¶1I agree with the conclusion reached by the court and, in the main, with Judge Burke’s opinion. However, because I believe that the result is dictated as much by policy considerations as by the language of the collective bargaining agreement, I would add these few words.
¶2Discharge cases arise in the course of the administration of a collective bargaining agreement. They may raise countless questions, such as interpretation of the agreement, reasonableness of plant ruléis 'and regulations and conformity with past practices. The exclusive representative is in the best position, after investigating the truth and merits of the employee’s complaint and after weighing the many factors involved, to determine whether uniformity in the administration of the agreement 'and protection of the group interests of the majority of employees require it to press or abandon the case. Accordingly, absent specific language giving the employee the right to act on his own behalf, it is my conclusion that, under a collective bargaining agreement such as the one before us—which contains provision for the submission of unsettled disputes to arbitration — the union alone has a right to control the prosecution of discharge cases. (See Oox, Bights Under A Labor Agreement, 69 Harv. L. Bev. 601, 648-652.)
¶3To the contention that this may subject the individual employee to capricious or discriminatory action by the union, it is sufficient to observe, as Judge Burke has intimated, that the employee has a remedy against the union for breach of fiduciary duty if it unfairly discriminated against him. (See, e.g., Donato v. American Locomotive Co., 306 N. Y. 966, affg. 283 App. Div. 410, 417; Conley v. Gibson, 355 U. S. 41, 45 et seq.)
¶4The clause in this labor contract that no regular employee shall be discharged or disciplined without good and sufficient cause, is not eouivalent to *163providing term employment for each employee until the expiration date of the collective bargaining agreement. Under the ruling in Rotnofshy v. Capitol Distrs. Corp. (262 App. Div. 521), the union could have obtained redress by arbitration if an employee were discharged for union activity, without being put to the necessity of prosecuting an unfair labor practice claim before the Labor Board. The presence of a closed or union shop clause in the agreement in the Rotnofshycase (as in the present case) strengthens the view that the nondischarge clause is to implement the prevention of anti-union activity. If plaintiff-appellant had an individual right to term employment by defendant-respondent, instead of the employment being at will, he would be entitled to intervene in any arbitration proceeding instituted by the union or to commence such a proceeding himself if the union refused to do so or, if he could not do that, to sue the employer at law (cf. Donato v. American Locomotive Co., 283 App. Div. 410, affd. 306 N. Y. 966). If plaintiff has an individual right, then, under the law, he must also have a remedy (Schuster v. City of New York, 5 N Y 2d 75; 11 Am. jur., Common Law, § 2, pp. 154-155). The Donato case (supra) is not to the contrary. It is said in the opinion there in the Appellate Division that where an individual employee has enforcible rights of his own under a collective bargaining agreement, an individual employee may have the right to maintain a direct action for damages where there is no arbitration clause barring such an action and, where arbitration is the exclusive remedy under the contract, to demand arbitration if the union is neglectful of his rights. The portion of the Donato opinion which is quoted in the majority opinion in this case does not express the holding of the court therein but only what was phrased as one possible alternative which was not adjudicated. The Appellate Division said there (p. 415): “We are not called upon to decide in this ease what remedies the plaintiff might have had if he had acted promptly and had pursued a different course ”, concerning which it is remarked that “ The law upon this subject is still in a state of flux.”
¶5The union may not have a beneficial interest in the job tenure of employees. Such a holding would enable a labor union in its discretion to prevent any of its members from receiving the benefit of union wage scales or other individual property rights *164secured to the employees by collective bargaining agreements. Where such an agreement enures to the direct benefit of employees (Barth v. Addie Co., 271 N. Y. 31; Gulla v. Barton, 164 App. Div. 293), a union cannot exert power over its members by attempting to provide in the contract that what the union obtains for them the union can also take away. In the pending action, however, as the Appellate Division has held, this labor contract provides for no term of employment enforeible by anyone, and the clause in question is solely for the benefit of the union in order to prevent attacks upon it by discrimination in the discharge of union members. For this reason I vote to affirm the order of the Appellate Division.
¶6Chief Judge Conway' and Judges Desmond, Dye and Froessel concur with Judge Burke; Judges Fuld and Van Voorhis concur in separate opinions.
¶7Judgment affirmed.