Moore, Friendly and Feinberg, Circuit Judges.
The reemployment rights of veterans have not been litigated frequently in this court, but when such cases do arise decision may be difficult.*fn1 This appeal is a good example, posing knotty issues on deceptively simple facts. Plaintiff James Hatton sues his former employer, The Tabard Press Corporation, for denial of reemployment benefits under section 9 of the Universal Military Training and Service Act, 50 U.S.C. App. § 459. After a trial without a jury before Judge Harold H. Tyler, Jr., in the United States District Court for the Southern District of New York, the district court dismissed the complaint and entered judgment for the defendant, 267 F. Supp. 447 (1967). For reasons set forth below, we reverse.
In January 1960, plaintiff was employed by defendant as a messenger. He worked in this capacity until January 1961, when he was promoted to the job of "miscellaneous composing room employee." About a year later, plaintiff left his position with defendant because he was inducted into the armed forces. In November 1963, shortly before plaintiff was honorably discharged from military service, defendant entered into a collective bargaining agreement with New York Typographical Union No. 6, which, for the first time, covered miscellaneous composing room employees. The agreement fixed an ascending minimum wage scale for such employees according to their years of "experience" -- a term left undefined by the agreement.*fn2
In February 1964, plaintiff returned to his job as a miscellaneous composing room employee. He was initially paid by defendant at the rate for employees with less than one year of experience. After approximately one month, however, his pay was increased, as of the date of his reemployment, to the rate for employees with more than one but less than two years of experience. This increase took into account plaintiff's pre-induction employment with defendant; however, despite his protests, plaintiff was not similarly credited with the time served in the armed forces, which would have placed him in the higher pay category of employees with more than three but less than four years of experience. In May 1964, plaintiff was laid off for lack of work. Plaintiff claims that he was underpaid by $248.70 -- the difference between the amount allegedly due him at the higher rate and the amount he was actually paid. After efforts by the Department of Labor on plaintiff's behalf to settle the dispute were unsuccessful, plaintiff filed suit with the aid of the United States Attorney.*fn3
The statutory provisions relied on by plaintiff were first enacted in substantial part in 1940; they are designed to protect reemployment rights of veterans on the sound principle that a man "called to the colors [is] not to be penalized on his return by reason of his absence from his civilian job." Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284, 90 L. Ed. 1230, 66 S. Ct. 1105 (1946). In relevant part, the statute provides, 50 U.S.C. App. § 459(b), that if a person leaves a position to perform military service and, thereafter, as a veteran, makes timely application for reemployment:
(B) if such position was in the employ of a private employer, such person shall --
(i) if still qualified to perform the duties of such position, be restored by such employer or his successor in interest to such position or to a position of like seniority, status, and pay . . . .
The statute further provides, 50 U.S.C. App. § 459(c)(2):
It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph . . . (B) of subsection (b) should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.*fn4
The key words of these sections, e.g., "like seniority, status, and pay" and "such status," are general terms undefined elsewhere in the statute. Supreme Court decisions, however, have fleshed out their content and elaborate the criteria for decision here. In Tilton v. Missouri Pacific R.R., 376 U.S. 169, 179, 11 L. Ed. 2d 590, 84 S. Ct. 595 (1964), the Court indicated that a crucial issue in this type of case is whether "advancement depends essentially upon continuing employment" or whether "the exercise of management discretion [is] a prerequisite to promotion."*fn5 As an example of the latter, the Court pointed to McKinney v. Missouri-Kansas-Texas R.R., 357 U.S. 265, 78 S. Ct. 1222, 2 L. Ed. 2d 1305 (1958). In that case, the applicable collective bargaining agreement provided for bidding on new or vacant jobs, but promotion thereto was explicitly dependent not "simply on seniority" but also on "fitness and ability and the exercise of a discriminating managerial choice." 357 U.S. at 272. Accordingly, a returning veteran was not entitled to promotion to a job falling vacant in his absence unless he could prove that "in actual practice under the collective bargaining agreement advancement . . . is automatic." Id. at 274. In Tilton, the Court explained further what "automatic advancement" means, 376 U.S. at 180-81:
It would be virtually impossible for a veteran to show . . . that it was absolutely certain, "as a matter of foresight" when he entered military service, that all circumstances essential to obtaining an advancement in status would later occur. To exact such certainty as a condition for insuring a veteran's seniority rights would render these statutorily protected rights without real meaning. As Benjamin Franklin observed, "In this world nothing is certain but death and taxes." In every veteran seniority case the possibility exists that work of the particular type might not have been available; that the veteran would not have worked satisfactorily during the period of his absence ; that he might not have elected to accept the higher position; or that sickness might have prevented him from continuing his employment. In light of the purpose and history of this statute, however, we cannot assume that Congress intended possibilities of this sort to defeat the veteran's seniority rights.
Turning again to the facts of this case, we find the following. Under the terms of the collective bargaining agreement, miscellaneous composing room employees were essentially general assistants who formed a pool from which apprentice printers might be chosen. Plaintiff's duties in his job were described by Nathan Sorkin, defendant's president:
He would run errands, as they all do to some degree; he would empty wastebaskets, he would clean up the debris and the shavings of the linotype metal; he would bring proof paper to the proof press; he would run from the composing room to the rest of the plant; he would occasionally do a little proof pulling type; he would clean and oil the ...