concurring.
I join in the judgment of the Court and in all but part III of Judge Adams’ opinion. I *230write separately because I fear that the majority has established a novel and inadequately confined precedent that will, in a Vaca v. Sipes -type suit, enable a union defendant to assert the futility of exhausting its own internal remedies as a trigger for the running of the short (6 months) DelCostello statute of limitations and thereby unfairly trap unwary suitors. This concern is not academic; rather, it responds to a troublesome dilemma frequently faced by litigants in this circuit. The problem may be seen by exploring the following scenario, which mirrors the facts of this case.
Assume that an employee filed a suit under § 301 of the LMRA, 29 U.S.C. § 185 (1976), alleging a breach of the collective bargaining agreement by his employer and a breach of the duty of fair representation by his union, at a time when nominal procedures exist whereby the union might still activate (or reactivate) the employee’s grievance. Under existing caselaw, the union can argue, subject to the limitations set forth in Clayton v. Automobile Workers, 451 U.S. 679, 689, 101 S.Ct. 2088, 2095, 68 L.Ed.2d 538 (1981), that these procedures are genuinely available and bar the defendant from suit.1 That situation existed in this case: Local 863 originally pleaded in its answer in the district court that the action should be dismissed for want of exhaustion, but has abandoned the claim. Assume further, however, that the union argues that, because the availability of real internal remedies ceased more than six months ago and because suits against the union were thus permissible under Clayton for more than six months before the plaintiff filed suit, the DelCostello statute of limitations now bars the employee’s action against it. This situation has also occurred here and yet the majority, without significant support in precedent, and without explanation, would apparently accept this argument.2
The problem is that, unlike other situations where the twin defenses of failure to exhaust and the statute of limitations combine to give the litigant a narrow window in which to file suit, here there is no guarantee that statutes, regulations, or other forms of clear, written notice will exist that warn the plaintiff of his peril. On the contrary, precisely because the majority here has allowed it to benefit them in litigation, union officials may well be equivocal or contradictory in their communications to dissatisfied members and may send such communications through persons within the internal union hierarchy whose authority to bind the union is at best hazy. As a result, the potential suitor will not know when exhaustion is futile.
Several harmful consequences are likely to follow from court-inspired vagueness of these union communications. First will come a guessing game. To determine whether a plaintiff’s suit can go forward, *231overburdened district courts will be remitted to a tedious and often useless search through the vagaries of union bylaws or will be forced to rationalize informal union procedures likely to have been invented for each dispute. If it is thereby determined that the suitor has not exhausted, his day in court is, at worst, delayed. But if, in reliance on what he thought were genuine internal remedies, he refrains from suing for as much as six months, and it is ultimately determined that these remedies were illusory, his suit will be forever barred. Second, to avoid this trap, employee plaintiffs will have to file numerous precautionary lawsuits — each of which will require the courts to undertake the bootless inquiry described below — in the hopes that perhaps one of the suits will have been timed correctly.
Were this guessing game to work only to the disadvantage of employees, a case could conceivably be made that the problem is best left to the internal majoritarian processes of the union. Union members arguably might cure the problem either by voting to decertify unions that disadvantaged them in this fashion or by voting — if such be permitted — for internal union procedures that made clear when internal exhaustion occurred. However, those with a grievance against their union arising out of some breach of the duty of fair representation are not likely to have possessed the power to bring about fair and clear internal union procedures. Moreover, where the likely complexities or arbitrariness of union procedures burden the courts as well, I see no reason to defer to its alleged majoritari-an processes.
I think we should eliminate guesswork by conditioning union use of this pincer defense on its compliance with a rule of fundamental fairness. Specifically, a defendant in a Vaca v. Sipes style suit under section 301 of the LMRA should be able to invoke the Clayton “futility exception” and thus start the DelCostello statute of limitations running only from the time that the employee has received from it a clear, written statement telling him that further internal appeals are futile, and the time for judicial action has begun. This would be analogous to a right to sue letter in employment discrimination law. Alternatively— and I believe equivalently — the union may start the statute of limitations running by waiving (in equally express terms) any reliance on its right under Clayton to bar suits for the failure of the employee to exhaust internal union remedies.
Accordingly, I would remand this case to allow the district court to determine whether and when the other plaintiffs were given such notice by the union defendants: If they were not, I would let their suit proceed.
. Clayton establishes that district courts have discretion whether or not to require exhaustion of internal union procedures.
In exercising this discretion, at least three factors should be relevant: first, whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim; second, whether the internal union procedures would be inadequate either to reactivate the employee’s grievance or to award him the full relief he seeks under § 301; and third whether exhaustion of internal procedures would unreasonably delay the employee’s opportunity to obtain a judicial hearing on the merits of his claim.
451 U.S. at 689, 101 S.Ct. at 2095. Clayton and Goclowski, cited in part III of the majority opinion, discussed only the availability of the “exhaustion defense” to unions and employers sued under section 301. Neither dealt at all with the union’s ability to invoke the futility of its own nominally available remedies as a method of barring suits against it. While the statute of limitations should logically begin to run no later than the moment when exhaustion occurs, I do not believe this fact means — and I do not read the majority opinion as taking it to mean — that the conditions under which a defendant union may invoke the exhaustion defense are precisely the inverse of the conditions under which it may start the statute of limitations running.
. It is conceivable that the majority has simply deferred outlining the precise contours of the defense it establishes until a district court has held the defense to bar suit. While I sympathize with the desire not to decide unnecessary issues, I believe it is preferable here to specify the rule of law to be applied on remand. The factual record is ample, and the issue squarely before us.