an unlawful employment practice on the part of the union.
Assuming that the allegation is sufficient, it appears from the complaint that the union was to some degree responsible (in concert with the employer) for *492the practice of discrimination under attack, acted to further the practice after a charge had been filed against the employer, and had actual notice of the commission’s investigation of the charge. Under all the particular circumstances of this case, I conclude that a strict reading of the statutory authorization of an action “against the respondent named in the charge” is unwarranted, and that the plaintiffs could properly bring action against both the employer and the union.
EEOC filed an amicus brief in which it argued that in this case plaintiffs could properly have joined the union as a defendant without having named it in the administrative charge. EEOC also suggested a procedure by which the defect, if any, could be cured. Under it, the district court would have stayed the action, pending the filing of a charge by plaintiffs against the union. EEOC could then process the charge so as to allow joinder of the union. Such an approach has been employed in other cases, e. g. Norman v. Missouri Pacific Railroad (8th Cir. 1969), 414 F.2d 73; Local U. No. 329, I.L.A. v. South Atlantic & Gulf Coast Dist. (S.D.Tex. 1968), 295 F.Supp. 599. It seems clear that these steps would obviate any jurisdictional question, but under the facts peculiar to this record, it would seem an unnecessary exercise.
(3) Plaintiffs’ possible action under § 1981. I agree that, given the Supreme Court’s Jones v. Mayer reading of § 1982 with respect to racial discrimination in the sale of property, there is no persuasive reason for reading § 1981 more narrowly with respect to racial discrimination in employment. There remains the difficult question of whether and to what extent the enactment of Title VII restricted reliance upon § 1981. It is unnecessary to resolve that question at this stage if plaintiffs are permitted to proceed against both defendants under Title VII. Perhaps the trial will develop facts which will make resolution important in this case, and I think it wiser not to attempt an answer until that point.