Charland v. Norge Division, Borg-Warner Corporation

• Decision Date: 26 May 1969
• Docket Number: No. 18506.,18506.
• Citation: 407 F.2d 1062
• Parties: Leo W. CHARLAND, Plaintiff-Appellant, v. NORGE DIVISION, BORG-WARNER CORPORATION and Allied Industrial Workers of America, AFL-CIO, Muskegon Heights, Michigan, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

407 F.2d 1062 (1969)

Leo W. CHARLAND, Plaintiff-Appellant, v. NORGE DIVISION, BORG-WARNER CORPORATION and Allied Industrial Workers of America, AFL-CIO, Muskegon Heights, Michigan, Defendants-Appellees.

No. 18506.

United States Court of Appeals Sixth Circuit.

February 21, 1969.

Certiorari Denied May 26, 1969.

Leo W. Charland, Muskegon Heights, Mich., pro se.

Donald J. Veldman and Jerry S. McCroskey, Muskegon, Mich., for appellees. Richard A. Robb, Muskegon, Mich., on the brief, Hathaway, Latimer, Clink & Robb, Muskegon, Mich., of counsel.

Before O'SULLIVAN, EDWARDS and COMBS, Circuit Judges.

Certiorari Denied May 26, 1969. See 89 S.Ct. 1786.

EDWARDS, Circuit Judge.

Plaintiff Charland worked for Norge at its Muskegon Heights plant for 30 years. He was 55 years old in 1961 when Norge decided to move out of Muskegon Heights to Fort Smith, Arkansas. In 1961 the Norge Muskegon Heights plant had a union contract which provided seniority for the employees of "the Norge Division, Muskegon Heights plant." The contract contained no plant removal clause. The union¹ negotiated a removal agreement which retained certain pension rights for employees over 60 and minor lump sum benefits for those, like Charland, under 60. It also provided very limited removal rights to Fort Smith, where local employees were to be hired first. The removal agreement in positive language purported to terminate all seniority and pension rights and claims of the former Muskegon Heights employees.

Five years and 11 months after his job was terminated, plaintiff Charland filed a complaint under § 301 of the National Labor Relations Act, 29 U.S.C. § 185 (1964), asserting that he had a property right in his job (by contract and the United States Constitution) which the union failed to protect. A United States District Judge in the Western District of Michigan dismissed the complaint, holding in effect as to defendant Norge that appellant had no such property right, and as to defendant union that the complaint stated no cause for action.

In Oddie v. Ross Gear & Tool Co., 305 F.2d 143 (6th Cir. 1962), this court decided the fundamental legal issue by squarely rejecting "the contention that plaintiffs' seniority rights at the Detroit plant are `vested' rights, which cannot be cut off or defeated by the relocation of the plant in Tennessee." Supra at 149.

The Second Circuit, sitting en banc, has now taken the same position in a recent decision, Local 1251, International Union of United Automobile, Aircraft, etc., UAW v. Robertshaw Controls Co., 405 F.2d 29 (2d Cir. 1968). This case expressly overruled a decision upon which appellant had relied, 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). It held:

"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.\'" Local 1251, International Union of United Automobile Aircraft, etc., UAW v. Robertshaw Controls Co., supra at 33.

Even more important from the point of view of this court is the fact that the United States Supreme Court has thus far treated seniority rights as arising exclusively from the labor-management contract. Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). See also Cortez v. Ford Motor Co., 349 Mich. 108, 84 N.W.2d 523 (1957).

If, as these cases hold, claims to job rights arise only from the collective bargaining contract, then appellant's claims herein are limited strictly to the terms of the original contract and the August 21, 1961, Termination Agreement. We can conceive of no way by which the District Judge could have construed any contract language to provide any relief for appellant, other than the very limited removal rights or pension termination benefits which he has thus far rejected. Nor, like the District Judge, can we find any statement of facts in appellant's complaint which may be construed as stating a cause of action against the defendant union on grounds of unfair representation. The undisputed facts before the District Judge on the motion for summary judgment indicated the weakness of the union's bargaining position under the law as it stood in 1961 and stands now.

Appellant's cause has been filed and...