rules with respect to grievances or submissions and so it cannot be determined whether a decision without hearing or notice is a breach of the agreement. It is only through a strained reading of the complaint that it can be said that the conspiracy involved was to wrongfully breach the contract with respect to the dovetailing provisions. Moreover, when conspiracy is charged, there should be some details of time, place, and the alleged effect of the conspiracy. 2A Moore, Federal Practice para. 8.17 (2d ed. 1962); cf. Mandel v. Highway and Local Motor Freight Drivers Union, S.D.N.Y. 1964, 246 F. Supp. 805.
The complaint is also deficient as it concerns the period from January 24, 1966, when the decision was rendered (or at least from February 20, 1966, when the transfer of the men to Harrisburg was effective) to November 13, 1967, when plaintiffs became employees of Hall's. There is nothing to indicate whether they came under the jurisdiction or protection of 776 or 992 during that time. If, as appears, 992 was their authorized bargaining representative during that period, it is difficult to see how the failure of 776 to act on plaintiffs' grievance would give rise to a cause of action against it. The complaint alleges that during that time 776 made fraudulent representations that plaintiffs had no standing to file a grievance. The meaning of this is not apparent. Did they lack standing in the sense that 776 could not act on the grievance because they were within 992's jurisdiction? Or was it because they came under the jurisdiction of neither? Or was it because the finality agreed to by the parties to the original submission of the dispute to the Conference foreclosed any further question? Intent and reliance are not shown. "In all averments of fraud . . ., the circumstances constituting fraud . . . shall be stated with particularity." Rule 9(b), Fed. R. Civ. P.; 2A Moore, Federal Practice para. 9.03 (2d ed. 1967).
The complaint does not allege, but for purposes of this motion the court will assume, that plaintiffs, when they went on Hall's payroll in November 1967, came under the jurisdiction of 776. If this were the case, bad faith on the part of 776 in processing the grievance would give rise to an action for breach of duty of fair representation. It should be noted, however, that for the period after November 1967, they are charged with "failing to take a position in support of the plaintiffs," but no bad faith or fraud is alleged. Lack of good faith, improper motive or hostile discrimination are essential elements to be alleged in an action, under Section 301, by a member against his union. Vaca v. Sipes, supra; Hardcastle v. Western Greyhound Lines, 9 Cir. 1962, 303 F.2d 182; cf. Gainey v. Brotherhood of Railway and Steamship Clerks, 3 Cir. 1963, 313 F.2d 318. As stated in Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 338, 97 L. Ed. 1048, 73 S. Ct. 681, "Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion."
The cases cited by plaintiffs do not support their contentions. In Fiore v. Associated Transport, Inc., M.D. Pa. 1966, 255 F. Supp. 596, this court refused to dismiss a complaint by a member against his union and employer where the complaint alleged that defendants' action in agreeing to the dovetailing of seniority lists at two locations was fraudulent, discriminatory and in bad faith. In Mandel v. Highway and Local Motor Freight Drivers Union, supra, it was alleged that the union's failure to prosecute grievances "in good faith" gave rise to a cause of action under Section 301. While only the motion of 776 is before this court, the failure to allege bad faith is applicable to some of the charges against 992 which has not moved to dismiss. See 2A Moore, Federal Practice para. 12.14 (2d ed. 1968).
An order will be entered granting leave to plaintiffs to file an amended complaint, failing which the complaint will be dismissed.
In accordance with memorandum this day filed, it is Ordered that plaintiffs are granted leave to file an amended complaint within twenty (20) days of the date of this order, failing which the action will be dismissed.