The opinion of the court was delivered by: GALSTON
At the trial on motion these actions were consolidated because the facts in general are similar and the same principles of law apply.
The actions are brought by the petitioners pursuant to Sec. 8, subdivision (e), of the Selective Training and Service Act of 1940, Sec. 308(e), Title 50, Appendix, U.S.C.A. Each petitioner seeks re-employment with the defendant and judgment against the defendant for loss of wages from the date of the alleged unlawful discharge to a date of restoration to the positions theretofore held by such petitioners or like positions.
The provisions of the Selective Training and Service Act of 1940 which are relevant to this matter are found in the margin.
The parties are essentially agreed to respect to pivotal facts. Gualtieri was hired by respondent as an electrician's helper on December 3, 1940. He was employed in the electrical maintenance department until his induction into the Army of the United States on August 8, 1943. At that time he held the position of second class electrician, and was paid at the rate of 85 cents an hour. Ward entered the defendant's employ as an electrician's helper on June 10, 1941 and served in the electrical maintenance department until his induction into the Army on September 24, 1943. At that time he held the position of second class electrician, and was paid at the rate of 85 cents an hour. Peterson also was employed as an electrician's helper. He employed as an electrician's helper. He entered service on July 7, 1942 and served therein until his induction into the Naval Reserve on August At that time he held the position of third class electrician, and was paid at the rate of 85 cents an hour.
During the month of December, 1945, the petitioners were honorably discharged from the armed services of the United States.
It appears that during the period of petitioners' service in the armed forces, second class mechanics in the respondent's electrical maintenance department were reclassified and were designated as fourth year electricians. The rate of pay was $ 1 an hour, retroactive to January 15, 1943. The petitioners received notice of such change in employment status and payment representing the retroactive wage increases.
Gualtieri applied for re-employment on December 10, 1945. He was re-employed during the first week of January, 1946, in the position of fourth ear electrician in the electrical maintenance department. The prevailing rate of wage then for such employee was $ 1.18 per hour. Ward applied and was re-employed on or about January 28, 1946, in the same classification at the same rate of ay. Peterson was re-employed on January 25, 1946, similarly classified, and received the same rate of pay.
On or about February 13, 1946, the petitioners were laid off by the respondent because of lack of work in the electrical maintenance department. It is important to note that such lay off was made by the respondent in what it deemed to be the requirements of the seniority provisions of the collective bargaining agreement between respondent and Local No. 3 of the International Brotherhood of Electrical Workers. A. F. L., entered into during May, 1943. That agreement among other matters provided that:
'A. Seniority shall be reckoned from the date of employment in the appripriate bargaining unit.
'B. The following factor shall be considered in the event of increase or decrease in the number of employees:
'2. Knowledge and ability in performing the work involved.'
To present a full picture of respondent's defense in support of the lay off of these petitioners, it becomes necessary to recite something concerning the history of the respondent in respect to the number of its employees, and the plants operated by the respondent, particularly during the period beginning January, 1940. As the result of war orders accepted by the respondent, it added to plant space various buildings in Brooklyn and in Nassau County. It is estimated that the expanded facilities totalled some four million square feet of space. At the same time in January, 1940, the number of persons employed by respondent was 3, 345. That number was rapidly increased. A year later the respondent had 5,582 employees. In June, 1941, there were 7,563 employees and in July, 1942, 18,346. The high mark of employment was reached in July, 1943, when 32,072 were employed.
During this period, the number of electricians in the electrical maintenance department increased from about 100 in ...