77 F. Supp. 359 | S.D.W. Va | 1948
Petitioner has brought this action to secure reinstatement to his former position as a brakeman with the railway company under Section 8(e) of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 308(e). The single issue is one of fact. Did petitioner leave his position to perform training and service in the armed forces?
From the agreed statement of facts and oral evidence, the following facts appear: On July 21, 1942, petitioner was temporarily rejected by his local draft board for physical reasons, and placed in Class 1A-R by his Local Board in Huntington, W. Va., which classification meant that he was held in reserve for further examination. On March 9, 1943, he was inducted into the Navy, but was discharged March 23, 1943, on account of physical disability. On November 30, 1943, he entered employment with respondent as a laborer and was later upgraded and established seniority as a yard brakeman. After being discharged from the Navy he remained, for Selective Service purposes, in Class 1C (discharged). Desiring to get back into the military service, and feeling that he was physically fit for such service, he subsequently requested that he be placed in Class 1A, and on July 21, 1944, he was reclassified by his Local Board and placed in Class 1A. On March 29, 1945, he was ordered to report for “preinduction physical examination” on April 9, 1945. He received this notice when he went home from work on March 30. He did not again report for work. He says he ceased his employment “because I was going into the armed services.” He had some business he wanted to look after. His father and mother were separated and he wanted to visit both of them before leaving. His brother who was then home had spent five years in the service without a furlough. He felt that if he passed his physical examination on April 9, he “could expect to be called at any time.” He had
On May 3, 1945, petitioner was ordered by his Local Board to report for induction on May 14, at which time and place he appeared, but because his records were incomplete he was sent home with advice that he would be called later. Petitioner expected to be called most any day. Accordingly, on June 4, 1945, he was notified to report for induction on June 15, 1945, when he was actually inducted into the U. S. Marine Corps and sent to Paris Island, S. C., for duty, from which place he was honorably discharged from service, for physical reasons, on August 11, 1945. He applied for and was reinstated in his old position with defendant on September 1, 1945, with full seniority. But upon objection made by the local railroad union on October 20, 1945, respondent removed petitioner from service as a brakeman and removed his name from the seniority roster. It was claimed that petitioner had forfeited his seniority as a yard brakeman by reason of failure to comply with Rule 25 of the Yardmen’s Agreement, namely, being absent from duty without leave for more than 60 days prior to his induction into military service on June 15, 1945, as contracted and provided for in collective bargaining agreement between the railway company and the union, of which petitioner was a member. Such agreement provides in substance that yardmen will not be granted a leave of absence for more than 60 days without the written consent of the company and the union.
Respondent contends that these facts show that petitioner did not leave his job to go into military service; that at the time he was actually inducted into service (June 15, 1945) he had lost his job by
It is, of course, true that some 10 days elapsed between the time that he left his employment and the date he was accepted for military service, but this is even a shorter time than would elapse in the average case of one who was leaving his employment to enlist in the service. The wise thing for him to have done would have been to write a letter to his employer, saving a copy thereof, setting forth the reason he did not report for work. However, there is nothing in the law requiring any such notice to the employer. He is entitled to the reemployment benefits of the act if he left his employment to enter the military service. He did notify his employer of his intentions about April 15.
It is also quite significant that his employer recognized his rights under the act by full reinstatement immediately upon his discharge. It was not until after the union made protest and called attention to the existing union agreement that he was discharged. This agreement in no way affected petitioner’s right to reinstatement. Rudisill v. C. & O. Ry. Co., 4 Cir., 175 F.Zd 167. In Fishgold v. Sullivan Corp., 328 U.S. 275, 285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230, 167 A.L.R. 110, the Supreme Court said: “This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need. See Boone v. Lightner, 319 U.S. 561, 575, 63 S.Ct. 1223, 1231, 87 L.Ed. 1587. And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act. Our problem is to construe the separate provisions of the Act as parts of an organic whole and give each as liberal a construction for the benefit of the veteran as a harmonious interplay of the separate provisions permits.” Therefore, this case must stand or fall upon the question of whether petitioner quit work for the purpose of entering the military service, or for some other purpose. If that was the reason he did not report for duty after March 30, then he is entitled to reinstatement, as Congress has provided, notwithstanding any provisions of any contract between the employer and the union relating to notice to the employer or to the union, or relating to the manner of taking a leave of absence. Bryant v. Brotherhood of Railroad Trainmen, D.C., 74 F. Supp. 510; Trailmobile Co. v. Whirls, 6 Cir., 1946, 154 F.2d 866. In fact defendant was actually accepted for military service 10 days after he quit work and well within the 60 days’ period mentioned in the agree
Petitioner waited from October 20, 1945, when he was discharged, to April 3, 1947, a period of about 18 months, before filing this action. Because of this unreasonable delay he should be allowed compensation only from April 3, 1947. See Thompson v. C. & O. Ry. Co., 76 F.Supp. 304, and cases there cited.
Petitioner is entitled to be reinstated to his former position as brakeman with no reduction in seniority. In addition he is entitled to receive compensation which he would have earned if reemployed in his old position but only for the period beginning April 3, 1947, the date of the institution of this action, less what petitioner has earned during this same period in other employment. The parties will make the computation as to damages and insert the same in an appropriate order for entry.