Tilton v. MISSOURI PACIFIC RAILROAD COMPANY

• Decision Date: 17 August 1962
• Docket Number: No. 16814-16816.,16814-16816.
• Citation: 306 F.2d 870
• Parties: Donald I. TILTON, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee, Wilfred L. BECK, Jr., Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee, Guy H. McCLEARN, Jr., Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

306 F.2d 870 (1962)

Donald I. TILTON, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee, Wilfred L. BECK, Jr., Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee, Guy H. McCLEARN, Jr., Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.

Nos. 16814-16816.

United States Court of Appeals Eighth Circuit.

August 17, 1962.

Harry M. Leet, Atty., Dept. of Labor, Washington, D. C., for appellants; William H. Orrick, Jr., Asst. Atty. Gen., Washington, D. C., D. Jeff Lance, U. S. Atty., St. Louis, Mo., John G. Laughlin, Dept. of Justice, Joel A. Harmatz, Atty., Dept. of Labor, Washington, D. C., on the brief.

R. W. Yost, St. Louis, Mo., for appellee; M. M. Hennelly and A. D. Churchill, St. Louis, Mo., on the brief.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

BLACKMUN, Circuit Judge.

These are separate actions instituted under § 9 of the Universal Military Training and Service Act, as amended, 50 U.S.C.Appendix § 459.¹ The three plaintiffs, employees of Missouri Pacific Railroad Company, were each promptly reinstated in railroad employment following satisfactory completion of a period of military service. By these suits, however, the plaintiffs, represented by government counsel as authorized by § 9(d) of the Act, now seek to compel the railroad to grant them the higher seniority which they allegedly would have attained had military service not interrupted their civilian employment.

The actions were consolidated for trial. The district court held that the plaintiffs were not entitled to the relief they sought. It entered judgment for the defendant in each case.

The facts of the three cases are parallel. For the most part they are stipulated and, in any event, the trial court's findings of fact are not challenged here.

World War II occasioned a shortage of qualified carmen. In an attempt to cope with this situation the railroad and the bargaining representative, Brotherhood Railroad Carmen of America, entered into a series of agreements.² The pertinent provisions of the applicable contract are set forth in the margin.³ In general summary, it (a) provides for the advancement, under certain conditions, of carmen helpers to temporary carman status; (b) specifies that selection of helpers so to be advanced shall be made as the master mechanic or shop superintendent and the union's local committee agree; (c) calls for a chronological listing of men so upgraded; (d) denies that this dated listing connotes seniority; (e) specifies that any reduction in the force shall be in reverse chronological order; (f) provides for a helper's retention of his helper's seniority during the period of his temporary upgrading; (g) recognizes carman qualification upon a helper's completion of 1040 days of carman service; (h) requires the employee then to select either a carman's status and seniority date as of that time (coupled with a relinquishment of his helper's seniority) or a return to a helper's status; and (i) preserves any temporary upgraded status of a helper who has entered military service.

The pertinent portions of § 9 of the Act are also reproduced in the margin.⁴ They provide that one who has left his work with a private employer to enter military service and who makes timely application for reinstatement after the completion of his service shall, if still qualified, be restored "to such position or to a position of like seniority, status, and pay", shall be considered as having been on leave of absence during the service period, "shall be so restored without loss of seniority", and shall not be discharged from his position without cause for a year, and that it was the intent of Congress that he should be so restored "as to give him such status * * * as he would have enjoyed if he had continued in such employment continuously".

Each of the three plaintiffs here (a) was originally employed by the railroad as a carman helper, a non-temporary position; (b) was subsequently, pursuant to the bargaining agreement, upgraded to temporary carman while retaining his helper's seniority; (c) completed, before leaving for military service, only part of the 1040 day work period necessary for permanent advancement to carman; (d) returned from service to his employment as temporary carman; (e) was given the same relative position on the helpers' seniority roster which he had held before the interruption of his employment;⁵ (f) then completed his 1040 days of work as temporary carman; (g) then elected to be a carman and to take carman's seniority; (h) received a carman's seniority date as of that time; and (i) thereupon relinquished his helper's seniority.

The specific progress dates for each plaintiff are:

                                              Plaintiff   Plaintiff   Plaintiff
                                               Tilton      Beck       McClearn
                  1. Original employment
                     as carmen helper ....... 7-13-49      5-12-50     5-24-50
                  2. Upgrading to temporary
                     carman ................. 4-10-50      10-12-51    8-23-51
                  3. Departure for military
                     service ................ 10-12-50     3-1-55      10-23-51
                  4. Release from military
                     service ................ 12-23-51     3-  57      6-  53
                  5. Reemployment after
                     service ................ 1-2-52       3-11-57     6-11-53
                  6. Completion of 1040
                     day work requirement
                     and election to
                     take carman seniority .. 8-27-56      12-5-57     12-24-57
                  7. Seniority date on
                     carmen's roster ........ 8-28-56      12-5-57     12-25-57
                

Twenty-nine non-veteran helpers in Tilton's case, six in Beck's, and five in McClearn's, began work as upgraded carmen after the particular plaintiff had been so upgraded. They continued to work in that capacity while the plaintiff was in military service. These men were able to complete the 1040 day work period and to elect carman seniority before the plaintiff did so. They accomplished this, however, after the plaintiff would have reached that goal had it not been for his absence in service, had he worked whenever carman work was at hand, and had carman status been selected by him in preference to the retention of helper's status with its more advanced seniority. These non-veterans are now ahead of the plaintiffs on the carmen's seniority roster. They enjoy over the plaintiffs those advantages, such as work preference, order of layoff, and order of recall, which that seniority dictates.

The plaintiffs complain that their seniority was adversely affected by their absence in military service in that these non-veteran employees, junior on the temporarily upgraded list, are now ahead of them on the permanent list. They claim seniority status ahead of these non-veteran employees. They concede the existence of uncertainties, at the time of induction, as to ultimate qualification but they assert that, now that they have completed the work requirement, their desired priority in seniority status is no more than the situation which would have existed had their civilian employment not been interrupted by service. The plaintiffs' position here is exemplified by the following excerpt from their reply brief:

"Appellants do not contest the existence of various conditions or `uncertainties\' surrounding the completion of their 1040 days actual work on the job. * * * What appellant appellee? fails to take into account, however, is that following their return from military service, the veterans\' satisfactory performance of the work requirement and their meeting of any proficiency test, their election of promotion to journeyman, and the existence of vacancies and availability of work at all material times have, in their particular cases, resolved or eliminated all of these `uncertainties.\' There is indeed nothing `automatic\' about their completion of the work requirement, but once they have completed it, they are entitled to have their seniority date established, nunc pro tunc, as of the date they would have completed had they not entered military service."

We feel that this posture on the part of the plaintiffs compels a conclusion that the judgments for the defendant were correct. A review of the decided cases, however, is in order.

The landmark case is Fishgold v. Sullivan Drydock & Repair Corp., 1946, 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230. That case concerned a shipyard welder, the 1940 Act, and a bargaining agreement which provided that layoffs, where ability was fairly equal, should be controlled by length of service. That the welder's relative seniority was maintained while he was in military service is apparent from the Second Circuit's opinion in the case at 154 F.2d 785, 787. The employee, however, claimed, when he was a victim of a layoff made in the inverse order of seniority, that the 1940 Act protected him against layoffs over all non-veterans. The Supreme Court rejected this argument and held that the welder was entitled only to the maintenance of his relative seniority on the welders' roster. In so doing it articulated its escalator principle in the following frequently quoted language, pp. 284-288 of 328 U.S., p. 1110 of 66 S.Ct.:

"The Act was designed to protect the veteran in several ways. He who was called to the colors was not to be penalized on his return by reason of his absence from his civilian job. He was, moreover, to gain by his service for his country an advantage which the law withheld from those who stayed behind. * * He shall be `restored without loss of seniority\' and be considered `as having been on furlough or leave of absence\' during the period of his service for his country * * *. Thus he does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war. * * * This legislation is to be liberally construed * * *. And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the

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