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April 21, 1997

MARTY GARY, Plaintiff,
ROADWAY EXPRESS, INC., et al., Defendants.

The opinion of the court was delivered by: ALESIA

 Before the court is defendant International Brotherhood of Teamsters, Local 710's ("Local 710"), motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). For the reasons that follow, the court grants Local 710's motion for summary judgment.


 Plaintiff Marty Gary, who worked for Roadway Express, Inc. ("Roadway"), as a truck driver, was injured in a truck accident on April 1, 1995. Roadway found that Gary's co-driver fell asleep at the wheel, and that Gary was partially responsible in that he coerced his co-driver to remain awake for far longer than the permissible period. Roadway also found that Gary falsified his daily time logs by recording drive time when he was not driving. Based on its findings, Roadway fired Gary effective April 2, 1995.

 As soon as he found out he had been fired, Gary filed a grievance with his union about his discharge. At first, some Local 710 representatives told Gary that his grievance was untimely, but Gary proved with certified mail receipts that he had timely filed the grievance, and Local 710 thereafter represented Gary throughout the grievance process. Another Local 710 representative, Willie Brand, incorrectly told Gary that his grievance could not be heard until Gary was released from the doctor and off of workers' compensation. However, Gary did not believe Brand's statement to be correct, and verified with his union steward that it was not correct.

 Also right after he was fired, Gary found out that Roadway was refusing to pay his health and welfare benefits. Because his wife was scheduled for surgery, Gary immediately called Local 710 representative Jim Harding to ask if he was covered by Roadway's benefits. Harding told Gary that he was covered for a year, but later that night called Gary back and told Gary that he had been mistaken, and that Gary was not covered because he had been fired.

 Notwithstanding what Brand told Gary, Gary's grievance over his discharge was heard in August and September 1995. On September 13, 1995, the Joint Area Committee ("JAC"), the final decision-making body regarding Gary's grievance, found that Gary was fired without just cause and ordered Roadway to reinstate Gary 30 days from the date he receives a release from his doctor, with the 30 days being a suspension without pay.

 Even after the JAC's order, Roadway continued to refuse to pay Gary's health and welfare benefits. On September 22, 1995, Gary contacted Bob Falco, then Local 710's business manager, to ask him why Roadway still was refusing health and welfare coverage to Gary. Gary also called Frank Wsol, Local 710's secretary and treasurer, to ask for his help in getting Gary's benefits reinstated, but Wsol referred Gary's call to Falco. At some point after he was fired but before his benefits were reinstated, Gary also contacted the International Brotherhood of Teamsters for help in getting his benefits reinstated.

 On September 25, 1995, Falco spoke by telephone with the JAC chairman about Gary's benefits and sent a follow-up letter inquiring whether Roadway's refusal to pay benefit to Gary was correct. Falco also arranged for Gary's grievance regarding his benefits to be heard by the arbitration committee on November 1, 1995. Harding attended the November 1, 1995, meeting with Gary, but before the case was heard, a Roadway representative informed Gary and Harding that Roadway had paid the benefits. Roadway paid all the benefits it owed Gary on October 25, 1995, and since then has continued to pay Gary benefits.

 However, Gary was not satisfied with Local 710's representation of him, so he filed this breach of duty of fair representation claim against Local 710 under section 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. ยง 185. *fn2" Local 710 now moves for summary judgment on Gary's breach of duty of fair representation claim.


 A. Standard for deciding summary judgment motion

 A motion for summary judgment must be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The burden is on the moving party to show that no genuine issues of material fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).

 Once the moving party presents a prima facie showing that it is entitled to judgment as a matter of law, the party opposing the motion may not rest upon the mere allegations or denials in its pleadings but must set forth specific facts showing that a genuine issue for trial exists. Anderson, 477 U.S. at 256-57, 106 S. Ct. at 2514; Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). All reasonable factual inferences must ...

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