The opinion of the court was delivered by: TYLER
Plaintiff James J. Hatton, a veteran of the armed forces of the United States, sues to recover the stipulated amount of $248.70 allegedly due him from defendant The Tabard Press Corporation ("Tabard"), a printing firm, pursuant to Section 9 of the Universal Military Training and Service Act, 50 U.S.C. App. § 459. On June 27, 1966, cross-motions for summary judgment were denied by Judge Edelstein of this court, 255 F. Supp. 468. Subsequently, on March 3, 1967, the case was tried before me without a jury. The following discussion embodies the findings of fact and conclusions of law of that one-day trial.
The chronology of relevant events is undisputed. Hatton was employed by Tabard on January 25, 1960. For a year, plaintiff's duties were menial and included such tasks as the carrying of proofs, papers and packages to and from customers. A year later, on or about January 25, 1961, he became a "miscellaneous composing room employee" whose work involved messenger duties, sorting and putting away furniture, cuts and plates, operating the proof press, and pulling proof from the presses for "readers" of clients. Hatton performed these duties for about a year and then, on January 25, 1962, entered the military service.
At the time when Hatton left Tabard, he was not and had not been a member of any labor union and, consequently, his rights as an employee were not covered by any collective bargaining agreement. On November 24, 1963, while Hatton was in the armed services, the New York Typographical Union No. 6 ("Local No. 6"), as agent for Printing Utilities Branch of Local No. 6 ("Utilities Branch"), and the Printers League Section, Printing Industries of Metropolitan New York, Inc. ("League"), as representative for various printing firms, of which Tabard was one, entered into a collective bargaining agreement, hereinafter called the "Utilities Branch-League agreement". This agreement, in Section 4, established specific wage rates, based upon "experience", for employees in the position occupied by plaintiff before he entered the armed forces. This agreement contained only a few other substantive provisions in addition to the one relating to wages. Therefore, in order to more fully define the status of Utilities Branch employees, Section 8 of the agreement incorporated by reference a separate and more expansive collective bargaining agreement, entered into on the same day, between Local No. 6, acting in its own behalf, and the League. This second agreement is hereinafter referred to as the "Local No. 6-League agreement".
Hatton was honorably discharged from the armed services on December 19, 1963. He had acquired no printing experience while in the military. On or about February 2, 1964, he was restored by defendant as a miscellaneous composing room employee on the night shift at a weekly wage of $59.34, the rate received pursuant to the Utilities Branch-League agreement by an employee with less than one year's "experience".
On or about March 1, 1964, Hatton became a member of the Printing Utilities Branch of Local No. 6. On March 19, 1964, his weekly wage was raised to $66.75, retroactive to February 2, 1964. This was the rate paid to an employee with more than one but less than two years' experience. Presumably, therefore, plaintiff received an increase because, counting time served before his military service, he had worked for a year as a miscellaneous composing room employee as of February 2, 1964.
On May 23, 1964, plaintiff was notified that he would be laid off by Tabard because of lack of work and, on May 29, 1964, he was laid off. He has not been employed by Tabard as a miscellaneous composing room employee since that date.
II. Tabard's Promotion System
Section 4 of the Utilities Branch-League collective bargaining agreement structures the minimum wage scales for miscellaneous composing room employees. Such wage scales are predicated upon an employee's "experience", but nowhere in either the Utilities Branch-League agreement or the Local No. 6-League agreement is the term "experience" defined.
"Experience" for wage purposes should be distinguished from the term "priority standing", found in Section 45 of the Local No. 6-League agreement, which is incorporated into the Utilities Branch-League agreement by Section 8 of the latter. Section 45 provides, inter alia, as follows:
"The priority standing of employees shall be determined in accordance with the records maintained by the chapel chairman. Priority standing of an employee shall date from time of employment."
An examination of the whole of Section 45 indicates that an employee's "priority standing" assumes significance for purposes of lay-offs and discharges when there is a lack of work within an individual printing firm. There is no indication that the concept plays any role in determining whether or not an employee such as Hatton has gained the requisite "experience" for wage purposes. Accordingly, "experience" cannot be properly analyzed in terms of "priority standing".
The foregoing discussion and the absence of any specific definition of "experience" require the conclusion that Tabard's system of promoting miscellaneous composing room employees cannot be adequately explained by examining the two collective bargaining agreements involved in this case. This does not, however, foreclose a rational analysis of the problem, for defendant's promotion policies have been explained fully in a deposition of the defendant, taken through ...