Does an employee who has been classified and deferred by his draft board as an essential civilian employee at his employer’s request, but who resigns from employment in order to volunteer for induction into the armed services, forfeit his statutory right to be restored, on the satisfactory completion of his military service, to the position from which he resigned, or to one of like seniority, status and pay? Petitioner asks that this question be answered in the affirmative. The respondent says that it should be answered in the negative.
There is no dispute as to the facts. The material facts, briefly stated, are as follows: Petitioner entered the service of respondent railway company in 1936 as a laborer. He was promoted from time to time until 1942 when he was made a first-class, painter. As of December, 1943, he was married, with three minor dependent children. At the request of respondent, and over his own protest, he was deferred by his local draft board as an employee essential to railroad operations. He attempted to enlist in the military forces, but was told that he could not 'be accepted unless he was released from deferred status by respondent. Following its general policy in such matters, respondent refused to release him from deferred status, whereupon he wrote respondent as follows : “Effective Saturday April 8, 1944, I am resigning from the system paint forces. I have tried to get' released from the Railway Co. in order to join the military forces, but I find I cannot get released, so I am resigning in order to join.” Five days later, (April 15, 1944) he entered the United States Navy as a volunteer inductee. He was honorably discharged on October 19, 1945, and six days later made application to respondent for'reemployment in the position from which he' resigned, or to one of like seniority, status and pay, which request was .refused. Respondent offered to employ petitioner as a painter helper with less pay than a first-class painter and with seniority from date of reemployment, which petitioner declined to accept. Petitioner pursued no gainful employment until April 1, 1946 when he accepted employment with a grocery store. On August 15, 1946, counsel for respondent received a letter from the United States Attorney stating that petitioner had applied to that office for aid in securing reinstatement with the railway company, and asking what the position of the railway company would be in the matter. In December, 1946, the railway company replied, and furnished the information requested. On February 13, 1947, this action was instituted under Section 8(e) of the Selective Training and Service Act of 1940, as amended, hereinafter called the Act, 54 Stat. 890, 50 U.S.C.A.Appendix, § 308(e), to compel the respondent to reemploy petitioner in his position as first-class painter, and for damages arising out of respondent’s failure to reemploy him. The relevant provisions of the Act are as follows :
“8(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position, other .than.a temporary position, in the employ of any employer * , *
“(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay * * ^ )t
Respondent does not" question the fact that petitioner resigned his position with intent to join the military forces. Indeed there could be no other conclusion. The agreed statement of facts shows that when petitioner learned that respondent sought his deferment on occupational grounds¡ he •wrote his local draft board stating that he did not wish to be deferred. When placed in a deferred classification he attempted to enlist in the military forces, but was told that he could not be accepted unless he was released from his deferred status by respondent. When respondent refused to do this, he resigned his position. His letter makes it crystal clear that his resignation was for only one purpose — to join our mili
Respondent says that when he resigned, <y . petitioner forfeited his reemployment rights under the Act; that such resignation of his position, even to make it possible for him to enter the military forces, did not constitute a leaving of his position in order to perform training and service; that he left his employment to acquire a nondeferrable status which he hoped would lead to performance of training and service; that his resignation “was an intermediate step, the necessity for which he well realized in order to thwart the policy of his Government” in deciding which men should serve in' essential industry and which men should serve in the military forces; and that “such unwarranted action of petitioner did, by chance, result in the fulfilment of his ultimate desires” to join the Navy. The effect of this argument is to say that Congress intended to give reemployment rights only to persons forced or compelled to leave their civilian jobs because of military training and service required of them under the Act. I see no merit in these contentions.
The same argument was advanced in Hayes v. Boston and Maine R. R., D.C.,
“And this interpretation is in accord with the general tenor of the Act. It is not a national service act. It does not attempt to impose over-all controls on the nation’s manpower. Its purpose was to increase and train the personnel of the nation’s armed forces by compelling military service, and as such, it no doubt tended to discourage volunteering. But it did not go so far as to prevent that practice. On the contrary in § 3(a) it expressly provided that under certain conditions an opportunity to volunteer for induction must be preserved. To be sure one of the conditions imposed is that the volunteer for induction must not be in a deferred classification, but this falls short of prohibiting a man from stepping out of such a classification by leaving his employment.
“We think the court below was correct in interpreting § 8(b) of the Act as granting reemployment rights to any person who resigns from his job as a means of terminating his deferment and thereby making himself available for voluntary induction, provided of course that he does so for the purpose of serving, is accepted, and then actually serves, in the armed forces.”
The same question also arose in Bentubo v. Boston, D.C., & M. R. R., 66 F.Supp.
A third case, decided by the District Court of the Middle District of Tennessee, on October 24, 1947, holding that the reemployment benefits of the Act should be extended to a veteran in a deferred class who resigned his employment in order to become available for induction into the armed forces is Blackford v. Nashville Gas & Heating Co., D.C.,
The only case to support respondent’s contentions is that of Rudisill v. The Chesapeake & Ohio Railway Company,
Can there be any question about what Congress intended when it used the words in section 8(b) “in the case of any such person who, in order to perform such training and service, has left or leaves a position * * * ”. As was said in the McCarthy case, those words are clear and unambiguous. The first resort in ascertaining the legislative intent is to give words used in a statute their natural, ordinary and familiar meaning and that meaning will be applied unless Congress has definitely indicated the words in the statute should be construed otherwise. The plain, obvious and rational meaning of a statute is always to be preferred to any cu
These clear words when read in the light of the legislative history of the Act demonstrate that Congress did not in-* tend to limit the reemployment rights' of the veteran to those inductees who were required by reason of induction to leave a position. Thompson left his employment with respondent in order to perform training and service in the military forces. His resignation in order to terminate his deferment cannot be used by respondent to deny him the benefits of the Act. Such interpretation is in accord with the ordinary meaning of the words quoted above and the principle laid down in the case of Fishgold v. Sullivan Drydock & Repair Corporation, supra [
Respondent also says that petitioner has waived any rights that he might have had under the Act. While it is true that respondent heard nothing from petitioner between October 25, 1945, when it •declined reemployment in same seniority status, and August, 1946, when it received letter from the office of the United States Attorney, this delay is not sufficient to amount to an abandonment or waiver of all his reemployment rights under the Act. Petitioner is entitled to be reinstated to the position of first-class painter with no reduction in seniority or pay. In addition he is entitled to receive compensation which he would have earned if reemployed in his old position, but only for the period between the institution of this action and the present time, less what petitioner has earned during, this same period in other employment. In Kay v. General Cable Corporation, D.C.N.J.,
In Dacey v. Bethlehem Steel Co., D.C.,
In Karas v. Klein, D.C.,
The general rule seems to be that compensation should begin when application for reemployment is made. But where the veteran has delayed an unreasonable length of time in enforcing his demands it would be unfair to the employer to compel compensation for the interim period. Dacey v. Bethlehem Steel Co., supra. Suit was not instituted in the instant case until about 16 months after application for reinstatement wps made. Petitioner is not entitled to recover compensation for any period prior to date of filing suit.
While the point has not been raised or discussed by respondent, the court must decide whether certain monthly rehabilitation payments received by the petitioner from the United States since this action was instituted should be deducted in computing the amount of his recovery from respondent. Such payments were deducted in Salter v. The Beckner Roofing Co., D. C. Ala.,
The intent of Congress in enacting Section 8 was twofold. As stated by Judge Meaney in Kay v. General Cable Corporation, supra: “It was designed to provide for the rehabilitation of the returning veteran so that he might be equipped to enter a highly competitive world of job finding without the handicap of a long absence from work, as well as to provide for his financial stability for the period of at least one year following his discharge from service. The act aimed, in my opinion, to present an opportunity for men to reacquire dormant skills and to provide an equal opportunity to return to the pursuit -of the work for which they have a particular aptitude. Were this not so, it would suffice if the equivalent of one year’s salary were paid the veteran if he was unlawfully denied reinstatement by his former employer.” The Act provides that the employer who wrongfully, denies reinstatement shall compensate the veteran for the loss of wages or benefits suffered by reason of the employer’s unlawful action. In this manner Congress provided that the employer should aid the veteran who had been denied reinstatement and thereby prevented from reestablishing himself as a wage earner in his proper field of endeavor.
Congress also realized that the returning veteran would be handicapped because of his absence from his civilian occupation, and provided certain benefits in the nature of gratuitites, which were intended solely for the returning veteran and his dependents. Among these benefits was that provided by Title 38, Ch. 12, Part VIII, Veterans’ Regulation No. 1(a), following section 739, of the United States Code Annotated. That statute made it possible for a veteran to enter school or to enter upon a new trade as an apprentice and to receive a subsistence allowance from the government while in such school or while •working as such apprentice. This money was a gift to him from his government, not to supplement any earnings of the veteran in civilian employment, but only , as :a subsistence allowance, the amount of which depended upon, whether the veteran had one or more dependents. Congress did not intend to benefit an employer who wrongfully refused to reinstate a returning veteran by allowing it to deduct such subsistence allowance from the amount to be paid by such employer. To do this would be to permit the employer to be benefited at the expense, first, of a returning service man for whose exclusive benefit such subsistence allowance was designed, and, secondly, at the expense of,the United States whose Congress intended to provide these funds to be exclusively for the subsistence and rehabilitation of veterans. If both the money earned in the new employment and the subsistence allowances were deducted, it would encourage the employer to refuse to reemploy a veteran because in many cases the two amounts' would exceed the old wage, and the compensation provisions of the Act would mean nothing.
In Hoyer v. United Dressed Beef Co., D.C.Cal.,
In Troy v. Mohawk Shop, Inc., D.C.,
The parties will make the computation as to damages and submit the same to this court with an appropriate order for approval.