What is the test for a unionized employee's claim of unfair representation under a collective bargaining contract?

Desrosiers v. American Cyanamid Company, 2 Cir., 1967, 377 F.2d 865, 870-71, and Hiller v. Liquor Salesmen's Union Local No. 2, 2 Cir., 1964, 388 F.2d 778, are different. In each case, the employee charged the union with a breach of its duty of fair representation and charged the employer with conspiring with the union in its commission of the breach. In each, it was held that the action should not be abated pending arbitration of the employee's claim of violation of the collective bargaining contract. The essence of the holding in each case is that the breach of the duty of fair representation, and the conspiracy to commit it, are not arbitrable under the collective bargaining contract. We agree. The claims are not based on a mere breach of that contract; they rest upon duties imposed by law, not duties imposed by the contract. It does not follow from these cases that arbitration under the contract cannot proceed. That arbitration, if it proceeds, will result in a binding award if the employee, in his lawsuit, fails to prove his charges of breach of duty of fair representation and conspiracy. If he fails in that proof, his recourse in the courts will be gone and the award will control.