(concurring in result).
I vote to reverse the judgment below, but for a reason different from those stated by Judge KALODNER.
In my view the right asserted by the plaintiff in this case under Section 102 of the Labor-Management Reporting and Disclosure Act of 1959 is limited by the proviso of Section 101(a) (4) authorizing a labor organization to require a member to utilize reasonable procedures, requiring not more than four months, for redress within the organization before taking a grievance to court. 73 Stat. 522, 29 U.S.C.A. § 411(a) (4). The appellee, Sheridan, brought the present suit without waiting a reasonable time for decision upon an appeal he had taken to higher union authority in accordance with a requirement of the constitution of the union. Therefore, this action should have been dismissed as premature.
In greater detail, Sheridan’s own local had removed him from the salaried office of business agent. Section 56(a) of the union constitution requires that “a member must exhaust all resources allowed by the Constitution and Laws of the United Brotherhood before taking a case to the civil courts”. The formalized union grievance procedure gave a discharged business agent in Sheridan’s position the right of successive appeals to the General President and the National Executive Board. Failure to exhaust these intra-union remedies was asserted as a defense to this action.
The record showed and the court below found that his local removed Sheridan from the office of business agent on November 2, 1960. The duties of the business agent were temporarily assigned to the local president. On November 9th, Sheridan appealed to the General President. On November 30th, a representative of the national office conferred with Sheridan and received from him a complete file on the case. Shortly thereafter, the local decided that, on January 6,1961, it would elect a “temporary” business agent to relieve the local president of that responsibility. Objecting to this proposed interim procedure, Sheridan filed the present action on January 4, 1961, demanding both his own reinstatement and an order restraining the local from electing a temporary business agent.
On these facts it is apparent that the present claim for reinstatement, or damages in lieu thereof, has been filed in derogation of the union grievance procedure which Sheridan himself had invoked. But the statute precludes a court from giving judicial relief to a union *160member who has not exhausted reasonable intra-union hearing procedures which the union provides and requires before resort to a court. Penuelas v. Moreno, S.D.Cal.1961, 198 F.Supp. 441; Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv.L.Rev. 851, 869-70. The correctness of this conclusion is strongly indicated by the scheme of the statute.1 The limiting proviso in Section 101(a) (4) states that a union member “may be required” to exhaust intra-union procedures before resorting to litigation. It does not say who may impose that requirement. But the principal matter in the subsection is a prohibition against union interference with resort by its members to the courts, and that prohibition is qualified by the proviso stipulating that the exhaustion of reasonable intra-union remedies may be required. It is reasonable to read both the general restriction and its qualification as statements of what a union may or may not do. Indeed, I think any other reading of the language is artificial and unwarranted. In effect, Congress has said that a union may not restrict a member’s resort to the courts except that it may require that the member first devote not more than four months to reasonable grievance procedures within the organization.2
The court below did not find the union requirement of appeal to its national hierarchy unreasonable. Indeed, the appellate procedure seems to have been clear and appropriate. In this case a national representative began an inquiry within three weeks after Sheridan’s appeal to the General President. Sheridan filed his suit without waiting even two months, much less the four month period set out in the statute, for a decision by the General President. The only justification urged for this precipitate resort to the courts is the fact that the union was about to elect a temporary business agent pending final determination of Sheridan’s grievance. But this prospect afforded no justification for rejecting the grievance procedure. There is no indication that the election of a temporary business agent by the local would have prejudiced Sheridan’s pending appeal to national authority or would have interfered with any proper award of back pay for the period of alleged wrongful deprivation of salaried office. It has been suggested that the election of a “temporary” business agent would have made it more difficult for Sheridan to be reelected a business agent after the end of his term. But the likelihood of the local reelecting the man it had tried and dismissed for dereliction in office, assigning his duties to another officer, was, in any event, small indeed. Thus, no harm was threatened such as would justify removing the issue of wrongful dismissal into the judicial forum without waiting a reasonable time for the General President’s decision on the controversy as submitted to him.
The foregoing analysis leads me to join Judge KALODNER in voting to reverse the judgment of the court below.
. In pertinent part, Section 101(a) (4) reads:
“No labor organization shall limit the right of any member thereof to institute an action in any court * * *: 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 against such organizations or any officer thereof: * *
. In his dissenting opinion, Judge McLaughlin reads Detroy v. American Guild of Variety Artists, 2d Cir., 286 F.2d 75, cert. denied, 1961, 366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388, as bolding that Section 101(a) (4) makes it the function of the trial court rather than the union to decide whether to require an aggrieved union member to utilize his intra-union remedy before filing suit. It is true that a union’s grievance procedures may be ignored if a court decides they do not constitute “reasonable hearing procedures” within the meaning of the proviso to Section 101(a) (4). In the Detroy case, the Court of Appeals was satisfied that the union’s grievance procedures were unreasonably vague and time consuming. Thus, it 'cannot be said that the court would have felt free to relieve the union member of a reasonable union-imposed obligation.