Biggs, Van Dusen and Aldisert, Circuit Judges.
The plaintiffs-appellants at all relevant times were and are members of Highway Truck Drivers and Helpers Local 107 and were employed as truck drivers by Novick Transfer Co., Inc., an interstate carrier, at its Philadelphia terminal. Novick merged with Hemingway Transport, Inc., another interstate carrier, which became the surviving company. At the time of the merger, Hemingway, Novick, and Local 107, the exclusive bargaining agent for the Philadelphia terminal employees of both carriers, were parties to a multi-employer, multi-union collective bargaining agreement. As soon as the merger was completed and the plaintiffs became employees of Hemingway at its Philadelphia terminal, the issue was presented whether they should retain their Novick seniority dates or be placed below the original Hemingway drivers on the combined seniority list. The process sought by the appellants is called "dovetailing" while that urged by the defendant-appellee, Local 107, and by the original Hemingway drivers is described as "foot-of-the-list".*fn1
The suit at bar is one for damages and injunctive relief under Section 301 of the Labor-Management Relations Act of 1947, as amended, 29 U.S.C. § 185. The issue presented is whether Local 107 breached its duty of fair representation by the manner in which it participated in the resolution of the seniority dispute. The appellants applied for a preliminary injunction which was denied them by the District Court, 228 F. Supp. 287 (E.D. Pa. 1964). The case then came on for hearing for a permanent injunction and for damages, in all material respects on the record which was before the district court on the application for a preliminary injunction. The appellants were again denied relief and the appeal at bar followed.
The case has a complicated history which we set out in some detail to the end that the dispute between the parties may be plain.
The District Court made, among others, the following findings of fact:
"8. Both the Hemingway drivers and the Novick drivers took the seniority dispute to Local 107. The business agent of Local 107 who had the responsibility of representing both groups of drivers was Joseph Westenberg, to whom both groups of drivers turned.
"9. The initial meeting between the stewards from Hemingway and Novick and agent Westenberg was held on December 27, 1963, at the office of the Union. The Novick drivers were represented by their steward, Joseph Morris, and the Hemingway drivers by their steward, Joseph Mautz. At that meeting, agent Westenberg decided that the two seniority lists would be separately maintained until the dispute over seniority was resolved.
"10. On January 10, 1964, a second meeting was held at Local 107's offices. Present at this meeting were Westenberg, two other officers of the union and an attorney representing the union, Hemingway's district manager, three stewards from Hemingway (including Mautz) and two stewards from Novick (including Morris).
"11. At this meeting, Hemingway's district manager stated that Novick had some outstanding unpaid bills but that it was not insolvent.*fn2 Morris took a position in favor of dovetailing the two seniority lists, and the Hemingway stewards opposed him. Westenberg then suggested calling the Teamster International Headquarters in Washington, D.C., for their recommendation on the dispute. Westenberg spoke to James Harding, special representative of the General President of the International, James Hoffa. Westenberg told the parties then present that the International favored dovetailing the two lists. Westenberg then stated that the Hemingway stewards had the right to file a grievance objecting to the International's proposed solution, and that both he and Al Berman, another business agent of Local 107, would sign the grievance.
"12. On January 14 or 15, agent Westenberg and Hemingway steward Mautz made a trip to Teamster Headquarters in Washington, D.C. Westenberg and Mautz visited James Harding, the same International representative who advised Westenberg by telephone on January 10 that the International favored dovetailing the Novick drivers. Mautz presented the Hemingway drivers' point of view to Harding in the presence of Westenberg.
"13. Westenberg did not tell any of the former Novick drivers that he was making this trip to Washington. The former Novick drivers learned about the trip on or about February 3, 1964, after the Joint Area Committee decision.
"14. The grievance procedure under the Master Agreement provides both for a Joint Local Committee and for a Joint Area Committee, each composed of equal union and management representation. The Joint Local Committee was omitted in the processing of this seniority dispute.
"15. The Joint Area Committee is composed of representatives of the employer and of the six unions which are parties to the Master Agreement. The rules of the Joint Area Committee provide that no representative of the local union or the employer involved in ...