Submitted to the En Banc Court June 4, 1968.
HAYS, Circuit Judge (with whom LUMBARD, Chief Judge, MOORE, FRIENDLY, SMITH, KAUFMAN, ANDERSON and FEINBERG, Circuit Judges, 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
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.
Concededly there is no language in the relevant provisions of the 1960 agreement, set forth in the margin,
In the last analysis, plaintiffs' claim rests entirely on the decision of this court in Zdanok v. Glidden Co., 288 F.2d 99, 90 A.L.R.2d 965 (2d Cir.), cert. denied on this issue, 368 U.S. 814, 82 S.Ct. 56, 7 L.Ed.2d 22 (1961).
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
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 ¶ 8621 (McCoy, 1966); Marsh Wall Products v. Carpenters Local 2288, 65-2 CCH Lab.Arb. Awards ¶ 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, 83 S.Ct. 318, 9 L.Ed.2d 275 (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' 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, 87 S.Ct. 1026, 18 L.Ed.2d 105 (1967); Slenczka v. Hoover Ball and Bearing Co., 215 F.Supp. 761 (N.D.Ohio 1963). But see Thompson Brotherhood of Sleeping Car Porters, 243 F.Supp. 261, 268-270 (E.D.So.Car.1965), aff'd, 367 F.2d 489 (4th Cir. 1966), cert. denied, 386 U.S. 960, 87 S.Ct. 1019, 18 L.Ed.2d 110 (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, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (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, Zdanok v. Glidden Co., 327 F.2d 944 (2d Cir.), cert. denied 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (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
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, 73 S.Ct. 681, 97 L.Ed. 1048 (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."
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:
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):
It is time that Glidden be formally interred. It is therefore expressly overruled.
WATERMAN, Circuit Judge (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. Here only two departments were transferred to Tennessee; there the Glidden Company completely closed its Elmhurst plant. Nevertheless, I am happy to join in the destruction of that precedent.
The 1960 contract included a change in the seniority provisions first made in 1957. The rights were expanded to give employees with less than five years of seniority recall rights after layoff of up to one year and employees with five or more years of seniority recall rights of up to two years.
Articles of Agreement
This agreement is made and entered into on this 10th day of August, 1960 by and between the Lux Clock Mfg. Co., Inc., hereinafter referred to as the Company, and the International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW) for and on behalf of its unit of the Waterbury Brass Workers Union Local 1251, hereinafter referred to as the Union, acting as the sole and exclusive bargaining agency of the employees in the Unit hereinafter defined.
The Company recognizes the Union as the exclusive representative of all production and maintenance employees, including Stock Clerks, of the Company in its Waterbury Plants for the purpose of collective bargaining in respect to wages, hours, and other conditions of employment.
Except as otherwise specifically provided in this Agreement, nothing herein contained shall be construed as limiting or restricting the right of the Company to manage and direct the working force, including the right to hire, promote, suspend discharge or discipline for proper cause, or to transfer employees to other duties, to maintain discipline and efficiency, to release employees from duty because of lack of work or other legitimate reasons, to determine products to be manufactured, to extend, limit or curtail its operations when in its sole discretion it may deem it advisable to do so, to decide the extent and location of its operations, the machine and tool equipment, methods of manufacture, schedules of production, process of manufacturing or assembling; all designing, engineering, and control of raw materials, work in process, and finished parts which may be incorporated into the products manufactured.
Seniority is the relative status of employees with respect to continuous Company service unbroken by discharge, voluntary termination, or lay-off exceeding one year in the case of employees with less than five years seniority and two years in the case of employees with five or more years seniority. The periods spent in Armed Forces that are protected by law, and the period during which a person is necessarily absent because of a compensable injury as finally approved in accordance with the provisions of the Connecticut Workmen's Compensation Act will not be deducted. Also, in computing length of service for the purpose of seniority, time lost for the following reasons shall be considered as time served:
Employees laid off will be placed on a recall list in the order of their Company continuous service. When jobs are available in a department from which regular employees have been permanently laid off, or in a department having similar jobs, regular employees on the recall list will be recalled in inverse order of layoff provided they have the ability to perform the jobs available * * *.