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September 14, 1976


The opinion of the court was delivered by: CONNER


 In order to mitigate the hardships visited upon those who are called to serve in the Armed Forces, Congress enacted 38 U.S.C. § 2021 (Section 2021), *fn1" which, inter alia, requires employers to restore returning veterans to positions of seniority, status and pay equivalent to that which they would have enjoyed had their employment not been interrupted. Alleging that defendant Pandick Press, Inc. (Pandick) failed to accord him the veteran's reemployment rights to which he claims entitlement, on February 20, 1975 plaintiff Harold Steven Chernoff (Chernoff) commenced this action pursuant to the provisions of Section 2021 and its jurisdictional counterpart, 38 U.S.C. § 2022. *fn2" Chernoff seeks a judgment (1) declaring that Pandick violated Section 2021, (2) ordering his reemployment with retroactive adjustment of his seniority date and (3) ordering Pandick to compensate him for any lost wages and benefits. In resisting Chernoff's claims, Pandick relies essentially upon two arguments. First, asserting that the status to which Chernoff claims entitlement is dependent upon managerial choice, rather than merely upon seniority, Pandick claims that decisions such as McKinney v. Missouri-Kansas-Texas R.R. Co., 357 U.S. 265, 78 S. Ct. 1222, 2 L. Ed. 2d 1305 (1958), place this case without the scope of Section 2021. In the alternative, Pandick claims that, despite the provisions of Section 2021, under an applicable collective bargaining agreement it is powerless to grant Chernoff a more favorable seniority date or to adjust his status in any other respect.

 Although many of the relevant facts are undisputed, in order to facilitate an understanding of the legal discussion which will follow, a detailed recitation of the facts is appropriate. This opinion incorporates the Court's findings of fact and conclusions of law pursuant to Rule 52(a) F.R.Civ.P.


 Pandick is a large, well-known printing firm located at 345 Hudson Street, New York, New York, within the Southern District of New York (Joint Exhibit [JX] 1, para. 1). On September 17, 1966, Chernoff was hired to work as a "floor boy," the most junior position on Pandick's cylinder press crews. In due course, on November 23, 1966, Chernoff became a member of the New York Printing Press Assistants and Offset Workers Union No. 23 (the Union), which at all relevant times was, and still is, the collective bargaining agent for Pandick's employees.

 In addition to floor boys, Pandick's cylinder press crews include, in ascending order of experience and responsibility, "fly boys," "tenders," "operators" and "pressmen." Floor boys, fly boys and tenders are collectively referred to as "utility workers." (Tr. 123-25). Operators and pressmen, after completion of their applicable apprenticeships, are titled "journeymen."

 There is no formal course of instruction in the operation of a cylinder press. Nor is a specific test administered to determine one's ability to carry out any of the tasks required of a cylinder press crewman. Ordinarily, an individual is employed initially, as was Chernoff, in the unskilled position of floor boy and, if capable, will advance to the higher paying, more responsible positions. Chernoff's work was satisfactory and on December 12, 1966 and January 23, 1967 he received promotions, first to fly boy and later to tender.

 In mid-February 1968, while a tender, Chernoff was assigned to work as a "temporary operator." A temporary operator performs the duties of an operator when, for some reason, the regular operator is absent, creating a short-term need for a substitute (Tr. 78-79, 38-39). This did not constitute a promotion, but rather, as the name suggests, was merely a temporary, out-of-title assignment which could not be expected to last for more than a few weeks. Although a utility worker temporarily assigned to function as an operator is paid as an operator while filling that position, once the regular returns, the temporary is restored to his original job and pay scale.

 Where a permanent vacancy arises, it cannot be filled by a temporary. The employer, in this case Pandick, can either request the Union to furnish a journeyman operator to fill the position or, as was the practice at Pandick, the employer can upgrade a utility worker to apprentice operator.

 Pandick urges that it possesses broad discretionary powers in determining which utility worker will be promoted to apprentice operator, but the evidence belies that assertion. Although Pandick could elect to pass over a utility worker whom it considers to be "incompetent," in practice the utility worker with the greatest seniority is routinely offered the promotion first. In fact, the Court has not been apprised of a single instance in which Pandick did not thus follow seniority.

 Once the decision is made to upgrade a utility worker, it is the responsibility of the employer, not the employee, to notify the Union of this fact so that the employee can be registered with the Union as an apprentice operator (JX-1, para. 20; Tr. 128, 176-77). The Union then conducts an investigation to determine whether there are any objections (e.g., a fellow employee's claim of discrimination) to the proposed upgrading (Tr. 128). If there are no objections, the employee will be registered as a matter of course (JX-1, para. 20).

 The apprenticeship lasts for a nominal period of 2-1/2 years (JX-1, para. 17(a)), which may be, and often is, shortened by the employer (JX-1, para. 17(a), 23; Tr. 129, 168-69). During the first six months of the apprenticeship, the apprentice may be discharged if found to be incapable (JX-1, para. 17(b)). However, after that initial period, completion of the apprenticeship and promotion to journeyman operator is assured (JX-1, para. 23; Tr. 133).

 Apprentice operators working for a particular shop will ordinarily be upgraded to journeymen in the order in which they were registered as apprentices (Tr. 141, 170, 172). However, in the event that an apprentice operator is, for any reason, upgraded to journeyman after an employee whose apprenticeship commenced later than his, for the purpose of seniority the dates of their registration as apprentice operators are determinative. (JX-1, para. 24; Tr. 141, 172-73).

 Chernoff claims that after he had worked as a temporary operator for a week or so, Austin Gauthier, Pandick's night shift foreman, offered him a promotion to apprentice operator. Chernoff testified that he accepted the promotion (Tr. 11) and was thereafter paid as an apprentice operator (PX-11, p.7; Tr. 13). Chernoff, however, concedes that he made no effort to determine whether he was registered with the Union as an apprentice (Tr. 12); he claims that he was not even aware of the registration process (Tr. 12).

 On April 5, 1968, Chernoff left Pandick to enter military service (JX-1, para. 6), which continued until his honorable discharge on November 7, 1969 (JX-1, para. 7). While Chernoff was in service, two of his co-workers, Richard Santapola and Stephen Cottonaro, were promoted to apprentice operator and promptly so registered with the Union (JX-1, para. 9). Santapola was registered as an apprentice on July 26, 1968 and as a journeyman on August 8, 1969. Cottonaro was registered as an apprentice on October 30, 1969 and as a journeyman on November 6, 1970.

 In early January 1970, after his discharge from the Marine Corps, Chernoff sought reemployment at Pandick. He was rehired and assigned to work as an apprentice operator (JX-1, para. 8). He was paid at the scale of an apprentice operator in his third six-month period of such apprenticeship (JX-1, para. 8). Pandick's records indicate that Chernoff was assigned to replace an employee by the name of Frank Vistocci, who was permanently leaving Pandick's employ (PX-11, p.8; JX-1, para. 8).

 In early March 1970, Pandick's general foreman, Carmine Cuomo (Cuomo), called John Siliato, president of the Union, to obtain information regarding Chernoff, Santopola and Cottonaro for the purpose of determining their relative seniority in the event of a layoff. Siliato referred the matter to the Union's secretary-treasurer, Thomas Donahue (Donahue), who, after checking the Union records, informed Cuomo that Chernoff need not be considered in any computation of relative apprentice operator seniority; Chernoff, it seems, had never been registered with the Union as an apprentice operator and was still being carried on the Union's records as a tender.

 According to Donahue, Cuomo reacted to this disclosure with surprise, stating that Chernoff had been working, and was being paid, as an apprentice operator for some time and that he, Cuomo, would forthwith forward a letter to the ...

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