Hayes v. Boston & Maine RR

• Decision Date: 19 June 1946
• Docket Number: Civ. A. No. 5249.
• Citation: 66 F. Supp. 371
• Parties: HAYES v. BOSTON & MAINE R. R.
• Court: U.S. District Court — District of Massachusetts

66 F. Supp. 371

HAYES v. BOSTON & MAINE R. R.

Civ. A. No. 5249.

District Court, D. Massachusetts.

June 19, 1946.

Edmund J. Brandon, U. S. Atty., William T. McCarthy, Asst. U. S. Atty., and Jackson J. Holtz, Asst. U. S. Atty., all of Boston, Mass., for plaintiff.

John DeCourcy, of Boston, Mass., for defendant.

FORD, District Judge.

This action by Edmund J. Hayes against the Boston & Maine Railroad arises under Section 8(e) of the Selective Training and Service Act of 1940, as amended, hereinafter called the Act, 54 Stat. 890, 50 U.S. C.A.Appendix, § 308(e), to compel the respondent to re-employ the petitioner in his position as yard foreman and for damages arising out of respondent's failure to re-employ him.

The facts are as follows:

In 1934 the petitioner entered the employ of the respondent as a car cleaner. From that time until August of 1943 he held the following positions: yard helper, yard foreman, and temporary assistant yard master. After being promoted to temporary assistant yard master, he was demoted for alleged unworkmanlike conduct to yard foreman, the position from which he resigned on August 5, 1943.

On August 3, 1943, the petitioner, a steady workman, reported for work as usual at the appointed hour and found that his work clothes were locked up in a fellow workman's locker which the petitioner was using temporarily until he could be assigned a locker for himself by the general passenger yard master, who ordinarily made such assignments. On August 3, the workman, in whose locker the petitioner's clothes were, had not reported for work. It was raining heavily and the petitioner notified the yard master that he would be unable to work. The next day the petitioner was laid off and on August 5, 1943 was given a hearing before one Switzer, general passenger yard master, whose duty it was to conduct diciplinary hearings. He was notified by Switzer that he would be disciplined for his refusal to work and would be laid off for a period of two weeks. At that point the petitioner asked the assistant yard master for a release from his essential employment with the respondent and was notified he would not be released unless he signed a resignation. This the petitioner did, to take effect at once, and no findings or conclusions were made by Switzer. On August 12, 1943, W. E. Barnet, acting for the respondent, notified the Navy Recruiting Station, at Boston, that the petitioner had tendered his resignation.

There was evidence adduced by the respondent which showed other disciplinary action against the petitioner.

Previous to the above incident, the evidence showed that on June 25, 1943, the petitioner was placed in classification 1-A by his local Selective Service Board. He took a preliminary physical examination and blood test on July 22, 1943. On August 3, 1943, approximately the same day the petitioner was laid off, his classification was changed to 2-B, a classification into which those deferred for occupational reasons were placed.

On August 6, 1943, the day following his resignation, the petitioner, visited the Navy Recruiting Office, in Boston. On the following day he went to the Army Recruiting Office, in Boston. On August 9, 1943 he returned to the Navy Recruiting Office and was told to have his teeth fixed and he would be acceptable to the Navy. He had his teeth fixed and on August 10, 1943, returned to his local Selective Service Board and signed an application for voluntary induction into the armed forces. The records of Local Board No. 13 reflected that he stated at that time it was his intention to join the Seabees. On August 17, 1943 he was inducted into the United States Navy. He began active duty on August 24, 1943.

On November 1, 1945 the petitioner was honorably discharged from the United States Navy. On November 13, 1945 he applied for reinstatement to his former position with the respondent and was refused re-employment. The present action was commenced April 16, 1946, the United States Attorney acting as the petitioner's attorney after application by the petitioner. Section 308(e) of the Act. The delay in commencing suit was in no way attributable to the petitioner. The petitioner earned no wages from the date of his application for re-employment up to and including the date of trial.

No brief was submitted by the respondent, but I understand it relies on two contentions to defeat this action.

First, it contends that Section 8 of the Act applies only to those who have been inducted into the armed forces under the provisions of the Act and not those who enlisted or volunteered for service. There is no merit in this contention. Section 7 of the Service Extension Act of 1941, 50 U.S. C.A.Appendix, § 357, extends the re-employment benefits...