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October 15, 1946


The opinion of the court was delivered by: KENNEDY

In this action the plaintiff seeks damages in the amount of $ 501.60 under section 8, subd. (e), of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 308, subd. (e).

Prior to August 21, 1942 plaintiff was employed by the defendant as a bus operator. On that day he enlisted for training and service in the United States Coast Guard. He was honorably discharged on July 14, 1945. He allowed 89 of the 90 days mentioned in the statute to go by before he applied on October 11, 1945 to the defendant for reinstatement. On October 12, 1945 plaintiff worked 2 1/2 hours on what is called a 'trip' (an irregular and isolated run), and then decided to take a vacation for two weeks. On October 24, 1945 plaintiff returned to the defendant's property, and there ensued a discussion between him and defendant's superintendent, who suggested that plaintiff wait until the 'next regular selection of runs' (this would take place in January 1946) and offered plaintiff meanwhile the No. 1 position on the 'extra list.' This needs explanation.

 Under its contract with the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division No. 1056, defendant is bound to post schedules of runs for picks four times in each year (January, April, June and September) unless otherwise agreed between the companies and the union. Plaintiff, by the way, is and was a member of the union, is fully cognizant of the provisions of the contract, and actively participated in union meetings. The contract provision which I have paraphrased was undoubtedly evolved primarily to serve the convenience of the union and its members. Defendant has some 220 bus drivers in its employ and it is easy to see that the simplest way to respect seniority rights, and at the same time give maximum convenience to the driver-employees, is to distribute 'runs' reasonably often, but not too often. Perhaps I can clarify this.

 Some 'runs' are more desirable than others. Naturally a driver who operates his bus from 6:00 o'clock in the morning until 2:00 in the afternoon, without any 'swings', or waiting time, and whose work is on weekdays only, has a desirable run. On the other hand, night operation, Sunday work, and runs which, though consuming a total of only the regulation number of hours, are broken up by intervals of waiting are undesirable. The union has a seniority list (plaintiff's number was 21) and it is only understandable that under its rules the men with greatest seniority have the first selection of runs.

 But seniority changes when death, resignation, or other severance from the service occurs. Seniority status also changes when, as here, veterans return from the service. And in the last instance mentioned, which is the case at bar, if runs must be readjusted every time a veteran returns, particularly where the returned employee enjoys high seniority, a succession of changes may be made necessary. The result will be that the man with greater seniority will or may deprive the driver with less seniority of the run which the latter was operating. This process is called 'bumping'. And the record makes it clear that the union of which plaintiff is and was a member was not in favor of indiscriminate 'bumping' each time the seniority status changed. *fn1" To meet the difficulty, as I have said, the contract between the union and the company provides for a maximum number of four redistributions of runs in any year, unless the union and the company agree to more

 This should make clear the dilemma in which the defendant was placed when on October 24, 1945 plaintiff returned and demanded exactly the same run as that which he had operated in 1942, so far as seniority of selection is concerned. To deny him this seniority might be to run foul of the statute. 50 U.S.C.A.Appendix, § 308, subd. (e). To grant it would be to run foul of the union contract.

 Under these circumstances defendant on October 24, 1945, in perfect good faith and without any intention to violate the statute, suggested to the plaintiff that he would be given a position at the top of the 'extra list' until the next scheduled pick of runs (which actually occurred in January 1946), at which time plaintiff could select his work in strict accordance with his seniority position. This would avoid any possible difficulty with the union or violation of the contract. But plaintiff verbally refused to take anything less than a run to which he would be entitled strictly according to seniority, a position which he later confirmed to the company by telegram dated October 27, 1945.

 As it turned out, if plaintiff had accepted the defendant's suggestion he would have suffered no money loss *fn2" and hardly any inconvenience, because, as it turned out, continuously from October 24, 1945 to January 5, 1946 the top man on the extra list was in a situation to select runs quite similar to that which plaintiff had operated before he entered the service. *fn3"

 On November 1, 1945 defendant notified plaintiff that unless he returned he would be discharged, and on November 7, 1945 he was given notice of his 'discharge', whereupon he complained to the Selective Service Headquarters. A period of negotiation followed. On January 2, 1946, at the time of the regularly scheduled pick of runs, plaintiff returned, was permitted to select a run in accordance with his seniority, and resumed work on January 7, 1946. This was just prior to the commencement of the lawsuit.

 At the time of the trial I had some doubt whether, on familiar principles, there was jurisdiction to award relief in the way of damages when the returned veteran, prior to the commencement of the action, has in fact been reinstated. This doubt was removed by the opinion of Judge Swinford in Hall v. Union Light, Heat & Power Co., D.C.E.D. Kentucky, Covington Division, 1944, 53 F.Supp. 817. I turn now to the questions which I think are here for decision.

 Did the defendant in this case on October 24, 1945 tender to the plaintiff a position of 'seniority, status and pay' similar to that occupied by him when he entered the service?

 The defendant argues that if the plaintiff had accepted the suggestion made by it on October 24, 1945, he would have suffered no money loss and would have worked substantially the same hours as he did just prior to August 21, 1942, the day of his enlistment. I have found as a fact that this was so in the findings which accompany this memorandum. Indeed it can scarcely be the subject of dispute. Plaintiff argues he could not have foreseen this, and even it he could have, there is still a substantial difference under the statute between the tender of a position on the extra list, and restoration to the regular seniority list.

 If I were not dealing with a statute like this one (50 U.S.C.A.Appendix, 301 et seq.), I would unhesitatingly decide the issue in defendant's favor. But the Supreme Court says that each provision of the statute must be given 'as liberal a construction for the benefit of the veteran as a harmonious interplay of the separate provisions permits' and that 'these provisions guarantee the veteran against loss of position or loss of seniority by reason of his absence'. Fishgold v. Sullivan Dry Dock & Repair Corporation, 1946, 328 U.S. 275, 66 S. Ct. 1105. It is perfectly obvious that in circumstances like those in the cause at bar the statute operates in a very inequitable manner. As the defendant observes, it puts this plaintiff in a position where he, as a returned veteran, must be satisfied regardless of how adversely his action affects everyone else, even co-members of his own union, and possibly other returned veterans junior to him. But if hardship in operation is to be a reason for depriving the veteran of seniority in its widest and fullest sense, then it is only a question of time before the statute becomes a dead letter. And so I reach the conclusion that however trifling the difference between what plaintiff formerly had in the way of seniority and what defendant tendered him for a short period, the plaintiff is under the law justified in the position he took on October 24, 1945.

 Was the defendant, on October 24, 1945, within the exception of the statute (50 U.S.C.A.Appendix, § 308 subd. (b) (B) making it inapplicable where 'the employer's circumstances have so changed as to make it impossible or unreasonable' to restore the returned ...

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