211 F. Supp. 567 | S.D.N.Y. | 1962
This is an action by six plaintiffs-brought on their behalf by the United' States Attorney under the provisions of' the Selective Training and Service Act of 1940, as amended,
The plaintiffs seek relief pursuant to section 8 of the Act,
Prior to military service in World War II, plaintiffs were employed in the baggage department of the defendant. Until May 1, 1942 their seniority and promotion rights were governed by a collective bargaining agreement in effect since February 16, 1935. Their job classification came within a group designated in that agreement as “Miscellaneous Forces,” with seniority as of the date of entry in the service of the railroad. A separate agreement governed the seniority and promotion rights of the group of employees known as “Clerks.” In general, Miscellaneous Forces’ positions related to baggage work, whereas Clerks’ positions were of a clerical nature, some of which required special skills such as ability to type, knowledge of stenography or training in bookkeeping.
The Miscellaneous Forces’ employees, prior to May 1, 1942, had no right to transfer or to promotion to a Clerk’s job. Those who applied for and were awarded Clerks’ jobs acquired seniority on the Clerks’ roster as of the date of the award, but forfeited their seniority on the Miscellaneous Forces’ roster. In practical terms this meant that in the event of a reduction in force in the Clerk’s position to which such an employee had been appointed, he could not readily regain his prior Miscellaneous Forces’ job.
On May 1, 1942 the defendant union, as the bargaining representative of both the Clerks’ and Miscellaneous Forces’ employees
A Group 2 employee still had no right of promotion or transfer to Group 1 jobs. A significant change, however, was that he could now bid for Group 1 jobs without loss of seniority on the Group 2 roster. In the event a qualified Group 2 employee bid for, and was awarded, a bulletined Group 1 job,
On January 23, 1943 the railroad and the union entered into an agreement, referred to as the “Military Service Agreement.” This agreement, to be considered hereafter, is on its face a reiteration of the veteran’s Federally protected rights under section 8 of the Act.
In addition to their Group 2 seniority, the plaintiffs also achieved Group 1 seniority in consequence of a procedure which was adopted in connection with the Military Service Agreement — a procedure which was restricted to veterans. Shortly after his return to the service of the railroad, each plaintiff, as well as other Group 2 re-employed veterans, was afforded an opportunity to review the Group 1 jobs which had been bulletined and awarded during his absence in the military service to junior Group 2 employees or newly hired employees. Each plaintiff selected therefrom a job for which he was qualified, whereupon he was given a seniority date on the Group 1 roster immediately ahead of the junior man who filled the job. Plaintiffs all claim a higher date than that which they were granted as a result of this procedure, as shown by the following schedule:
Name Group 1 Seniority Date Now Claimed Date Furloughed
O’Shaughnessy 12/13/42 10/28/42 10/28/42*
Skelly 8/10/42 7/ 9/42 7/ 9/42*
Hannan 8/10/42 5/ 1/42 2/ 1/42
Michaels 8/10/42 5/ 1/42 2/ 1/42
Moretto 3/27/43 2/ 5/43 2/ 5/43*
Conseglio 8/10/42 5/ 1/42 12/31/41
While the rights of the plaintiffs to protection against loss of seniority and promotion benefits by reason of military service derive from the Selective Training and Service Act, the collective bargaining agreements set the frame of reference in passing upon their claims, provided, of course, that such agreements do not contravene the Act.
“[A] veteran is not entitled to ■ demand that he be assigned a position higher than that he formerly held when promotion to such a position depends, not simply on seniority or some other form of automatic progression, but on the exercise of discretion on the part of the employer.”
Plaintiffs, however, contend that the McKinney case is no bar, since here they seek neither positions nor promotions, but rather to establish their seniority status which is a substantial “constituent of, but is different from, a right of promotion.” This purported distinction centers principally about that feature of the May 1, 1942 agreement already noted, whereby a Group 2 employee who bid for a Group 1 job did not forfeit his seniority status on the Group 2 roster, whether he failed in his bid or was successful. The nub of their contention, as this Court understands it, is that this liberalized bidding provision favorably advanced Group 2 employees’ “rights to promotion” by protecting them against the hazards of reduction of working forces. Accordingly, plaintiffs argue that while the May 1, 1942 agreement did not by express terms provide for automatic promotion or transfer to Group 1 positions, it did grant them a bidding opportunity for Group 1 jobs which they were prevented from exercising because they were in military service. Proceeding from this premise, they argue that since under the 1942 agreement seniority governs (the factors of fitness and ability being sufficient), seniority status is a substantial constituent of the “right to promotion” which they are entitled to have declared in this action as of the dates they seek because of the loss of opportunity to bid for the jobs and, as they contend, consequent deprivation of a right of promotion.
The broad thrust of their position, as distilled from the record, briefs and argument of counsel, is that the opportunity to bid for the Group 1 jobs “automatically accrued” in plaintiffs’ favor. In the instance of the three plaintiffs who were in military service on the date of the agreement, it is urged that since their absence in military service foreclosed their bidding for Group 1 jobs, and since it cannot be ascertained when, had they been present when those positions were bulletined, they would have availed themselves of the right to bid, they are entitled to seniority dates on that roster which coincide with what they term the “accrual of the opportunity.” This they fix as May 1, 1942, the effective date of the collective bargaining agreement. In the instance of the other three plaintiffs, the contention is that although in the employ of the railroad from May 1, 1942 until thereafter furloughed for military service, they were unaware of the agreement and each seeks his furlough date as the seniority date to reflect “the accrual of the automatic opportunity.” In asking for seniority advancement to those respective dates, all plaintiffs assert they are entitled thereto, even though no position was open on those days and without regard to whether a position was bulletined.
The weakness of plaintiffs’ position is perhaps best demonstrated by the claims of the three who were not furloughed for military service until after the May I, 1942 agreement became effective. None of these three had bid for any Group 1 position which had been bulletined up to the time he left for military service and yet each claims seniority on that roster as of the day of furlough upon his contention that he was ignorant of the new bidding features of the May 1, 1942 agreement. Apart from the fact that the agreement was binding upon them whether or not they knew of its various provisions, it is clear that the liberalized terms thereof, which permitted Group 2 employees to bid for Group 1 bulletined positions without loss of their higher seniority on the Group 2 roster, was widely heralded among the employees as a substantial gain for them. The Court finds that in fact they were aware of their newly acquired right to bid for the Group 1 positions without loss of seniority. Having failed to bid' for bulletined positions, these employees are seeking a higher seniority rung than they would have been entitled to had they remained with the railroad and not been in military service. Moreover, the assumption that all Group 2 employees, including those who were in service on May 1, 1942, would have bid for a Group 1 job which had been bulletined had they then been present, meets challenge from the factual situation. Due to war conditions, overtime work was much higher in the Group 2 category than in Group 1, and as a result the railroad experienced much difficulty in filling Group 1 positions. Many Group 2 men preferred to remain in that category and did not bid for Group 1 positions because of the greater overtime pay opportunities in Group 2.
Finally, the purported distinction between the “seniority status” here involved and the “right to promotion” of McKinney is illusory. The basic issue of McKinney concerned seniority. The principal difference in the relief sought in that case and in the instant one is that here plaintiffs seek solely a declaration
Plaintiffs, however, seek to bolster their position by anchoring their argument to the 1943 Military Service Agreement. While they have stipulated they “do not claim any right in this action to adjudicate their contractual rights under the military service agreement,” nonetheless they rely upon it and events in connection with it for probative support that the bidding opportunity under the May 1, 1942 agreement automatically accrued in their favor and was recognized as a substantial right to promotion. They emphasize that provision of the agreement which provides that a reemployed veteran shall be “restored to such position * * * (including rights to promotion) to which his accumulated seniority entitles him, all in accordance with the then existing rules of the scheduled agreement, the same as if he had remained in the [railroad’s] service.” (Emphasis supplied.)
This agreement applied solely to veterans. It states that it was entered into “pursuant to Federal legislation (i. e., Public Resolution No. 96, of the 76th Congress., and the Selective Training and Service Act of 1940).”
Reference has already been made to the circumstances under which plaintiffs and other Group 2 veterans acquired retroactive seniority on the Group 1 roster in addition to their Group 2 seniority. These seniority ratings were the result of the operation of the Military Service Agreement and came about in the following manner.
In January, 1946, when most of the veterans had returned to the railroad’s employ, a bulletin was posted by the railroad to the effect that returning Group 2 employees would be afforded an opportunity to select a Group 1 position and “will be given seniority in Group-1 equal to and ranking ahead of a promoted junior Group-2 or Group-1 employe hired during his absence.” The rehired veterans went or were sent to an assignment office in Jersey City and made their selections from bulletins which had been posted in their absence and which were made available to them. This was done informally and undoubtedly there was some confusion in the selection process.
The procedure adopted to implement the Military Service Agreement yielded more to plaintiffs and other Group 2 veterans than they were entitled to under the May 1, 1942 collective bargaining agreement which defined the terms and conditions of employment applicable to all employees. Those restored Group 2 men, who made selections from the bulletins at the assignment office, were granted Group 1 seniority ratings based upon the award of a single Group 1 job while they were in military service. The Group 1 seniority status of more than one Group 2 veteran was based upon the award of a single Group 1 job. The ratings were accorded without regard to the availability of Group 1 positions. Thus men achieved dual seniority on the basis of the award of a single job while they were in service. By way of example, in the instance of Group 2 civilians, in any bid for a Group 1 job, only the man who was awarded the job received seniority starting the day he entered upon his new duties. The unsuccessful Group 2 bidders (the civilian employees) received no seniority on the Group 1 roster. In contradistinction, if three Group 2 veterans, under the procedure employed following the posting of the notice to appear at the assignment office, selected a Group 1 job which had been awarded to a
Thus, it is abundantly clear that plaintiffs here seek advancement in status beyond that to which they would have been entitled had they remained in the continuous employ of the railroad and indeed greater advancement than senior Group 2 employees who were not in the Armed Forces could have asserted as of right. The underlying purpose of the Act is to protect the rights of the returning veterans to the extent that they would have existed if they had not gone into military service. The veteran was not to be disadvantaged because of his absence in the military; however, he was not to be favored as against his fellow employee.
Once again turning to the teaching of McKinney:
“[The Act] does not assure him that the past with all its possibilities of betterment will be recalled. Its very important but limited purpose is to assure that those changes and advancements in status that would necessarily have occurred simply by virtue of continued employment will not be denied the veteran because of his absence in the military service. The statute manifests no purpose to give to the veteran a status that he could not have attained as of right, within the system of his employment, even if he had not been inducted into the Armed Forces but continued in his civilian employment.”
The fact that the railroad granted to plaintiffs and other Group 2 veterans greater seniority than they were entitled to, and went beyond the requirements of the collective bargaining agreement of May 1,1942, did not enlarge their rights thereunder or under the Act.
The defendants have prevailed upon the substantive aspects of the case, but it is desirable to consider their separate defense of laches.
On June 20,1951 plaintiffs’ claims were referred by the Department of Labor to the United States Attorney for the Southern District of New York pursuant to the Act.
While it is true that plaintiffs themselves took no action for more than three years after their seniority dates were assigned, this delay has not been shown to have prejudiced the defendants. As to the subsequent delay attributable to the Assistant United States Attorney, it cannot be gainsaid that this did, in some measure, foreclose the defendants from a full presentation of all the facts attendant upon the selection by the men of their Group 1 seniority dates in the spring of 1946. However, the inaction of the Assistant United States Attorney, despite the efforts of the plaintiffs to goad him into action, cannot be attributed to them. After 1949 they did whatever they could to assert their rights. Since the unexplained delay in the commencement of the suit and the even more inexplicable failure to prosecute it, particularly since under the mandate of the statute a “speedy hearing”
The foregoing shall constitute the Court’s Findings of Fact and Conclusions of Law.
. 54 Stat. 885 (1940), as amended (now Universal Military Training and Service Act, 62 Stat. 604 (1948), as amended, 50 U.S.C.App. § 451 et seq. (1958)).
As the relevant provisions of the Selective Training and Service Act of 1940 under which this suit is brought and the present Universal Military Training and Service Act are substantially the same, McKinney v. Missouri-K.-T. R. R., 357 U.S. 265, 271, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958), no distinction will be made between citing cases dealing with, the-earlier or later Act.
. 54 Stat. 890 (1940), as amended (now Universal Military Training and Service-Act, § 9, 62 Stat. 614 (1948), as amended, 50 U.S.C.App. § 459 (1958)).
. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230 (1946).
. McKinney v. Missouri-K.-T. R. R., 357 U.S. 265, 272, 78 S.Ct. 1222, 2 L.Ed.2d 130 (1958). See Fishgold v. Sullivan Dry-dock & Repair Corp., 328 U.S. 275, 285-286, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946).
. Prior thereto the Miscellaneous group was represented by another union.
. Absent a bid from a qualified Group 1 or a qualified senior Group 2 employee.
. Plaintiffs refer to provision 3-0-3 (a) of the 1942 contract as discriminatory against veterans because it provides that “furloughed” employees will lose seniority if they are notified in writing of bulletined positions and fail to fill them within ten days. The short answer is that plaintiffs do not claim that the rule was invoked against them or that they lost any seniority by reason thereof. Second, it is clear that the provision applies only to employees “furloughed” in reduction of force and not to those “furloughed” for military service. The caption in the margin indicates that the former was its purpose and the evidence fully supports that view.
There is a conflict in the evidence with respect to these furlough dates, but the Court finds them as set forth above.
. See McKinney v. Missouri-K.-T. R. R., 357 U.S. 265, 268, 78 S.Ct. 1222 (1958) ; Aeronautical Industrial Dist. Lodge 727 v. Campbell, 337 U.S. 521, 526, 69 S.Ct. 1287, 93 L.Ed. 1513 (1949).
. 357 U.S. 265, 272, 78 S.Ct. 1222 (1958).
. Stenographer’s minutes 24-27.
. Horton v. United States Steel Corp., 286 F.2d 710 (5th Cir., 1961); Sularz v. Minneapolis, St. P. & S. S. M. R. R., 259 F.2d 122 (8th Cir., 1958); Bassett v. Texas & Pac. Ry., 258 F.2d 819 (5th Cir., 1958) ; Raulins v. Memphis Union Station Co., 168 F.2d 466 (6th Cir., 1948). See Tilton v. Missouri Pac. R. R., 306 F.2d 870 (8th Cir., 1962).
. While it is true that Conner v. Pennsylvania R. R., 85 U.S.App.D.C. 223, 177 F.2d 854 (1949), cert. denied, 339 U.S. 919, 70 S.Ct. 622, 94 L.Ed. 1343 (1950), does suggest that this consideration is not relevant in determining the seniority status of returning veterans, there was a finding in that case that the requirement of qualification was “usually, if not universally, met by employees already in good standing in the freight service.” 177 F.2d at 857-858. Moreover, the continued vitality of the Conner case in the light of McKinney v. Missouri-K.-T. R. R., 357 U.S. 265, 78 S.Ct. 1222 (1958) lias been called into question. Tilton v. Missouri Pac. R. R., 306 F.2d 870, 876 (8th Cir., 1962).
. See Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285-286, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946).
. The evidence indicates that some returning veterans junior to plaintiffs on Group 2 were awarded seniority ranking above them on Group 1, while other returning veterans senior to plaintiffs on Group 2 received placement junior to them on the Group 1 seniority roster,
. Aeronautical Industrial Dist. Lodge 727 v. Campbell, 337 U.S. 521, 526, 69 S.Ct. 1287, 93 L.Ed. 1513 (1949).
. 357 U.S. 265, 271-272, 78 S.Ct. 1222 (1958).
. McKinney v. Missouri-K.-T. R. R., 357 U.S. 265, 273, 78 S.Ct. 1222 (1958).
. See Grillea v. United States, 229 F.2d 687 rev’d on other grounds on rehearing, 232 F.2d 919 (2d Cir., 1956).
. See Leonick v. Jones & Laughlin Steel Corp., 258 F.2d 48 (2d Cir., 1958); Del
. 62 Stat. 618 (1948), as amended, 50 U.S.C.Appendix § 459(h) (1958) (formerly 54 Stat. 891 (1940), Selective Training and Service Act of 1940, § 8(g)).
. 54 Stat. 891 (1940), Selective Training and Service Act of 1940, § 8(e) (now 62 Stat. 616 (1948), Universal Military Training and Service Act, § 9(d), 50 U.S.C.Appendix § 459(d) (1958)).
. These references are not to the Assistant United States Attorney whose name is listed at the head of this opinion. He, from the time of his assignment to this case, prosecuted it with diligence, industry and ability.
. 54 Stat. 891 (1940), Selective Training and Service Act of 1940, § 8(e) (now 62 Stat. 616 (1948), Universal Military Training and Service Act, § 9(d), 50 U.S. C.Appendix § 459(d) (1958)).