Moore, and Friendly, Circuit Judges, and Bryan, District Judge.
This is an appeal from a final judgment of the District Court for the District of Connecticut dismissing the two counts of the complaint laid against defendant-appellee American Cyanamid Company (Cyanamid). The judgment appealed from was entered upon an order of the District Court, pursuant to Rule 54(b), F.R.C.P., after motions by Cyanamid for dismissal and summary judgment had been granted.
In this action Desrosiers sued his former employer Cyanamid in two counts and his former Union, Local 436, International Chemical Workers (the Union) in two other counts. The two counts against Cyanamid charge refusal to transfer Desrosiers for medical reasons from his job as a painter to another physically less taxing in violation of Section 10.25 of the collective bargaining agreement then in force between Cyanamid and the Union. The two counts against the Union, which are not involved in this appeal, charge a violation of the duty of fair representation by failing and refusing to assist Desrosiers to obtain the transfer which he sought. Jurisdiction is alleged under § 301 of the Labor-Management Relations Act of 1947, 29 U.S.C. § 185, and § 102 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 412.
This is the second action brought by Desrosiers in the Connecticut District Court against Cyanamid for this alleged breach of the collective bargaining agreement. The first, a diversity action in which the Union was not named as a party, was dismissed by Judge Blumenfeld at the outset of the trial on the ground that Desrosiers had failed to utilize the grievance procedure provided in the collective bargaining agreement, and that under Republic Steel Corp. v. Maddox, 379 U.S. 650, 13 L. Ed. 2d 580, 85 S. Ct. 614 (1965), he was required to do so before he could resort to the courts. No appeal was taken from that judgment.
Instead Desrosiers commenced the present action, this time naming both Cyanamid and the Union as defendants. The first count of the complaint, laid against Cyanamid alone, largely duplicates the complaint in the prior action. It alleges in substance the following:
Desrosiers had been employed for many years as a painter in the Cyanamid plant at Wallingford, Connecticut, and was a union member in good standing. During the course of his employment he suffered two severe back injuries, after which he was physically unable to perform his job as a painter, as Cyanamid was aware. It is alleged that in these circumstances under Section 10.25*fn1 of the collective bargaining agreement Desrosiers was entitled to be transferred to another job of equal or lower classification if such a job was available and that such jobs were available. Between January 1, 1960 and November 16, 1962, his requests to Cyanamid for a transfer were rejected or ignored in violation of the agreement. As a result Desrosiers was forced to terminate his employment with Cyanamid and to accept employment elsewhere at lower wages and with reduced benefits for which he seeks damages. Allegations, not pleaded in the prior action, were added to the effect that many requests to the Union for assistance in obtaining a transfer under Section 10.25 of the agreement had also been rejected or ignored.
The second count, after repeating the allegations of the first, alleges in addition that "the refusal or failure of the defendant American Cyanamid Company to transfer the plaintiff was wanton and wilful conduct, was done with the knowledge and consent and connivance of the defendant union and was part of a conspiracy between the defendants to deprive the plaintiff of his rights under the agreement."
Cyanamid moved before Judge Blumenfeld pursuant to Rules 12(b) and 56, F.R.C.P., for dismissal and for summary judgment on the two counts on the grounds that the judgment of dismissal in the first action was res judicata as to the claims asserted, and that Desrosiers' failure to avail himself of contract grievance procedures precluded resort to the court in any event. In support of its motion Cyanamid relied solely on the complaint in the present action, and the pleadings, the brief transcript of the trial and the judgment of dismissal in the prior action.
Desrosiers' affidavit in opposition before Judge Blumenfeld had been previously submitted in the prior action. Its contents were concisely summarized by Judge Zampano, sitting in an early stage of that case, as follows:
"* * * plaintiff details numerous incidents during the years 1960, 1961 and 1962 wherein he requested the assistance of his union to obtain a transfer and to process his grievance pursuant to the collective bargaining contract. Rebuffed continuously by excuses, e.g., union officials were 'working on it,' and it was preferable to obtain a medical transfer by 'peaceable means' rather than by using the grievance process, the plaintiff finally aired his disappointment at an open union meeting in October, 1962. Several days later the president of the union indicated the union no longer was interested in helping him because he 'loused up' by having 'shot [his] mouth off' at the union meeting. The International Union's representative likewise refused to intervene because 'they did not wish to jeopardize the good relations that they were enjoying with the Company.'"
On this record Judge Blumenfeld below held that the first count should be dismissed both because Desrosiers had never attempted fully to use the contract grievance procedure*fn2 by filing a complaint in writing with the employer, and because the claim was, in any event, barred by the judgment dismissing the prior action. He also dismissed the second count, containing the added allegations of conspiracy and collusion between the employer and the Union, upon the ground that "plaintiff's failure to present his grievance directly to the company, as recommended in step one of the governing grievance procedure, precludes recovery on a claim of collusion to unfairly represent him."
The underlying issues on this appeal concern the circumstances under which an individual employee, in cases governed by federal law, is required to exhaust grievance procedures provided by a collective bargaining agreement between his employer and his union before he may maintain suit in the courts to enforce rights under that agreement. The question is not without its difficulties in the light of recent case law developments on this subject. These difficulties are illustrated by what has happened thus far in the course of the two cases brought by Desrosiers in the Connecticut District Court.
In the first action (against Cyanamid only) Cyanamid at an early stage moved before Judge Zampano to dismiss the complaint and for summary judgment primarily on the ground that Desrosiers had failed to exhaust the grievance procedures provided in the collective bargaining agreement. Judge Zampano denied the Cyanamid motions on the ground, among others, that the "uncontroverted" facts in his summary of the Desrosiers affidavit already quoted, "may well bring the plaintiff's cause within the holding of Hiller v. Liquor Salesmen's Union Local No. 2," 338 F.2d 778 (2d Cir. 1964), decided only a month before. Hiller, a suit by an employee against his employer and union for breach of a collective bargaining agreement, held that the employee was excused from submitting his grievance to contract arbitration between the defendants where he had charged that they had joined together "to defraud the employee of his rights." 338 F.2d at 779.*fn3 Judge Zampano therefore gave Desrosiers leave "if he should so decide, to file ...