Thompson v. Chesapeake & O. Ry. Co.

• Decision Date: 27 January 1948
• Docket Number: Civ. No. 402.
• Citation: 76 F. Supp. 304
• Parties: THOMPSON v. CHESAPEAKE & O. RY. CO.
• Court: U.S. District Court — Southern District of West Virginia

76 F. Supp. 304

THOMPSON v. CHESAPEAKE & O. RY. CO.

Civ. No. 402.

District Court, S. D. West Virginia.

January 27, 1948.

L. E. Given, U. S. Atty., of Charleston, W. Va., and Philip A. Baer, Asst. U. S. Atty., of Huntington, W. Va., for petitioner.

Fitzpatrick Strickling & Marshall, C. W. Strickling and A. A. Bolen, all of Huntington, W. Va., for respondent.

HARRY E. WATKINS, District Judge.

Does an employee who has been classified and deferred by his draft board as an essential civilian employee at his employer's request, but who resigns from employment in order to volunteer for induction into the armed services, forfeit his statutory right to be restored, on the satisfactory completion of his military service, to the position from which he resigned, or to one of like seniority, status and pay? Petitioner asks that this question be answered in the affirmative. The respondent says that it should be answered in the negative.

There is no dispute as to the facts. The material facts, briefly stated, are as follows: Petitioner entered the service of respondent railway company in 1936 as a laborer. He was promoted from time to time until 1942 when he was made a first-class painter. As of December, 1943, he was married, with three minor dependent children. At the request of respondent, and over his own protest, he was deferred by his local draft board as an employee essential to railroad operations. He attempted to enlist in the military forces, but was told that he could not be accepted unless he was released from deferred status by respondent. Following its general policy in such matters, respondent refused to release him from deferred status, whereupon he wrote respondent as follows: "Effective Saturday April 8, 1944, I am resigning from the system paint forces. I have tried to get released from the Railway Co. in order to join the military forces, but I find I cannot get released, so I am resigning in order to join." Five days later, (April 15, 1944) he entered the United States Navy as a volunteer inductee. He was honorably discharged on October 19, 1945, and six days later made application to respondent for reemployment in the position from which he resigned, or to one of like seniority, status and pay, which request was refused. Respondent offered to employ petitioner as a painter helper with less pay than a first-class painter and with seniority from date of reemployment, which petitioner declined to accept. Petitioner pursued no gainful employment until April 1, 1946 when he accepted employment with a grocery store. On August 15, 1946, counsel for respondent received a letter from the United States Attorney stating that petitioner had applied to that office for aid in securing reinstatement with the railway company, and asking what the position of the railway company would be in the matter. In December, 1946, the railway company replied, and furnished the information requested. On February 13, 1947, this action was instituted 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 reemploy petitioner in his position as first-class painter, and for damages arising out of respondent's failure to reemploy him. The relevant provisions of the Act are as follows:

"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 * * *."

"(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 * * *".

Respondent does not question the fact that petitioner resigned his position with intent to join the military forces. Indeed there could be no other conclusion. The agreed statement of facts shows that when petitioner learned that respondent sought his deferment on occupational grounds, he wrote his local draft board stating that he did not wish to be deferred. When placed in a deferred classification he attempted to enlist in the military forces, but was told that he could not be accepted unless he was released from his deferred status by respondent. When respondent refused to do this, he resigned his position. His letter makes it crystal clear that his resignation was for only one purpose — to join our military forces in the pending emergency. He had learned that in no other manner could he secure immediate induction. Five days after his resignation he was in the Navy.

Respondent says that when he resigned, petitioner forfeited his reemployment rights under the Act; that such resignation of his position, even to make it possible for him to enter the military forces, did not constitute a leaving of his position in order to perform training and service; that he left his employment to acquire a nondeferrable status which he hoped would lead to performance of training and service; that his resignation "was an intermediate step, the necessity for which he well realized in order to thwart the policy of his Government" in deciding which men should serve in essential industry and which men should serve in the military forces; and that "such unwarranted action of petitioner did, by chance, result in the fulfilment of his ultimate desires" to join the Navy. The effect of this argument is to say that Congress intended to give reemployment rights only to persons forced or compelled to leave their civilian jobs because of military training and service required of them under the Act. I see no merit in these contentions.

The same argument was advanced in Hayes v. Boston and Maine R. R., D.C., 66 F.Supp. 371, 374, where an employee was deferred by his draft board as an essential railroad worker. When he could not get released from this deferred classification to enter the military service he resigned his position and was inducted into the military service 12 days later. The District Court said: "The Supreme Court in a recent decision has stated the Act must be liberally construed to protect the veteran, cf. Fishgold v. Sullivan Drydock & Repair Corp., et al. 328 U.S. 275, 66 S.Ct. 1105 90 L. Ed. 1230, and the re-employment benefits of the Act should be extended to a veteran in a deferred class who resigned his employment in order to become available for induction into the armed forces. To become entitled to the re-employment benefits of the Act, it makes no difference, as I read Section 8(b), whether a person resigned his employment before induction or after induction or did not resign at all if he left his employment for the purpose of performing training and service in the armed forces." On appeal the First Circuit Court of Appeals affirmed. Boston & Maine R. R. v. Hayes, 160 F.2d 325, 326. That court said: "It will suffice to point out that § 8(b) of the bill as it was reported by the Committee to the Senate read, as we have italicized it: `In the case of any such person who has left a position or by reason of being so inducted into such forces is required to leave a position' etc. This language clearly gave reemployment rights to those who had previously volunteered, but it seems to us equally clear that it gave such rights only to those who, after the passage of the Act, should be compelled to leave their employment by reason of their induction. But the above provision was amended in the Senate to its present form which is: `In the case of any such person who, in order to perform such training and service, has left or leaves a position', etc., and as so amended the bill passed the Senate and subsequently the House. * * *

"And this interpretation is in accord with the general tenor of the Act. It is not a national service act. It does not attempt to impose over-all controls on the nation's manpower. Its purpose was to increase and train the personnel of the nation's armed forces by compelling military service, and as such, it no doubt tended to discourage volunteering. But it did not go so far as to prevent that practice. On the contrary in § 3(a) it expressly provided that under certain conditions an opportunity to volunteer for induction must be preserved. To be sure one of the conditions imposed is that the volunteer for induction must not be in a deferred classification, but this falls short of prohibiting a man from stepping out of such a classification by leaving his employment.

"We think the court below was correct in interpreting § 8(b) of the Act as granting reemployment rights to any person who resigns from his job as a means of terminating his deferment and thereby making himself available for voluntary induction, provided of course that he does so for the purpose of serving, is accepted, and then actually serves, in the armed forces."

The same question also arose in Bentubo v. Boston, D.C., & M. R. R., 66 F.Supp. 910, and was decided the same way by the same District Judge whose opinion was also affirmed on appeal by the First Circuit Court of Appeals, Boston & M. R. R. v. Bentubo, 160 F.2d 326. There the employee had been placed in IA classification by the local draft board, from which decision his employer appealed. While his case was pending on appeal, he asked the general yard foreman for a release. The petitioner thought this was necessary in order that his application for voluntary induction be accepted. He was refused the release and told that the only way he could get into the armed forces was to resign and lose his reemployment rights. Thereafter he did resign to enter the military service.

A third case, decided by the District Court of the Middle District of Tennessee, on October 24, 1947, holding that the reemployment benefits of the Act should be extended to a veteran in a deferred class who resigned his employment in order to become available for induction into the armed forces is Blackford v. Nashville Gas & Heating Co., D.C., 68...