Hall v. CHICAGO & EASTERN ILL. RAILROAD CO.
| Decision Date | 13 October 1964 |
| Docket Number | No. 64 C 274.,64 C 274. |
| Citation | 240 F. Supp. 797 |
| Parties | Larry HALL, Plaintiff, v. CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Edward V. Hanrahan, U. S. Atty., Gilbert Drucker, Asst. U. S. Atty., Chicago, Ill., for plaintiff. Herman Grant, Regional Atty., Paul E. Myerson, Charles P. Rippey, Attys., Dept. of Labor, Chicago, Ill., of counsel.
Walter D. Cummings, Frank E. Glowacki, Chicago Heights, Ill., for defendant.
This is an action by a veteran against his former employer, a railroad, under the Universal Military Training Act, 50 U.S.C. App. § 459, for restoration of lost seniority, status and pay by reason of the railroad's refusal to re-employ him. Plaintiff is represented by the United States Attorney for the Northern District of Illinois, and the United States Department of Labor.
For approximately three years between 1955 and 1958, Larry Hall, plaintiff herein, served on active duty with the United States Army.
Hall was first employed by the defendant-railroad in March of 1959, as a switchman, a position which was other than temporary. In August of 1959, he was placed in a layoff status by the railroad with recall rights under the collective bargaining agreement.
The veteran re-enlisted in the Army on February 19, 1960, served on active duty until January 25, 1963, and received a Certificate of Discharge under honorable conditions. In April of 1960, while Hall was still in the Army, the employer sent a recall notice to his last known address ordering him to report back to work within ten days. The veteran did not respond to this notice and the employer removed his name from their seniority roster and terminated his employment for failure to respond.
In March of 1963, the veteran applied to the employer for reinstatement under the Re-employment Rights Section of The Universal Military Training Act, 50 United States Code App. § 459, and was refused. Subsequently, he brought this action.
The parties engaged in extensive discovery, culminating in cross-motions for summary judgment under Rule 56, F.R.Civ.P. on the issue of liability. The motions are now before the Court for disposition.
The railroad contends that the veteran is barred from re-employment (1) for failure to respond to the recall notice of April 1960, and (2) on the ground that Hall had removed himself from the protection of the re-employment statutes by voluntarily exceeding four years of active military duty between June 24, 1948, and August 1, 1961. In support of the latter position, the employer cites Section 9(g) (1) of the Act, which provides:
"Any person who after entering the employment to which he claims restoration, enlists in the Armed Forces of the United States (other than in a reserve component) shall be entitled upon release from service under honorable conditions to all the reemployment rights and other benefits provided for by this section in the case of persons inducted under the provisions of this title, if the total of his service performed between June 24, 1948, and August 1, 1961, did not exceed four years, and the total of any service, additional or otherwise, performed by him after August 1, 1961, does not exceed four years (plus in each case any period of additional service imposed pursuant to law)."
The veteran does not deny that he served a total of more than four years in the service. Instead, he contends that the four year statutory limitation applies only to military service performed after he became an employee of the railroad. Defendant, on the other hand, argues that all of plaintiff's military service, including service prior to the employment, should be added together in computing the four year limitation period.
The railroad's first contention is wholly without merit. A person who enters upon military service while in a laid-off status from an employer does not lose his right to reinstatement when reached for recall during his military service. Kelly v. Ford Instrument Co., Div. of Sperry Rand Corp., 298 F.2d 399 (2d Cir. 1962).
The railroad's second contention raises a problem of statutory interpretation. The issue is one of first impression and has far reaching implications and application. This is particularly true in view of the general unrest in the world we live in and the conflicting necessity of balancing both the need of preserving the morale of members of our Armed Forces, and the right of the employer to know what his rights, duties and obligations are to returning servicemen seeking re-employment.
Defendant submits that the plain language of the Act supports its position. It is true that the four-year provision is not expressly qualified to apply only to service subsequent to employment. Plaintiff contends, however, that the statutory phrase "after entering the employment" means that only service subsequent to employment is to be computed in the four-year total. Defendant, on the other hand, argues that the phrase bears no relationship to the four-year period, but...
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