OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
This is a consolidated appeal from two orders issued in separate actions by the United States District Court for the Middle District of Pennsylvania. In the first case, No. 72-1460, plaintiff Hubicki sued defendant ACF Industries, Inc. ("ACF"), seeking damages for his allegedly wrongful discharge from employment and reinstatement to his former job. ACF moved for summary judgment which was granted by Judge Herman on November 4, 1971, on the ground that plaintiff's complaint and affidavit failed to state a cause of action. Hubicki then instituted a second lawsuit, No. 72-1712, this time against ACF and his union, the United Steelworkers of America ("the union"). This case was assigned to Judge Muir who entered a judgment on the pleadings in favor of ACF on the theory that plaintiff's claim was res judicata, D.C., 344 F.Supp. 1247. He also granted the union's motion for summary judgment after finding that there existed no triable issue of material fact and that the union should prevail as a matter of law. Plaintiff appeals from all of these rulings and we affirm.
Jurisdiction is founded in § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). See Smith v. Evening News Ass'n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962).
When Judge Herman granted ACF's motion for summary judgment in the first action, he had before him only plaintiff's very short complaint and his affidavit opposing defendant's motion. The essence of the complaint is that Hubicki had been employed by ACF from May, 1947 until February 25, 1970, when he was wrongfully discharged in violation of the master collective bargaining agreement between the company and the union. In his affidavit, Hubicki states that his house burned down on February 1, 1970, and that he left work two weeks later, with permission, in order to repair another house so that his family would not have to continue to live with relatives. He admits that he might have received a letter from ACF dated February 24, 1970, notifying him of the termination of his seniority rights, but says that he does not remember either receiving or signing for it and that its contents did not come to his attention until early April, 1970. Shortly thereafter, Hubicki discussed his problem with Chairman Ely of the union grievance committee. Ely tried to get plaintiff reinstated but ACF refused, and he then informed Hubicki that there was nothing
The collective bargaining agreement between ACF and the union provided a complete procedure for initiating and processing grievances.
As Judge Herman correctly pointed out, the law is clear "that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress." Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). See Desrosiers v. American Cyanamid Co., 377 F.2d 864 (2d Cir. 1967); Woody v. Sterling Aluminum Products, Inc., 365 F.2d 448 (8th Cir. 1966), cert. denied, 386 U.S. 957, 87 S.Ct. 1026, 18 L.Ed.2d 105 (1967); Broniman v. Great Atlantic and Pacific Tea Co., 353 F.2d 559 (6th Cir. 1965), cert. denied, 384 U.S. 907, 86 S.Ct. 1343, 16 L.Ed.2d 360 (1966). The district court found that no such attempt had been alleged in the present complaint, even when read in conjunction with Hubicki's affidavit, and thus it concluded that the allegations were insufficient to state a cause of action and that ACF should prevail on its motion for summary judgment.
Plaintiff challenges the district court ruling on three grounds. His first contention is that his complaint and affidavit established a valid cause of action. We disagree. It is not asserted in either Hubicki's complaint or his affidavit that he ever took the first step and contacted his foreman about his grievance as required by Section 7-2 of the collective bargaining agreement. Equally important, there is no allegation that plaintiff ever requested the union's help in filing a written grievance in conformance with Section 7-4. In the final paragraph of his affidavit, Hubicki does state that he asked ACF
Plaintiff's next argument is that the district court should have allowed him to amend his complaint since Fed.R.Civ.P. 15(a) provides that court permission for amendments "shall be freely given when justice so requires." We have examined the record in this case, and it does not appear that plaintiff ever made a motion to amend his complaint.
The last issue in plaintiff's first appeal is whether Judge Herman was warranted, after considering plaintiff's complaint and affidavit, in granting ACF's motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Plaintiff's argument on this point is less than clear, but he apparently feels that his complaint was not disposed of on the merits and that summary judgment was therefore improper.
Rule 56(b) authorizes a defending party to move "at any time" for a summary judgment in his favor. Such a motion may be made before pleading to the complaint, Hartmann v. Time, Inc., 166 F.2d 127, 131 (3d Cir. 1947), cert. denied, 334 U.S. 838, 68 S.Ct. 1495, 92 L.Ed. 1763 (1948), and Gifford v. Travelers Protective Ass'n, 153 F.2d 209, 210-211 (9th Cir. 1946), and supporting affidavits are not necessary. Chambers v. United States, 357 F.2d 224, 227 (8th Cir. 1966); Reynolds v. Needle, 77 U.S. App.D.C. 53, 132 F.2d 161, 162 (1942). Hence, defendant's motion in the present case was not premature.
Rule 56(c) provides that a motion for summary judgment shall be granted if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. Since the only facts before Judge Herman were those contained in Hubicki's complaint and opposing affidavit, and since we have already upheld the district court's finding of no cause of action, it is clear that summary judgment was properly granted in this case and that the decision went to the merits. As another court of appeals has observed.
Plaintiff argues that instead of granting ACF's motion for summary judgment, the district court should have treated it as a Rule 12(b) (6) motion to
Consequently, when Hubicki submitted his opposing affidavit, it is evident from this section of Rule 12(b) that even if ACF's motion had been to dismiss rather than for summary judgment, the district court should at that juncture have considered it as a motion for summary judgment.
Finally, even if we accepted plaintiff's argument and held that the motion granted by the district court was in actuality a Rule 12(b) (6) one, this would amount to the proverbial distinction without a difference. Plaintiff's rationale for requesting this "remedy" appears to be his belief that a dismissal for failure to state a claim is not a defense in bar but serves only to abate the action.
For all the reasons above, we conclude that Judge Herman's November 4, 1971 order in 72-1460 granting ACF's motion for summary judgment must be affirmed.
Two months after summary judgment was granted against plaintiff in his first lawsuit, he filed a second complaint against his union alleging that he was wrongfully discharged by ACF and that the union had arbitrarily, capriciously and without reasonable cause refused to employ the contract grievance machinery to protect his interests. This complaint was opposed by a motion to dismiss for failure to join an indispensable party, whereupon plaintiff filed an amended complaint in bifurcated form joining ACF as a defendant. The only new allegation against ACF that did not appear in the first complaint is set forth as paragraph 11:
Plaintiff's primary contention with respect to ACF on this appeal is that his second complaint stated a cause of action against the company and was not barred by the doctrine of res judicata. This doctrine was explained by the Supreme Court in Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948), as follows:
A comparison of the present case against ACF with the one decided by Judge Herman shows that the parties are identical, that the operative facts are all the same, and that the complaint allegations and the relief sought are nearly the same. As we have already noted, only paragraph 11 of the second complaint is new, and even this allegation was contained in paragraph 10 of Hubicki's affidavit
Plaintiff also asserts that the first ACF case does not support a defense of res judicata because it was disposed of by summary judgment for failure to state a cause of action and thus did not go to the merits. We reject this argument since earlier in this opinion we held that summary judgment was properly entered in the first case, and the law is clear that summary judgment is a final judgment on the merits sufficient to raise the defense of res judicata in a subsequent action between the parties. See Wight v. Montana-Dakota Utilities, 299 F.2d 470 (9th Cir. 1962), cert. denied, 371 U.S. 962, 83 S.Ct. 541, 9 L.Ed. 2d 509 (1963) (district court's application of res judicata affirmed where previous district court case involving the same issues had resulted both in a summary judgment against plaintiff for failure to state a cause of action and the dismissal of the action). See also Glick v. Ballentine Produce, Inc., supra.
Plaintiff's final contention in his appeal from Judge Muir's order is that his complaint stated a cause of action against the United Steelworkers and that Judge Muir thus erred in granting the union's motion for summary judgment. The theory of plaintiff's complaint against the union is that it "arbitrarily, capriciously, and without reasonable cause" refused Hubicki's requests to invoke the contract grievance machinery with ACF, thereby violating its statutory duty of fair representation. The standards which govern fair representation suits were recently delineated by
In his brief on this point, plaintiff argues that his affidavit, especially paragraph 14,
In addition to paragraph 14, we have examined the other paragraphs of plaintiff's affidavit and find that none of them set forth a triable issue of material fact. Instead, we think that this affidavit, when read together with its exhibits and the affidavits presented by the union, demonstrates that the union's refusal to process plaintiff's grievance was reasonable or in good faith since Hubicki admittedly did not request it to do so within thirty days of his termination by ACF.
The allegations of a complaint asserting the breach of a union's duty of fair representation must contain more than conclusory statements charging discrimination in order to be actionable. Balowski v. International U., United A., A. & A. Imp. Wkrs., 372 F.2d 829, 835 (6th Cir. 1967). In the present case, the core of plaintiff's complaint is nothing more than a single conclusory statement that the union "arbitrarily, capriciously, and without reasonable course" refused to help plaintiff invoke the contract grievance machinery. His affidavit, as we have previously indicated, fails to allege any substantial facts to support this claim. Plaintiff then has done nothing more than show that he is dissatisfied with the union's actions in this case, that there is a difference of opinion between them. Plaintiff, however, offers no concrete facts from which the presence of hostile discrimination could at least be inferred. On the other hand, there are facts in plaintiff's own affidavit which indicate that there was a rational basis for the union's refusal to process plaintiff's grievance. In view of this, and considering the discretion given unions in grievance disputes by Vaca v. Sipes, we conclude that summary judgment was properly granted in favor of the union.
For all the reasons above, we find that Judge Muir's June 27, 1972 order in 72-1712 granting ACF's motion for judgment on the pleadings and the union's motion for summary judgment must be affirmed.
The judgment of the district court in both cases discussed in this opinion will be affirmed.
GERALD McLAUGHLIN, Circuit Judge (dissenting).
On February 24, 1970 appellant was terminated from his employment by his employer ACF Industries, Inc.
Appellant contends that the Collective Bargaining Agreement between the employer and employee's union (United Steelworkers) is helpful to his claim for reinstatement by his employer under the facts. Appellant has been with appellee for twenty-three years, his whole working lifetime so far. In Republic Steel Corporation v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), the Supreme Court held that employer must attempt the use of contract grievance procedure as to the mode of redress. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). See also the Maddox case above noted. The district court flatly refused to allow appellant to amend his complaint thus putting appellant right out of court. His claim was never disposed of on its merits. We held in Martucci v. Moyer, 210 F.2d 259 (3 Cir. 1954) in a similar situation that summary judgment was not to be allowed as appellant's claim was not decided on the merits. At most the court should have abated the action and not bar it completely as was done here. See also Whitner v. Davis, 410 F.2d 24, 31 (9 Cir. 1969), where even with summary judgment against plaintiff under Rule 15(a), he was entitled to an amendment as plaintiff in this matter is. At most, the action should have been abated until the complaint set up the cause of action properly.
The first complaint in suit is against the employer and we have seen the latter's attitude toward Hubicki.
We now take up the action as to plaintiff Hubicki's claim against his union. On February 1, 1970 appellant's home in Danville was burned to the ground. For two weeks after that, in the middle of the Pennsylvania winter he tried to repair a house in Danville so that he, his wife and family could exist there for the time being. He had that job fairly well accomplished by February 14. He had already notified his employer that he needed time to put the house he was fixing into livable condition. He had the substitute housing basically ready by April 1, 1970. His own family stayed with relatives meanwhile. A letter from his employer terminating his rights did not reach him until sometime around the beginning of April 1970. He promptly notified his union representative who tried to have the employer rescind its action but was told by his union nothing could be done about it. He then asked the company to allow him to present his grievance in accord with the employment contract but the company refused several times. It comes up clearly that at the first chance the union and employer had at Hubicki in twenty-three years they both betrayed the trust that appellant had an absolute right to expect from the both of them. Hubicki's union had the bounden duty to protect the appellant member in his tragic predicament where he had to secure shelter for his wife and children as quickly as possible. The employer knew of Hubicki's problem. There is nothing in this entire case that even attempts to charge that there was any fault whatsoever on the part of the plaintiff. There was basically not the slightest effort on the part of the union or the employer to help Hubicki obtain living quarters for his people and himself and so to enable him to return to his job.
I would reverse the judgment of the district court and order that the union and the employer see to it forthwith that appellant is restored to his job. Whatever wages appellant has lost because of the attitudes of the union and the employer should be ordered to be paid to appellant immediately, half by said union and half by the employer.
ARTICLE VII ADJUSTMENT OF GRIEVANCES
In addition, one of the exhibits attached to Hubicki's affidavit is a letter dated April 10, 1970, which was written to the Editor of a union publication known as "Steel Labor" and which states in relevant part:
From this, it was reasonable for the union to assume that on or about February 24, 1970, Hubicki had actual knowledge of his termination.