Tilton v. Missouri Pacific Railroad Company

• Decision Date: 17 February 1964
• Docket Number: No. 49,49
• Citation: 376 U.S. 169,11 L.Ed.2d 590,84 S.Ct. 595
• Parties: Donald I. TILTON et al., Petitioners, v. MISSOURI PACIFIC RAILROAD COMPANY
• Court: U.S. Supreme Court

376 U.S. 169

84 S.Ct. 595

11 L.Ed.2d 590

Donald I. TILTON et al., Petitioners,

v MISSOURI PACIFIC RAILROAD COMPANY.

No. 49.

Argued Jan. 7, 1964.

Decided Feb. 17, 1964.

Philip B. Heymann, Washington, D.C., for petitioners.

Robert W. Yost, St. Louis, Mo., for respondent.

Mr. Justice GOLDBERG delivered the opinion of the Court.

Since 1940 Congress, as an integral part of selective service legislation, has protected the reemployment rights of veterans.¹ The principle underlying this legislation is that he who is 'called to the colors (is) not to be penalized on his return by reason of his absence from his civilian job.' Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230. Petitioners, reemployed veterans, sued respondent railroad, their employer, in the District Court for the Eastern District of Missouri.² They claimed that they have been deprived of seniority rights to which they are entitled under the Universal Military Training and Service Act and the applicable collective bargaining agreement.

The District Court³ held that petitioners were not entitled to the relief they sought. The Court of Appeals for the Eighth Circuit affirmed. 306 F.2d 870. We granted certiorari, 372 U.S. 905, 83 S.Ct. 722, 9 L.Ed.2d 715, because of the importance of the question in administering the statute protecting veterans' reemployment rights. For the reasons stated below, we reverse the judgments of the Court of Appeals.

The facts are not in dispute. Petitioners were initially employed by respondent railroad as carmen helpers. At the time of their original employment and since, the railroad has suffered from a shortage of qualified journeymen carmen mechanics. The collective bargaining agreement between the union representing the carmen, the Brotherhood Railway Carmen of America, and the railroad has provided methods for alleviating this shortage.⁴ Whenever the railroad is unable to employ persons presently qualified as carmen mechanics, the agreement provides for the advancement or 'upgrading' of carmen helpers to provisional carman status. Representatives of the railroad and the union jointly select the helpers to be so advanced. A helper thus 'upgraded' can then be employed by the railroad to perform the work of a journeyman carman mechanic and is entitled to be paid a carman mechanic's wage.

Under the labor agreement, however, the 'upgraded' helper does not immediately acquire permanent seniority as a journeyman. He retains his seniority as a helper until completing 1,040 days of actual work as a carman mechanic. At the end of that time the upgraded helper is considered a 'qualified carman.' He may then acquire a seniority date as a journeyman by making an election to that effect in writing.

Petitioners were upgraded from carmen helpers in accordance with the terms of the agreement. They were subsequently inducted into military service. At the time of his induction, Tilton had worked 145 days as a carman, Beck 851 days, and McClearn 21 days. Upon his honorable discharge from military service, each petitioner promptly returned to employment at the railroad, was reemployed as an upgraded carman, and thereafter satisfactorily completed the remainder of the 1,040-day work period necessary to qualify for journeyman status. Each, thereupon, immediately elected to acquire seniority as a journeyman carman mechanic. In each case, the railroad established petitioners' seniority as journeymen as of the date each actually completed the 1,040-day work period. As a result, petitioners had journeyman seniority junior to that of some carmen who had been upgraded to provisional carman status after petitioners were so advanced but who—because they were not absent in military service—were able to complete the 1,040-day service requirement before petitioners.

These nonveterans are now ahead of petitioners on the journeymen carmen's seniority roster and enjoy the advantages which seniority dictates, such as work preference and order of layoff and recall.

Petitioners contend that under this arrangement their absence in military service improperly affected their seniority because nonveteran employees who were junior on the temporary upgraded list are now senior on the permanent carmen's list.

Petitioners' claim rests upon §§ 9(c)(1) and 9(c)(2) of the Universal Military Training and Service Act. In § 9(c)(1) Congress directed that veterans returning from military service be restored to their civilian employment 'without loss of seniority.' This provision was first enacted as part of the National Guard Act, Joint Resolution of August 27, 1940, c. 689, 54 Stat. 858. The Chairman of the House Military Affairs Committee in reporting the conference and final version of the bill explained that one of the purposes of the reemployment provisions was to ensure restoration of the verteran to his 'seniority status.' 86 Cong.Rec. 10761. The reemployment provisions, including what is now § 9(c)(1), were carried over into the Selective Service Bill, 86 Cong.Rec. 10922 10923, and became § 8 of the Selective Training and Service Act of 1940, 54 Stat. 885, 890, as amended, 50 U.S.C.App. (1946 ed.) § 308.

In Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, the Court first considered and specifically interpreted the language in § 8(c) of the 1940 Act⁵ dealing with restoration to veterans of their civilian employment 'without loss of seniority.' The Court said: 'Congress recognized in the Act the existence of seniority systems and seniority rights. It sought to preserve the veteran's rights under those systems and to protect him against loss under them by reason of his absence.' Id., 328 U.S., at 288, 66 S.Ct., at 1113. The Court observed:

'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.' Id., 328 U.S., at 284—285, 66 S.Ct. at 1111.

This 'escalator principle' was reaffirmed by the Court in Trailmobile Co. v. Whirls, 331 U.S. 40, 67 S.Ct. 982, 91 L.Ed. 1328, and restated in Oakley v. Louisville & Nashville R. Co., 338 U.S. 278, 283, 70 S.Ct. 119, 122, 94 L.Ed. 87:

'(A)n honorably discharged veteran, covered by the statute (is), entitled by the Act to be restored not to a position which would be the precise equivalent of that which he had left when he joined the Armed Forces, but rather to a position which, on the moving escalator of terms and conditions affecting that particular employment, would be comparable to the position which he would have held if he had remained continuously in his civilian employment.'

Following these decisions Congress, in 1948, expressly approved the 'escalator principle' and continuous employment standard applied by the Court by adopting § 9(c)(2) of the present Act which provides:

'It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (d) (of this section) should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his r storation to such employment.' 62 Stat. 604, 615—616, as amended, 50 U.S.C.App. § 459(c)(2).

Section 9(c)(2), in effect, confirms the Court's interpretation of the meaning of § 8(c) of the 1940 Act which is identical with § 9(c)(1) of the present Act. McKinney v. Missouri-Kansas-Texas R. Co., 357 U.S. 265, 271, 78 S.Ct. 1222, 1226, 2 L.Ed.2d 1305.

It was in light of this background that the Court decided Diehl v. Lehigh Valley R. Co., 348 U.S. 960, 75 S.Ct. 521, 99 L.Ed. 749, which petitioners contend, and which we agree, controls the present case. Diehl involved facts and issues virtually identical with those now before us. Diehl, like petitioners, was a railroad carman helper temporarily 'upgraded' to carman status. He was inducted into military service while holding this upgraded position and, upon his return was restored to it. The collective bargaining agreement between the railroad and the union provided that upgraded carmen who had completed 1,160 days of work in that capacity could elect journeymen carman status. Upgraded men junior to Diehl had completed the requisite work period while he was in service and had been given seniority ahead of Diehl. Upon completion of the training period, Diehl protested claiming, as petitioners do here, that under §§ 9(c)(1) and 9(c)(2) of the Act, he was entitled to seniority as of the earlier date on which he would have completed the work period but for his absence in military service. The United States Court of Appeals for the Third Circuit decided against the veteran, on the ground that the Act protects only rights which are a mere function of time in grade and does not entitle the veteran to be treated as if he had been actively employed or trained during the period of military service. This Court reversed, per curiam, holding that '(u)pon the facts disclosed in the opinion of the Court of Appeals for the Third Circuit, 211 F.2d 95, the applicable Acts of Congress, and the opinion of this Court in Oakley v. Louisville & Nashville R. Co., 338 U.S. 278, 70 S.Ct. 119, 94 L.Ed. 87, the judgment of the Court of Appeals is reversed.' Diehl v. Lehigh Valley R. Co., 348 U.S. 960, 75 S.Ct. 521, 99 L.Ed. 749.

Although it would be difficult to conceive of a more applicable and controlling precedent, the court below attempted to distinguish Diehl on the ground that there it had been stipulated that the claimant 'would have completed' the work period on a given date if there had been no military service interruption.⁶ 306 F.2d, at 877. 'These stipulated words,' the court said, 'imply that the work completion was not dependent upon prior resolution of any contingency or...