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 ...