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March 16, 1984


The opinion of the court was delivered by: Shadur, District Judge.


Michael Skrobacz and twenty-one others have sued:

    1. International Harvester Company ("IH") under
  Labor Management Relations Act § 301,
  29 U.S.C. § 185 ("Section 301") for violations of
  a collective bargaining agreement (Count I) and under
  Employee Retirement Income Security Act ("ERISA")
  § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B)
  ("Section 1132(a)(1)(B)") for failure to pay required
  benefits under the employees' retirement plan (the
  "Plan") (Count III); and
    2. Automobile Mechanics Local No. 701 of the
  International Association of Machinists and Aerospace
  Workers ("Union") for breach of its duty of fair
  representation by failing to take plaintiffs'
  resulting grievances to arbitration (Count II).

IH and Union now move alternatively (1) for dismissal of the Complaint under Fed. R.Civ.P. ("Rule") 12(b)(6) for failure to state a claim or (2) for summary judgment under Rule 56.*fn2 For the reasons stated in this memorandum opinion and order, summary judgment is granted in favor of IH on Counts I and III and in favor of Union on Count II.


In September 1982 IH told Union the Melrose ReNew Center ("Center") had been sold and IH planned to close it October 29. Union and IH representatives then met to discuss the impact of the Center's closing on the employees.

On November 26 plaintiffs,*fn3 former Center employees, filed a grievance with Union relating to IH's treatment of sick leave, holiday leave and retirement and insurance benefits. In a separate November 26 letter plaintiffs also filed a charge against Union representatives who had engaged in negotiations with IH about the Center's closing, claiming those unidentified representatives had failed to represent plaintiffs' interests properly. That second charge was lodged pursuant to Union's Constitution (the "Constitution"), not under the collective bargaining agreement.

On December 6 Union President Donald Gustafson ("Gustafson") responded with a letter stating (1) the conclusion plaintiffs' grievance and their charge against unnamed Union representatives lacked merit, (2) his reasons for that decision and (3) Union's decision not to pursue the matter to arbitration. At a December 20 Union meeting to which all former Center employees were invited, Gustafson and Union Vice President Gordon Frank explained Union's position on the grievance and actions it took in the negotiations with IH. Gustafson gave each member at the meeting a copy of his December 6 letter and a December 8 letter from IH as to sick leave benefits. On the following day Gustafson mailed those same materials to each Union member who had not been at the meeting. Union took no further action on the grievances identified in plaintiffs' November 26 letters, and plaintiffs did not appeal those decisions.

On January 26, 1983 plaintiffs reasserted their charges under the Constitution, this time naming four individuals who had assertedly failed to represent plaintiffs' interests properly in negotiations with IH. On February 3 Gustafson appointed a Trial Committee to investigate the matter. On February 16 the Committee recommended the charges be dismissed as nonmeritorious. On March 2 the Union membership voted to accept the Committee's recommendation and Gustafson wrote plaintiffs of the decision to dismiss the charges. Plaintiffs did not appeal that decision as provided for in Constitution Art. I, § 14.

IH's Manager of Employee Pensions David Clemens ("Clemens") stated (by affidavit) IH had received letters from plaintiffs dated November 26, 1982 and January 26, 1983 asking information about their pension and supplemental benefits. On February 23*fn4 Clemens mailed a letter to plaintiffs' designated counsel, explaining why plaintiffs were not eligible for some benefits but might be eligible for others. Even though Clemens included in the letter a copy of the Plan's Claims and Review Procedure, plaintiffs took no further action in that respect.

Instead plaintiffs filed this action August 16, 1983. Though their counsel was fully aware of the location of both IH and Union, service was not effected on either defendant until December 16, 1983. In both instances that was over 120 days after suit was filed.

Counts I and II

IH and Union make the same two arguments against ...

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