Poling v. Baltimore & Ohio Railroad Company

• Decision Date: 29 September 1958
• Docket Number: 208-E,No. 207-E,211-E,212-E and 213-E.,207-E
• Citation: 166 F. Supp. 710
• Parties: Donald R. POLING, Junior R. McWilliams, James Thomas Turner, Ralph E. Bunner and Jack McLaughlin, Plaintiffs, v. The BALTIMORE & OHIO RAILROAD COMPANY, a corporation, System Federation No. 30 of the Railway Employes' Department of the American Federation of Labor, and others, Defendants.
• Court: U.S. District Court — Northern District of West Virginia

166 F. Supp. 710

Donald R. POLING, Junior R. McWilliams, James Thomas Turner, Ralph E. Bunner and Jack McLaughlin, Plaintiffs, v. The BALTIMORE & OHIO RAILROAD COMPANY, a corporation, System Federation No. 30 of the Railway Employes' Department of the American Federation of Labor, and others, Defendants.

Nos. 207-E, 208-E, 211-E, 212-E and 213-E.

United States District Court N. D. West Virginia, Elkins Division.

September 29, 1958.

Kenneth E. Spencer, Atty., Dept. of Justice, Washington, D. C., and Roderick A. Devison, Asst. U. S. Atty., Fairmont, W. Va., for plaintiffs.

Sydney R. Prince, Baltimore, Md., and Charles W. Yeager, of Steptoe & Johnson, Charleston, W. Va., for defendant Baltimore & O. R. Co.

Richard R. Lyman, of Mulholland, Robie & Hickey, Toledo, Ohio, and William G. Stathers, of Stathers & Cantrall, Clarksburg, W. Va., for all other defendants.

BOREMAN, Judge.

These consolidated cases arise out of claims of employees, returning from military service, to positions and seniority. The actions were first brought in the U. S. District Court, District of New Jersey, in May of 1950, but were transferred to this court for the convenience of the parties and witnesses by order dated June 26, 1950. The proceedings were delayed from time to time over a period of years, apparently without serious objection. System Federation No. 30 of the Railway Employes' Department of the American Federation of Labor, acting in its own behalf and in behalf of all employees of the defendant railroad company who are members of the crafts of employees known as machinists, boiler makers, blacksmiths, sheet metal workers, electrical workers and car men, and approximately twenty-nine named individuals, were permitted to intervene as parties defendant. These intervening defendants filed answers and have actively and consistently contended against the asserted claims of the plaintiffs.

Shortly after entering upon my duties as Judge of this court in 1954, I urged counsel to speed these proceedings but progress has been slow with no apparent desire of either side to hasten the determination of the rights of the parties. Originally there were seven of these actions (each involving the claim of an individual plaintiff), of which four remain for disposition, the other three having been voluntarily dismissed. Following numerous hearings of various motions and objections, the taking of depositions, the taking of testimony before the Court, the presentations of arguments, the filing of briefs and following additional oral arguments, the Court was requested to withhold further consideration pending the decision of the Supreme Court of the United States in the case of McKinney v. Missouri-Kansas-Texas Railroad Company, 357 U.S. 265, 78 S.Ct. 1222, 2 L. Ed.2d 1305. The opinion in that case, written by Mr. Justice Frankfurter, was handed down on June 23, 1958, and counsel here were given the further opportunity to present their views as to the application of that decision to the instant consolidated cases. It appears proper to make this brief explanation of the delay in these proceedings in view of the statutory provision requiring speedy hearing. Considering the similarity of the claims of these plaintiffs, these cases were consolidated, for every purpose, with the Poling case as above styled although the claim of the plaintiff Poling has been dismissed.

The complaints charge that these actions were filed under Section 8(e) of the Selective Training and Service Act of 1940 (54 Stat. 890, 50 U.S.C.A.Appendix, Sec. 308(e)), as amended (56 Stat. 724), and Sec. 7(a) of the Service Extension Act of 1941, as amended (Act of August 18, 1941, c. 362, Sec. 2, 55 Stat. 626; 50 U.S.C.A.Appendix, Sec. 352). Sec. 2, 55 Stat. 626, authorizes the President to extend the periods of training and service, enlistment, etc., of any or all persons inducted for training and service under the Selective Training and Service Act. Sec. 7, 55 Stat. 627, is obviously incorrectly cited as Sec. 7(a). Sec. 7, 55 Stat. 627, preserves and extends re-employment benefits provided in Sec. 8 of the Selective Training and Service Act of 1940 for those entering upon active military or naval service subsequent to May 1, 1940. Certain pertinent sections of the Act provide, in whole or in part, as follows:

"Sec. 8(a). Any person inducted into the land or naval forces under this Act for training and service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service under section 3(b) shall be entitled to a certificate to that effect upon the completion of such period of training and service, which shall include a record of any special proficiency or merit attained. In addition, each such person who is inducted into the land or naval forces under this Act for training and service shall be given a physical examination at the beginning of such training and service; and upon the completion of his period of training and service under section 3(b), each such person shall be given another physical examination and, upon the written request of the person concerned, shall be given a statement of medical record by the War Department: Provided, That such statement shall not contain any reference to mental or other conditions which in the judgment of the Secretary of War or the Secretary of the Navy would prove injurious to the physical or mental health of the person to whom it pertains."

"Sec. 8(b). In the case of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within forty days after he is relieved from such training and service * * *

"(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so."

"Sec. 8(c). Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of training and service in the land or naval forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration."

"Sec. 8(e). In case any private employer fails or refuses to comply with the provisions of subsection (b) or subsection (c), the district court of the United States for the district in which such private employer maintains a place of business shall have power, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, to specifically require such employer to comply with such provisions, and, as an incident thereto, to compensate such person for any loss of wages or benefits suffered by reason of such employer's unlawful action. The court shall order a speedy hearing in any such case and shall advance it on the calendar."

Of the present remaining plaintiffs, James Thomas Turner, Ralph E. Bunner and Junior R. McWilliams entered the employ of the defendant railroad (hereinafter referred to as "B & O"), as laborers at Grafton, West Virginia, on June 20, 1942, September 12, 1942, and September 12, 1942, respectively, and Jack McLaughlin entered the employ of the B & O as a laborer at Gassaway, West Virginia, on March 6, 1943. Grafton and Gassaway are different seniority points within the same division (Monongah) but were under the authority of the division officials stationed at Grafton. These four named plaintiffs left the employ of the B & O to perform training and service in the armed forces of the United States on November 28, 1942, October 13, 1942, May 18, 1943, and July 15, 1943, respectively.

At the time of entrance into the armed forces, each plaintiff held seniority in the laborers' (firemen and oilers) classification as follows: Turner, "Class C" seniority from June 20, 1942; Bunner, "Class C" seniority from September 12, 1942; McWilliams, "Class C" seniority from September 12, 1942, and "Class B" seniority from October 18, 1942; and McLaughlin, "Class C" seniority from March 6, 1943, and "Class B" seniority from March 7, 1943. Each plaintiff satisfactorily completed a period of training and service in the armed forces, made timely application for reinstatement and otherwise qualified for the benefits afforded by the Selective Training and Service Act of 1940, as amended.

Turner was reinstated on November 16, 1945, as a laborer, was promoted to machinist helper on December 10, 1945, and accorded seniority as such as of January 4, 1943. Bunner was reinstated on January 31, 1946, classified as machinist helper, with seniority as such as of January 4, 1943. McWilliams was reinstated on February 18, 1946, classified as a carman helper, with seniority as of June 14, 1943. McLaughlin was reinstated on February 12, 1946, classified as a laborer, was promoted to a position as sheet metal worker helper on July 8, 1946, and was given seniority as such as of June 30, 1944.

While the plaintiffs Turner and Bunner were absent due to military service, one B & O employee, J. W. Bradley, who had a laborer's seniority date of September 17, 1942, was promoted to machinist helper on January 4, 1943, with seniority as of the date of such promotion. The machinist helper seniority date, initially accorded to the plaintiffs, Turner and Bunner,...