dissenting.
The Court’s opinion makes these Union members— and others similarly situated- — -prisoners of the Union. The law, I think, was designed to prevent that tragic consequence. Hence, I dissent.
The employees involved, who are black and who were members of a Union through which they obtained employment by the Emporium, would seem to have suffered rank discrimination because of their race. They theoretically had a cause of action against their Union for breach of its duty of fair representation spelled out in Steele v. Louisville & N. R. Co., 323 U. S. 192. But as the law on *74that phase of the problem has evolved it would seem that the burden on the employee is heavy. See Vaca v. Sipes, 386 U. S. 171, 190, where it was held that the union action must be “arbitrary, discriminatory, or in bad faith.”
The employees might also have sought relief under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C.. § 2000e et seq., which forbids discrimination in employment on the basis of “race, color, religion, sex or national origin.” Section 704 (a) of that Act makes it unlawful for an employer to “discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by [the Act], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the Act].” In distinguishing “opposition” from participation in legal proceedings brought pursuant to the statute, it would seem that Congress brought employee self-help within the protection of § 704.*
In this case, the employees took neither of the foregoing courses, each fraught with obstacles, but picketed to protest Emporium’s practices. I believe these were *75“concerted activities” protected under § 7 of the National Labor Relations Act. The employees were engaged in a traditional form of labor protest, directed at matters which are unquestionably a proper subject of employee concern. As long ago as New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 552, 561, we observed:
“The desire for fair and equitable conditions of employment on the part of persons of any race, color, or persuasion, and the removal of discriminations against them by reason of their race or religious beliefs is quite as important to those concerned as fairness and equity in terms and conditions of employment can be to trade or craft unions or any form of labor organization or association.”
These observations have added force today with the enactment of Title VII, which unequivocally makes the eradication of employment discrimination part of the federal labor policy, in light of which all labor laws must be construed.
The Board has held that the employees were unprotected because they sought to confront the employer outside the grievance process, which was under Union control. The Court upholds the Board, on the view that this result is commanded by the principle of “exclusive representation” embodied in § 9 of the NLRA. But in the area of racial discrimination the Union is hardly in a position to demand exclusive control, for the employee’s right to nondiscriminatory treatment does not depend upon Union demand but is based on the law. We held in Alexander v. Gardner-Denver Co., 415 U. S. 36, that a union may not circumscribe an employee’s opportunity to seek relief under Title VII. We said there that Title VII “concerns not majoritarian processes, but an individual’s right to equal employment opportunities. Title YII’s strictures are absolute and represent a congres*76sional command that each employee be free from discriminatory practices.” Id., at 51.
The law should facilitate the involvement of unions in the quest for racial equality in employment, but it should not make the individual a prisoner of the union. While employees may reasonably be required to approach the union first, as a kind of “exhaustion” requirement before resorting to economic protest, cf. NLRB v. Tanner Motor Livery, 419 F. 2d 216 (CA9), they should not be under continued inhibition when it becomes apparent that the union response is inadequate. The Court of Appeals held that the employees should be protected from discharge unless the Board found on remand that the Union had been prosecuting their complaints “to the fullest extent possible, by the most expedient and efficacious means.” 158 U. S. App. D. C. 138, 152, 485 F. 2d 917, 931. I would not disturb this standard. Union conduct can be oppressive even if not made in bad faith. The inertia of weak-kneed, docile union leadership can be as devastating to the cause of racial equality as aggressive subversion. Continued submission by employees to such a regime should not be demanded.
I would affirm the judgment below.
See CCH EEOC Decisions (1973) ¶6264 (Apr. 19, 1971). There the EEOC held that in spite of a collective agreement involving a “no strike” clause an employee might picket the plant for discrimination against blacks. The Commission said:
“An employee has a statutory right under Title VII to oppose, without retaliation, any unlawful employment practices of his employer. We believe this right cannot be abolished or diminished by a collective bargaining agreement. The protection which Title VII affords to Charging Party No. l’s conduct may be analogized to the protection the National. Labor Relations Act affords employees who picket in protest against unfair labor practices committed by their employer, although there exists a valid collective bargaining agreement containing a no-strike clause.”
The Commission rightly concluded that that decision was in line with Mastro Plastics Corp. v. NLRB, 350 U. S. 270.