UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: June 24, 1968.
LOCAL 1251, INTERNATIONAL UNION OF UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, ET AL., PLAINTIFFS-APPELLANTS,
ROBERTSHAW CONTROLS COMPANY, DEFENDANT-APPELLEE
Lumbard, Chief Judge, Waterman, Moore, Friendly, Smith, Kaufman, Hays, Anderson and Feinberg, Circuit Judges. Waterman, C.j. (concurring).
HAYS, C. J. (with whom LUMBARD, Ch. J., MOORE, FRIENDLY, SMITH, KAUFMAN, ANDERSON and FEINBERG, C. J., concur):
This is an action brought by a union and certain of its members on behalf of themselves and others similarly situated to recover damages for breach of a collective bargaining agreement between the union and Lux Clock Manufacturing Company, Inc. The individual plaintiffs, who were employed in Lux's Waterbury, Connecticut plants, were laid off when Lux transferred two departments to its Lebanon, Tennessee plant. They contend that, under the seniority provisions of the 1960 collective bargaining agreement then in force, they were entitled to recall to available jobs at the Lebanon plant.
The defendant, Robertshaw Controls Company, which acquired all of the assets of Lux in 1961, moved for summary judgment in the district court below partly on the ground that the collective agreement did not give the Waterbury employees any rights at the Lebanon plant. The district court granted the motion on that ground. We affirm.
Lux was a clock manufacturer with plants located in Waterbury and Lebanon, and in Oakville, Ontario. Beginning in 1953 Lux from time to time for economic reasons transferred some of its operations from the Waterbury plants to its plants in Lebanon and Oakville. These transfers resulted in the layoff of a number of workers employed in the Waterbury plants. The transfer involved in this case was the most substantial, requiring the layoff of more than two hundred employees.
The plaintiff union was certified as the bargaining representative of the employees at the Waterbury plants in December, 1955. In May, 1956 the union and Lux concluded the first of a series of successive collective bargaining agreements. It is the 1960 agreement on which plaintiffs rely in the present case.*fn1
Concededly there is no language in the relevant provisions of the 1960 agreement, set forth in the margin,*fn2 which expressly grants to employees of the Waterbury plants seniority rights at plants located outside of Waterbury. Nor does the bargaining history suggest that any of these provisions should be read to include such rights. Despite the patter of periodic transfers of operations from Waterbury, at no time prior to the negotiations for the 1960 contract did the union request that employees be given severance pay or priority rights at the other plants. A proposal for severance pay was made during the 1960 contract negotiations, but was rejected by Lux.
In the last analysis, plaintiffs' claim rests entirely on the decision of this court in Zdanok v. Glidden Co., 288 F.2d 99 (2d Cir.), cert. denied on this issue, 368 U.S. 814, 82 S. Ct. 56, 7 L. Ed. 2d 22 (1961).*fn3 The Glidden Company decided to close its plant in Elmhurst, New York and to move its equipment to a new and modern plant in Bethlehem, Pennsylvania. Certain employees at the Elmhurst plant who were laid off as a result of this move brought suit, alleging that the company had breached a collective bargaining agreement by failing to recall them with seniority to available jobs at the Bethlehem plant. The district court construed the seniority provisions, which were similar to those in the present case, as applying only to seniority at the Elmhurst plant and found for the defendant. On appeal, this court reversed, Chief Judge Lumbard dissenting.
The majority opinion held that seniority rights survived beyond the term of the collective agreement, which had expired shortly after the plaintiffs were laid off. The court then turned to the question whether these rights also survived the change in plant location. The agreement recited that it was made by the defendant "for and on behalf of its plant facilities located at Corona Avenue and 94th Street, Elmhurst, Long Island, New York" but the court refused to give this language controlling significance. Zdanok v. Glidden Co., supra 288 F.2d at 103. The court said that the burden to defendant of offering employment with seniority to Elmhurst workers at Bethlehem was not great. The court found that "the reasonable expectations of the parties" would be fulfilled by construing the contract to accord the Elmhurst employees seniority rights at the Bethlehem plant. Id. at 104.
The decision provoked considerable law review comment, most of it adverse. See, e.g., Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv. L. Rev. 1532 (1962); Lowden, Survival of Seniority Rights Under Collective Agreements: Zdanok v. Glidden Co., 48 Va. L. Rev. 291 (1962) [author is attorney for appellee in the present case]; Turner, Plant Removals and Related Problems, 13 Lab. L.J. 907 (1962); Note, Labor Law Problems in Plant Relocation, 77 Harv. L. Rev. 1100, 1117-21 (1964); Note, Industrial Mobility and Survival of Seniority -- What Price Security?, 36 S. Cal. L. Rev. 269 (1963); 61 Colum. L. Rev. 1363 (1961); 40 Texas L. Rev. 721 (1962). But see, e.g., Blumrosen, Seniority Rights and Industrial Change: Zdanok v. Glidden Co., 47 Minn. L. Rev. 505 (1963); 110 U. Pa. L. Rev. 458 (1962). See also Panel Discussion, Plant Removals and Related Problems, 13 Lab. L.J. 914-22 (1962); Seminar, Plant Removals and Subcontracting of Work, 14 Lab. L.J. 366-79 (1963); articles cited in Zdanok v. Glidden Co., 327 F.2d 944, 952 n. 11 (2d Cir.), cert. denied, 377 U.S. 934, 12 L. Ed. 2d 298, 84 S. Ct. 1338 (1964).
Labor arbitrators have refused to follow the Glidden decision. See Empire Textile Corp., 44 Lab. Arb. 979, 984-85 (Scheiber, 1965) ("Glidden, whose effective life was short, has proven to be, under sound law, an unsafe guide and a dim beacon"); Paragon Bridge & Steel Co., 44 Lab. Arb. 361, 369 (Casselman, 1965) ("No courts or authorities in the field have been found who attribute any remaining vitality to [the Glidden case]"); Sivyer Steel Casting Co., 39 Lab. Arb. 449, 454-55 (Howlett, 1962); United Packers, Inc., 38 Lab. Arb. 619 (Kelliher, 1962). See also International Shoe Co. v. International Ass'n of Machinists, 66-2 CCH Lab. Arb. Awards para. 8621 (McCoy, 1966); Marsh Wall Products v. Carpenters Local 2288, 65-2 CCH Lab. Arb. Awards para. 8774 (Kagel, 1965); H. H. Robertson Co., 37 Lab. Arb. 928, 932 (Duff, 1962).
In Oddie v. Ross Gear and Tool Co., 305 F.2d 143 (6th Cir.), cert. denied, 371 U.S. 941, 9 L. Ed. 2d 275, 83 S. Ct. 318 (1962), the Court of Appeals for the Sixth Circuit was required to decide the right of employees under seniority provisions of a collective agreement to "follow their work" from Ross's Detroit plant when a part of the operations there were transferred to a new plant at Lebanon, Tennessee. The Court held that the clause in the agreement in which Ross recognized the union as the exclusive representative "of its employees in its plant or plants which are located in that portion of the greater Detroit area which is located within the city limits of Detroit . . ." placed geographical limitations on the employees' seniority rights.Although it sought to distinguish Glidden, the court's opinion in Oddie is clearly at odds with the spirit of the Glidden decision.
Subsequent cases have found the reasoning of Oddie more persuasive than that of Glidden. See Neal v. Reliance Electric & Engineering Co., 12 Ohio App. 2d 183, 231 N.E. 2d 882 (1967); Woody v. Sterling Aluminum Products, Inc., 243 F. Supp. 755, 776 (E.D. Mo. 1965), aff'd, 365 F.2d 448 (8th Cir. 1966), cert. denied, 386 U.S. 957, 18 L. Ed. 2d 105, 87 S. Ct. 1026 (1967); Slenczka v. Hoover Ball and Bearing Co., 215 F. Supp. 761 (N.D. Ohio 1963). But see Thompson v. Brotherhood of Sleeping Car Porters, 243 F. Supp. 261, 268-70 (E.D. So. Car. 1965), aff'd, 367 F.2d 489 (4th Cir. 1966), cert. denied, 386 U.S. 960, 18 L. Ed. 2d 110, 87 S. Ct. 1019 (1967) (dictum).
Indeed, apart from failing to generate acceptance elsewhere, Glidden has lost much of its authority in this circuit. We said in Procter and Gamble Independent Union v. Procter & Gamble Mfg. Co., 312 F.2d 181, 186 (2d Cir. 1962), cert. denied, 374 U.S. 830, 10 L. Ed. 2d 1053, 83 S. Ct. 1872 (1963), that "Zdanok cannot properly be read to govern situations which are not strictly within the facts there presented. More particularly the case cannot be made to stand in any general way for the survival of contractual obligations during any period beyond the period for which they were expressly undertaken." The authority of Glidden was further eroded in a second appeal in the case of Zdanok v. Glidden Co., 327 F.2d 944 (2d Cir.), cert. denied, 377 U.S. 934, 12 L. Ed. 2d 298, 84 S. Ct. 1338 (1964). The court there held that because of the law of the case doctrine evidence of bargaining history (which, the district court had noted, revealed that the parties did not have the expectations attributed to them by the Court of Appeals on the first appeal) could not properly be introduced on the remand following the first appeal. After characterizing the action of the court in Oddie in distinguishing Glidden as polite and noting that the two cases were not fairly distinguishable, Judge Friendly said:
"What the Oddie ruling does create, particularly when it is superimposed on Chief Judge Lumbard's earlier dissent here and the great amount of critical discussion in the law reviews that our decision has engendered, is doubt whether, if other similar contracts should come before us for construction, we ought follow the lead of our divided decision in this case or of the unanimous contrary one of the Sixth Circuit in Oddie." 327 F.2d at 952.
We are persuaded that the reasoning of the majority opinion in the Glidden case was erroneous and that that erroneous reasoning led to an incorrect result. For example, the basic proposition of the opinion, that seniority is a vested right, finds no support in authority, in logic or in the socio-economic setting of labor-management relations. Seniority is wholly a creation of the collective agreement and does not exist apart from that agreement. The incidents of seniority can be freely altered or amended by modification of the collective agreement. Ford Motor Co. v. Huffman, 345 U.S. 330, 97 L. Ed. 1048, 73 S. Ct. 681 (1953). In giving seniority a conceptual status apart from the provisions of the collective agreement and the intentions of the parties the Glidden opinion seriously misconceived the nature of the employment relationship and dealt "a blow to labor-management relations."*fn4
The Glidden opinion stated that the court was "adopting the more rational, not to say humane, construction" of the agreement and that another construction "would be irrational and destructive." 288 F.2d at 104. However, as Chief Judge Lumbard said in his dissent in Glidden:
"We are called upon to construe the contract upon which the parties agreed and not to substitute for it one with more humane or less destructive terms." 288 F.2d at 105.
Those few who have applauded the decision have not attempted to justify it in terms of contract analysis. Rather they have sought to defend the result upon the basis of equitable considerations or of national labor policy. The sources of these policies and equities are obscure and there is the gravest doubt of the power of the federal courts to apply them in derogation of the contract of the parties.
In Chief Judge Lumbard's words (288 F.2d at p. 105, dissenting opinion):
"If rights are to persist beyond the term of the collective-bargaining agreement, the agreement must so provide or be susceptible of such construction."
It is time that Glidden be formally interred. It is therefore expressly overruled.
WATERMAN, C.J. (concurring):
Though I was of the majority in Zdanok v. Glidden Co., I concur in the overruling of that case. The result reached there has received notoriously scant acceptance. Therefore, not formally to overrule the case when a decent opportunity presents itself to do so would render a disservice to jurisprudence. To be sure, as pointed out by Judge Hays, the present case is easily distinguishable on its operative facts from the operative facts in Zdanok v. Glidden Co., and could have been easily decided without disturbing the precedential value of the older case within the limited area where the precedent could remain applicable. Nevertheless, I am happy to join in the destruction of that precedent.