"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." National Labor Relations Board v. Industrial Union of Marine-Shipbuilding Workers of America, 391 U.S. 418 at 426, 88 S. Ct. 1717, 1723, 20 L. Ed. 2d 706 (1968).3

Once it is established that the proviso in 29 U.S.C. § 411(a) (4) is a policy guide for the courts and not a grant of authority to the union, and we think that at least this much is established by Marine Workers, supra, then for the purpose of examining the limits of permissible union discipline we are left with these words:

"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." 29 U.S.C. § 411(a) (4).

Appellants urge that in this case the rights which Burroughs sought to protect were member rights as distinguished from employee rights, that the subject matter of the state and federal court actions concerned intra-union matters and did not touch the public domain, and that the actions in the state and federal courts were not brought in good faith,4 and that for each or all of these facts Burroughs should be denied relief. Although appellant's position is not foreclosed by existing case5 authority we do not adopt it.

Section 411(a) (4) speaks of — "an action in any court." The word "action" is in no way limited and there is nothing in the Act which distinguishes between suits involving member6 as opposed to employee rights, between suits involving internal as opposed to external union problems, or between suits brought in good faith as opposed to those brought in bad faith. The right to sue is something less than fully protected7 by the "protection of the right to sue" section of the "Bill of Rights of Members of Labor Organizations" if a member of a union is required to make a pre-suit determination that the union may not discipline him for bringing it because upon a post-suit examination of the matter it will appear to some union official or judge that the member's action was brought in good faith, that the suit concerned affairs of the union touching some part of the public domain affected by the Act8 rather than internal union affairs, or that the rights sought to be protected were "employee" rather than "member" rights. We believe that the language of the Act requires us to reject the considerations urged upon us by appellants and that the policy of the Act is served by such rejection.

What is said here does not deny the Union freedom of self-regulation. Courts have refused to meddle in union management and we do not suggest that they should not continue to refuse. We agree with Mr. Justice Harlan, who said in a concurring opinion in Marine Workers:

"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." N. L. R. B. v. Marine Workers, 391 U.S. at 429, 88 S.Ct. at 1724.

Likewise, we do not condone the use of lawsuits for harassment purposes and do not suggest that a union would not have all of the rights which the law gives to those who are so harassed.9 What we do say is that the freedom to sue is precious; that the winner in a lawsuit should not have the right to discipline the loser; that the potential suitor should not be subjected to the threat of such discipline; and that by virtue of § 411(a) (2) these principles now apply to labor unions.

29 U.S.C. § 412 provides that rights secured by the Bill of Rights may be protected by an action in the district court for such relief, including injunctions, as may be appropriate. Given this statute, may a court refuse an injunction in an otherwise proper case on the ground that the plaintiff has unclean hands? If we are correct in our conclusions that there are no exceptions to the law forbidding labor unions from disciplining their members for bringing actions, then the attempts to discipline Burroughs in this case were illegal regardless of his good faith or lack of it. In this case the duty to enjoin the illegal acts stems from a specific statutory grant and not from the general equitable powers of the court. For the same reasons that we refuse to read any limitations into § 411(a) (4), we refuse to read limitations into § 412.

The judgment is affirmed.

I respectfully dissent. The majority opinion surely cannot survive, since it tends to establish almost complete immunity for union members who harass their unions and disrupt union affairs with vexatious lawsuits. The majority, in cases like this, would divest the District Courts, sitting in equity, of power to deny equitable relief, however unclean might be the hands of the union member seeking such relief. I refer specifically to footnote 4 of the majority opinion, which reads, "If there were a relevant issue of good faith, the summary judgment could not stand in this case because conflicting inferences could be drawn from the record." My Brothers then decide that the faith of the plaintiff, good or bad, in filing his "eleventh-hour" lawsuits was not a relevant issue in this equitable proceeding, and to me, the conclusion is almost incredible!

The issue is clearly framed: Did Congress, in granting jurisdiction to issue injunctions for the protection of the legitimate rights of union members, intend to abolish a defense that has been recognized in courts of equity since their inception? I have found nothing in the legislative history of the Act1 that indicates the slightest Congressional intention to effect such a revolutionary abolition of historical judicial power. Nor can I believe that the Congress would have chosen to manifest such an intention and work such a dramatic consequence by an approach sub silentio. Without a clear legislative mandate, the majority denies several hundred years of judicial history to reach a result that I cannot accept.

The equitable remedy of injunctive relief historically has been available only when a set of extraordinary circumstances renders relief by way of damages inadequate to protect the rights of the plaintiff. The remedy has always been jealously guarded from improper use, equity courts taking the position that circumstances requiring extraordinary relief cannot exist when the plaintiff himself has engaged in meretricious conduct in relation to the controversy. It has been axiomatic that equitable relief will not be granted in a case wherein the plaintiff comes to the court with unclean hands.

The majority reasons that the traditional equitable principle is not applicable to this action, since the District Court's jurisdiction arose from a specific statutory grant and not from the general equitable powers of the court. As far as I know, however, the fact that a remedy may be statutorily prescribed in general terms has never before been held to divest an equity court of its power to apply equitable rules and policy in deciding whether, in a particular set of circumstances, that remedy is appropriate. This is not, for example, a case in which a jurisdictional statute specifies particular remedies for a particular action. In such a case, a court might be disempowered to add equitable relief to specified statutory remedies, or in lieu thereof, See, e. g., Herbold Laboratory, Inc. v. United States 413 F.2d 342 (9th Cir. June 26, 1969). Here the pertinent statute2 is very similar to that involved in Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 80 S. Ct. 332, 4 L. Ed. 2d 323 (1960). In Mitchell the Supreme Court held that sections 15(a) (3) and 17 of the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 215(a) (3), 217, which granted the District Courts jurisdiction to enjoin the discharge of employees for having filed actions against their employers, carried with them the full equitable powers of the District Courts. The provisions there in question are comparable to those with which we are here concerned, those guaranteeing a member's right to sue his union. The question involved in Mitchell was whether the District Courts had been disempowered, by reason of the Fair Labor Standards Act, from rendering equitable relief beyond the injunctive power specifically conferred. In answering the question in the negative, the Supreme Court principally relied upon language found in Porter v. Warner Holding Co., 328 U.S. 395, 397, 66 S. Ct. 1086, 1089, 90 L. Ed. 1332 (1946):

"* * * the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. `The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.' Brown v. Swann, 10 Pet. 497, 503, 9 L. Ed. 508." (Emphasis added.)

The question put at the beginning of the last paragraph of the majority opinion is whether injunctive relief should be denied in "an otherwise proper case" because of the plaintiff's unclean hands. This is not merely a rhetorical question. In my judgment, it is one that points out the majority's inconsistency, for it is the obligation of the court to determine what is a proper case under the statute. See Mitchell v. Robert DeMario Jewelry, Inc., supra.

Determining what is a proper case for the statutory remedy requires construing the statute in light of the general scheme which it portrays and its purposes. The basic purpose of the Act was to ensure democracy within union organizations. See, e. g., S.Rep.No.187, H.Rep.No.741, Conference Rep.No.1147, 86th Cong. 1st Sess. (1959). It is fundamental, however, that no democracy can function if its processes may constantly be disrupted and delayed. Therefore, the interests of the union and its members, as well as those of our society generally, in maintaining orderly union processes are as important as the right of an individual member to challenge those processes. Phillips v. Osborne, 403 F.2d 826 (9th Cir. 1968).

The Supreme Court recognized the interests of the unions in NLRB v. Industrial Union of Marine Workers, 391 U.S. 418, 88 S. Ct. 1717, 20 L. Ed. 2d 706 (1969), the principal case upon which appellee relies, when it noted that "§ 8(b) (1) (A) assures a union freedom of self-regulation where its legitimate internal affairs are concerned." In addition to the protection provided by § 8(b) (1) (A) we should take note that the statute here in question simply provides that "It shall be unlawful for any labor organization * * * to * * * discipline any of its members for exercising any right to which he is entitled under the provisions of this chapter." 29 U.S.C. § 529. If a union member abuses a right by exercising it to inflict vexatious, vindictive harassment, an equity court should no longer protect that right. Surely, the statute must afford room for properly conducted disciplinary proceedings against a member who abuses his rights by exercising them in bad faith.

The majority is concerned that to allow the defense of unclean hands in this action would have the ultimate effect of "chilling" the exercise of the member's right to sue by forcing the potential plaintiff to make a gambling decision based on the probability of whether it will later be determined that he acted in good faith. I am not much disturbed by this possibility, however, since the potential plaintiff could be assured that a finding of good faith would necessarily follow a determination that he had a reasonable basis for belief in his chances of legal victory.3 I am much more concerned with the possibility that a malicious disgruntled member could force his union to waste the resources of his fellow members in defending unmeritorious lawsuits instituted at the last moment to thwart or delay a scheduled election.

The majority suggests that the problem of abuse is amply covered by the availability to the union of injunctive relief to forestall vexatious or oppressive suits. I see this rationale as far-fetched, based upon the unwarranted assumption that the union will always be knowledgeable, in advance, of all litigious courses which a disgruntled member might intend, or choose, to follow.4 Moreover, the union could not ordinarily seek an injunction in such a case except to prevent the member from undertaking to relitigate issues that have already been decided. See Clinton v. United States, 297 F.2d 899 (9th Cir. 1961); Helene Curtis Industries v. Sales Affiliates, 247 F.2d 940 (2d Cir. 1957). Furthermore, courts will not enjoin the pursuit of relitigation of formerly adjudicated issues in an area of law that is unsettled. See, e. g., Texaco, Inc. v. Fiumara, 232 F. Supp. 757 (E. D.Pa.1964). These restrictions evidence extreme reluctance on the part of courts to grant injunctions against the institution or continuation of litigation. In view of the statutory guarantee of the member's right to sue, an injunction prohibiting, initially, the exercise of that right, as the majority suggests, is an anomalous prospect indeed!

On the other hand, it is likely that any relief that the union might have at law would be woefully inadequate. Until quite recently, the cause of action for malicious prosecution has been limited to wrongs perpetrated by means of the criminal processes. See generally 1 F. Harper & F. James, Torts § 4.8, at 326 (1956); C. Prosser, Torts, § 99, at 662 (1959). Some jurisdictions have now begun to recognize a cause of action for the malicious prosecution of civil actions, but it is doubtful that a union's recovery of a money judgment would be meaningful in the context of a dispute with one of its ambitious and disappointed members.5 It is not unreasonable to assume that a judgment-proof member could conceive it to be advantageous to him to pursue a course of harassment, hoping to extort his desired result. I cannot join in an opinion that appears to encourage such a course of action.

It is inconceivable to me that Congress could have intended to strip the District Courts, sitting in equity, of their historical power to do equity in the most exalted sense. I keenly regret that the majority has opened the way for a malicious and disruptive member to sue his union for the purpose of harassment and yet avoid union discipline despite his obviously unclean hands. I respectfully submit that the majority's conclusion defeats the fundamental goal of the Act, the assuring of the equitable functioning of democratic union processes.

If the majority is correct in its view that the pleadings and affidavits sufficiently presented a genuine dispute concerning the doctrine of unclean hands, then I strongly disagree with its conclusion that the District Court had no power to apply the defense. I would therefore remand the cause for the District Court's determination, in a plenary proceeding, of whether the appellee, by his own conduct, had forfeited any right to the favor of equitable relief.6