357 U.S. 265 (1958), 93, McKinney v. Missouri-Kansas-Texas R. Co.

Docket Nº:No. 93
Citation:357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305
Party Name:McKinney v. Missouri-Kansas-Texas R. Co.
Case Date:June 23, 1958
Court:United States Supreme Court

Page 265

357 U.S. 265 (1958)

78 S.Ct. 1222, 2 L.Ed.2d 1305



Missouri-Kansas-Texas R. Co.

No. 93

United States Supreme Court

June 23, 1958

Argued January 27, 1958




Under § 9 of the Universal Military Training and Service Act, petitioner, who had been promoted by respondent railroad to an advanced position upon his return from military service, though, under the collective bargaining agreement between his union and the railroad, such promotion depended on fitness and ability, was not entitled to seniority in his new position from the date he would have had the opportunity to qualify for it had he remained in the continuous employment of the railroad. Pp. 266-274.

(a) Before bringing suit under § 9(d) of the Act, petitioner was not obliged to pursue remedies possibly available under the grievance procedure set forth in the collective bargaining agreement or before the National Railroad Adjustment Board. Pp. 268-270.

(b) Since promotion to the higher position in this case was not automatic, but was dependent on fitness and ability, petitioner received a promotion which was not required under the Act, and respondent was not obliged to give him a seniority date earlier than that to which any employee similarly promoted would have been entitled. Pp. 270-273.

(c) Because his complaint was dismissed and he had no opportunity to prove that, by custom and practice under the collective bargaining agreement, he would necessarily have been promoted to the new position had he remained continuously in respondent's employ, petitioner is granted leave to amend his complaint to allege, if such be the fact, that, in actual practice under the collective bargaining agreement, his promotion was automatic. Pp. 273-274.

240 F.2d 8, affirmed.

Page 266

FRANKFURTER, J., lead opinion

[78 S.Ct. 1224] MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

This case arises out of proceedings to enforce the claim of a veteran to reemployment rights under § 9 of the Universal Military Training and Service Act. 62 Stat. 604, 614-618, as amended, 50 U.S.C.App. § 459, as amended, 50 U.S.C.App. (Supp. V) § 459. More specifically, petitioner claims that he has been deprived of seniority rights to which he is entitled under the statute and the collective bargaining agreement in force between his employer, respondent railroad, and the union representing its employees.

Made part of the complaint filed in the District Court are provisions of the collective bargaining agreement regulating the relations between respondent and its employees, especially provisions relating to seniority and promotions. Employees are divided into three groups according to the functions they perform, with seniority defined within each group. Rule 10 provides that, when new positions are available or vacancies occur in existing positions, such positions will be "bulletined" by the employer, and employees may bid therefor. Rule 1(3)(A) provides that

Promotion will be confined to the group . . . , with the exception that employees on positions enumerated in group two (2) will be given preference

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over nonemployees in the assignment to positions in group one (1), based upon fitness and ability. . . .

Rule 15 states that

An employe returning after leave of absence may return to former position or may, upon return . . . exercise seniority rights to any position bulletined during such absence.

The complaint alleges that petitioner was employed by respondent as a relief clerk-chief caller, a position classified under the collective bargaining agreement in group 2. On September 26, 1950, he left his employment for induction into the Armed Forces of the United States. Petitioner was still in the Armed Forces when respondent, pursuant to the procedure set forth in Rule 10 of the collective bargaining agreement, bulletined two group 1 positions to be filled. On September 8, 1952, the group 1 position of bill clerk was bulletined, and a nonemployee assigned to it on September 15. On September 10, 1952, the group 1 position of assistant cashier was bulletined, and a nonemployee assigned to it on September 22. Petitioner was separated from the military service on September 25, 1952, and, on October 1 applied for reemployment with respondent. He was...

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