637 F.2d 423 (5th Cir. 1981), 80-7054, Hembree v. Georgia Power Co.

Docket Nº:80-7054.
Citation:637 F.2d 423
Party Name:William G. HEMBREE, Plaintiff-Appellee-Cross-Appellant, v. GEORGIA POWER COMPANY, Defendant-Appellant-Cross-Appellee.
Case Date:February 20, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 423

637 F.2d 423 (5th Cir. 1981)

William G. HEMBREE, Plaintiff-Appellee-Cross-Appellant,

v.

GEORGIA POWER COMPANY, Defendant-Appellant-Cross-Appellee.

No. 80-7054.

Unit B

United States Court of Appeals, Fifth Circuit

February 20, 1981

Page 424

[Copyrighted Material Omitted]

Page 425

J. Lewis Sapp, David C. Hagaman, Robert H. Buckler, Atlanta, Ga., for defendant-appellant-cross-appellee.

Patrick M. Scanlon, Donald R. Livingston, Atlanta, Ga., for IBEW 84, amicus curiae.

William L. Harper, U. S. Atty., Wm. H. Berger, U. S. Dept. of Labor, Atlanta, Ga., Alice Daniel, Robert E. Kopp, Asst. Attys. Gen., U. S. Dept. of Justice, Helene R. Boetticher, Susan M. Webman, Attys., Carin A. Clauss, Sol. of Labor, Beate Bloch, Bobbye Spears, U. S. Dept. of Labor, Washington, D. C., for plaintiff-appellee-cross-appellant.

Appeals from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and FRANK M. JOHNSON, Jr., Circuit Judges, and ALLGOOD [*], District Judge.

FRANK M. JOHNSON, Jr., Circuit Judge:

In 1972 plaintiff was employed by defendant Georgia Power Company (the Company) in an other than temporary position in the Company's General Repair Shop. At that time, he terminated his employment in order to enter the armed forces. In 1974, while serving in active duty, plaintiff sustained an injury which left him functionally blind in one eye; he was subsequently honorably discharged. Plaintiff then sought reemployment with the Company as an apprentice electrician. At the time he applied for reinstatement, plaintiff had accumulated enough seniority to entitle him to bid on an apprentice position in any of the lines of progression in the General Repair Shop, including the position of apprentice electrician. However, medical recommendations of two company-designated doctors indicated that plaintiff's disability would disable him from safely performing the duties of apprentice electrician. Relying on these recommendations, the Company employed plaintiff as a Clerk B in the Parts Replacement Warehouse. 1 Plaintiff was the only clerk in that warehouse. After about six months, plaintiff expressed concern about working alone, and he requested and received an assignment to a Clerk B position in the General Repair Shop. The Clerk B position in the Parts Replacement Warehouse was later upgraded in pay.

In August, 1975, plaintiff contacted the Department of Labor, claiming that he had not been properly reemployed by the Company as required by the Veterans' Reemployment Rights Act, 38 U.S.C. § 2021, et seq. Plaintiff contended that he should have been reemployed as an apprentice electrician. At the request of the Department of Labor, the company-designated physician again examined plaintiff and again concluded that plaintiff could not safely perform some of the duties of an apprentice electrician.

In September, 1975, the Company referred plaintiff to its Communications Department concerning an opening in the Communications Technician line of progression. A prerequisite to this position was a Second Class FCC license, which plaintiff did not have. Plaintiff twice attempted to pass the examination for the license, but was unsuccessful both times. Thus, plaintiff never formally qualified for this position.

Page 426

In May, 1976, the Company urged plaintiff to bid on an opening in the Meterman C position in the Central Meter Shop. Plaintiff bid on this position, but qualified his bid to state that he would not relinquish his pursuit of the apprentice electrician's job. Company officials informed plaintiff, the bidder with the highest seniority, that he could have the position. The officials, however, also told plaintiff that they did not want him to transfer to the Central Meter Shop as an apprentice electrician. They informed plaintiff that, pursuant to the collective bargaining agreement, if he transferred he would retain his departmental seniority in the General Repair Shop for layoff purposes, but would begin with no departmental seniority in the Central Meter Shop. Plaintiff refused to accept the Meterman C position and informed Company officials that he intended to pursue the apprentice electrician's position through the Department of Labor. Plaintiff remained in his position as Clerk B in the General Repair Shop; from this position he was later promoted to Clerk A.

Plaintiff, represented by the Department of Labor, filed this action, contending that his reemployment did not comply with the Veterans' Reemployment Rights Act because he was not placed in a position of "like seniority, status, and pay, or the nearest approximation thereof." Concluding that the Company had not complied with the Act, the district court ordered the Company to employ plaintiff in the Central Meter Shop in the highest position for which he was at that time qualified, with departmental seniority dating from his original employment. However, observing that defendant attempted in good faith to comply with the Act, the district court denied plaintiff's prayer for prejudgment interest. Defendant Company appeals the judgment of liability and the calculation of the back pay award, and plaintiff cross-appeals the denial of prejudgment interest. In addition, the International Brotherhood of Electrical Workers, Local Union No. 84, as amicus curiae, urges that the district court erred by granting plaintiff seniority from the date of original employment. We affirm in part and reverse in part.

The Veterans' Reemployment Rights Act was originally enacted in 1940 to provide special protections to veterans returning from the military service. 2 By requiring former employers of veterans to...

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