157 F. Supp. 862 | D. Mass. | 1957
This is an action brought under the Universal Military Training and Service Act, § 9(b) as amended 50 U.S. C.A.Appendix, § 459(b), for wages and benefits lost by reason of defendant’s failure to re-employ plaintiff after his military discharge. The defendant is a building contractor. On April 25, 1951 he hired the plaintiff as a general laborer. The plaintiff worked until July 3, 1951. On that day either he did not report in, or he was laid off. On July 5 he was either transferred, or re-hired, by the defendant for a new project. I do not resolve these alternatives, deeming it immaterial. He continued to work for the defendant until October 31.
The defendant contends that plaintiff’s employment was of a “temporary nature.” In this respect defendant proved too much. His evidence was that as, due to the nature of his business, his requirements for unskilled labor were uneven, all labor was hired “by the job.” This would mean, as interpreted by the defendant, that all of his labor employment was of a temporary nature. Many of defendant’s employees were laborers. Such interpretation would do violence to
The defendant was obligated to offer the plaintiff a position as common laborer whenever such work was available. Since, admittedly, there was no seniority among this class of employees,
The only question remaining is what work defendant had available from November 17, 1953 to April 15, 1954. The defendant has submitted his payroll. I accept his distinction, confirmed by the business representative of plaintiff’s union, between mason’s helpers, and ordinary labor. On that basis defendant employed a person in a position occupiable by the plaintiff
. There was a further dispute as to whether a shift of job sites in August was a transfer or re-hire. One of defendant’s foremen described it as a transfer. The payroll records indicate that one day in August plaintiff did not work. It is not clear that this was the day between jobs. In any event, in some instances shifting jobs may have involved a day on which no work was available. The matter is of no significance. The important matter is whether plaintiff was consistently treated by defendant as employable for regularly available common labor. I find that he was.
. The plaintiff argues that he was always furnished transportation prior to his entering the service. I find this was an informal arrangement, sometimes with other employees, and not part of the defendant’s obligation or undertaking. The Marion job offered to commence April 16 was not within the area of plaintiff’s local union, but neither was the Middleboro job which was one of the two principal ones he had in 1951. It may have been inconvenient for plaintiff to go to Marion, but it is not a great distance from Brock-ton and it does not appear that he could not have gone if he had wanted to make the effort. If all of his 1951 jobs had been in the area of his local union I would have reached a different result, but I find this offer, made in good faith, satisfied defendant’s obligation pro tanto.
. To this there was one exception, that the first laborer hired was to be a regular union steward. This, plaintiff was not.
. In addition to mason’s helpers I have excluded one Holyoke, who appears to have had some special contract, and two persons whom the union named as labor stewards. See note 3, supra.