(dissenting).
For the reasons persuasively set forth in Judge Palmieri’s careful and thorough opinion, reported at 185 F.Supp. 441, I would affirm.
It is immaterial to the resolution of the question before us that the employment of competent and satisfactory employees is suddenly terminated, or even that the employer has acted ungenerously, as indeed it has. 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.
The parties have assumed here that the Supreme Court’s decision in Textile Workers Union v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, did not sub silentio overrule the distinction between “individual” and “union” rights announced in Association of Westinghouse Salaried Employees v. Westinghouse Elec. Co., 1955, 348 U.S. 437, 461, 75 S.Ct. 488, 99 L.Ed. 510. Although the survival of this distinction gives the employees standing personally to assert “individual” rights arising out of a collective-bargaining agreement, Local Lodge 2040 Intern. Ass’n of Machinists A.F.L.C.I.O. v. Servel, Inc., 7 Cir., 268 F.2d 692, 696, certiorari denied, 1959, 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120; the contract should be construed in light of federal substantive law pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185.
The federal cases hold that seniority is not inherent in the employment relationship but arises out of the contract. E. g., Elder v. New York Central R. R., 6 Cir., 1945, 152 F.2d 361, 364; see Note, 54.Nw. U.L.Rev. 646, 649-50 (1959). If rights are to persist beyond the term of the collective-bargaining agreement, the agreement must so provide or be susceptible of such construction. See United Steelworkers v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424.
The agreement we are here called upon to interpret did not expressly provide for any retention of seniority rights beyond the termination of the collective-bargaining agreement. The employees claim, however, that by agreeing to rehire on the basis of seniority for two or three years after layoff, the employer undertook not only to retain seniority rights after the expiration of the agreement but to extend existing seniority privileges to any other location to which the work then done at Elmhurst would be assigned. Relocation of an employer’s plant does not, of course, automatically terminate all rights under a collective-bargaining agreement; whether such rights continue depends on the terms of the contract. See Metal Polishers, Buffers, Platers, and Helpers Intern. Union, Local 44 A.F.L.C.I.O. v. Viking Equipment Co., 3 Cir., 1960, 278 F.2d 142. The issue here is whether this collective-bargaining agreement gave the employees the right to “follow the work” to the new site. I would hold that it did not.
The closing of the Elmhurst plant and the removal of the defendant’s operations to a new location were concededly done in good faith and were not wholly unforeseeable. As Judge Palmieri points out, it is not uncommon for the parties to extend beyond a single plant the area in which seniority rights are to apply. Surely unions are now fully of age and are able to protect themselves and their members at the bargaining table. The consequences of dismissing the plaintiffs’ case might indeed be unfortunate and even “catastrophic” from their point of view, but it is hardly “irrational and destructive” for a court to leave the parties as they are if they have never seen fit to provide otherwise.