March 30, 1979
DORIS HILL & MARY ZURICH, PLAINTIFFS-APPELLANTS,
LEGITIMATE THEATER EMPLOYEES UNION, LOCAL NO. B-183, INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES & MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, AFL-CIO, ET AL., DEFENDANTS-APPELLEES.
HONORABLE HENRY J. FRIENDLY, HONORABLE J. JOSEPH SMITH, HONORABLE WALTER R. MANSFIELD, Circuit Judges .
Doris Hill and Mary Zurich having appealed from an order of the Southern District of New York, entered on October 23, 1978, after a non-jury trial before Judge Robert W. Sweet, dismissing on the merits their action under § 301 of the National Labor Relations Act, 29 U.S.C. § 185, and for breach of contract seeking reinstatement with back pay and other relief, and this court having reviewed the record, read the parties' briefs and heard oral argument, the order of the district court is
AFFIRMED. The findings of the district court, including that of just cause for discharge of appellants, were not clearly erroneous, Rule 52(a), F.R.Civ.P., in view of the existence of sufficient supporting evidence.
Moreover, since defendant-appellee Diehl is sued in his capacity as an officer or agent of the International Alliance of Theatrical Stage Employees, he could not be held liable for breach of the union's duty of fair representation, see Atkinson v. Sinclair Refining Co., 370 U.S. 238, 245-49 (1962); Henry v. Radio Station KSAN, 374 F. Supp. 260, 267 (N.D. Cal. 1974). The International, by assisting the Legitimate Theater Employees Union, Local No. B-183 (Union), did not supplant it or assume the functions of exclusive bargaining agent obligated to represent appellants fairly in the enforcement of their collective bargaining agreement. It therefore was not liable for breach of any such duty, which was assumed by the union only. See Vaca v. Sipes, 386 U.S. 171, 177 (1967); Encina v. Tony Lama Co., 316 F. S/upp. 239, 245 (W.D. Tex. 1970), affd., 448 F.2d 1264 (5th Cir. 1971).
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