Jesus Zuniga v. United Can Company and Driver-Salesmen, Produce Workers, and Helpers, Local 588, Retail Delivery Drivers

I

FACTUAL AND PROCEDURAL BACKGROUND

This is an action brought by a union member under section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185 (1982), against his employer and union. The union and employer had entered into a collective bargaining agreement governing the terms and conditions of plaintiff’s employment and containing grievance procedures for resolving disputes arising thereunder. The complaint contended that the employer had breached the collective bargaining agreement and that the union had breached its duty of fair representation with respect to plaintiff’s claim for sick leave benefits owing for the period from January 4, 1982, through September 27,1982.

The collective bargaining agreement provides that employees of United Can Company who are “incapacitated and unable to perform available work” for certain stated reasons including occupational illness or disease are entitled to sick leave pay. When reports filed by the company’s physician and the employee’s physician disagree as to whether the employee is disabled so as to be entitled to sick leave benefits, the collective bargaining agreement provides for “medical arbitration.” The employer and the…