Oakley v. Louisville & N. Ry. Co., 10648.

• Decision Date: 22 November 1948
• Docket Number: No. 10648.,10648.
• Citation: 170 F.2d 1008
• Parties: OAKLEY v. LOUISVILLE & N. RY. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

170 F.2d 1008 (1948)

OAKLEY v. LOUISVILLE & N. RY. CO.

No. 10648.

United States Court of Appeals Sixth Circuit.

November 22, 1948.

Claude P. Stephens, of Lexington, Ky. (Claude P. Stephens and Kit C. Elswick, both of Lexington, Ky., on the brief), for appellant.

James Park, of Lexington Ky., and Richard R. Lyman, of Toledo, Ohio (Willard H. McEwen, of Toledo, Ohio, C. S. Landrum and C. E. Rice, Jr., both of Lexington, Ky., on the brief), for appellee.

Before HICKS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

Appellant commenced working for the Louisville and Nashville Railroad Company as an apprentice machinist at Louisville, Kentucky, on July 1, 1938, and in 1941, was promoted to the position of machinist at the same place. In 1943, he gave up his seniority rights in that place in order to be transferred to the yards of the railroad company at Loyall, Kentucky, as a locomotive machinist. On July 6, 1943, he began work in that capacity at Loyall and established seniority there as of that date. He continued in such employment until May 7, 1944, when he was inducted into the armed forces of the United States. Thereafter, he served in the army until May 22, 1946, when he was honorably discharged. While he was serving in the army, the amount of machinist work had so decreased at Loyall that the railroad company, on July 1, 1945, reduced its force at that point. At that time, the machinists in the employ of the railroad company at Loyall were given the right to transfer to the shops at Corbin, Kentucky, and were given seniority at the latter place as of the date of their transfer.

Appellant, on June 1, 1946, within ninety days after his discharge from the army, applied for re-employment in the position which he occupied with the company at the time he was inducted into the armed services and asked for the seniority status and pay that he would have had if he had continued in the employ of the company in lieu of his service in the army. After appellant had made this application, he was re-employed as locomotive machinist at Corbin, Kentucky, on July 17, 1946, and was given seniority at that place as of that date. He thereafter filed his complaint against the company in the district court, claiming that under the Selective Service Act of 1940, he was entitled to seniority as of July 1, 1945, the date on which the other employees of the company at Loyall transferred to the shops at Corbin, to which point he states he would have transferred if he had not been in the armed services.

By order of the district court, System Federation No. 21 of the Railway Employees Department of the American Federation of Labor was granted leave to intervene, and thereupon moved to dismiss appellant's complaint on the ground that under Section 8(c) of the Selective Training and Service Act of 1940, 54 Stat. 885, 50 U.S.C.A.Appendix, § 308(c), a veteran's right to restoration to employment without loss of seniority is terminated one year after such restoration; and that more than one year had elapsed since appellant had been restored to employment with the...