Alber v. Norfolk & Western Ry. Co.
| Decision Date | 03 August 1981 |
| Docket Number | No. 80-1379,80-1379 |
| Citation | 654 F.2d 1271 |
| Parties | 107 L.R.R.M. (BNA) 3233, 92 Lab.Cas. P 12,929 Richard N. ALBER, Appellant, v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Richard Alber, pro se.
Robert D. Tucker, Schoenbeck, Tucker & Schoenbeck, St. Louis, Mo., for appellee.
Before LAY, Chief Judge, GIBSON, Senior Circuit Judge, and HEANEY, Circuit Judge.
Richard N. Alber appeals the district court's dismissal of his action under the Vietnam Era Veterans' Readjustment Assistance Act, 38 U.S.C. § 2021 et seq. (VEVRA). We reverse and remand for further proceedings. 489 F.Supp. 654.
Alber began working for Norfolk & Western Railway Company (N & W) on September 21, 1965, as a file clerk. On July 15, 1966, he was drafted into the armed forces and given a leave of absence by N & W. Alber was discharged by the military with a certificate of satisfactory service on July 19, 1968, and returned to employment at N & W on July 23, 1968. On the date Alber returned, N & W permitted him to exercise his seniority date of September 21, 1965, and take any position in the St. Louis accounting department which was held by an employee junior to him on the seniority roster at the time of his return. Shortly after his return to work, Alber voluntarily transferred to the N & W's engineering department in St. Louis; the new position paid less than the accounting department position which Alber assumed upon his return from military service. Alber worked in N & W's engineering and accounting departments until he was furloughed in 1977 because of a reduction in force.
Alber's claims for benefits under VEVRA are based on a series of written labor agreements. First, a 1953 collective bargaining agreement between the Wabash Railroad Company 1 and its employees required N & W to bulletin new positions or vacancies in accessible places so employees could bid for the assignment. That agreement required that employees returning from an absence longer than thirty days must be given the option of: (1) returning to their former position (provided the position had not been abolished or that the employee had not been displaced from that position by a senior employee); or (2) exercising seniority rights on "any position * * * bulletined during his absence." 2
Seniority and promotion is governed by Rule 15 of the 1953 Agreement. The district court stated that, under Rule 15, "seniority rights were to be exercised within geographically defined seniority districts." Alber v. Norfolk & Western Railway Co., 489 F.Supp. 654, 655 (E.D.Mo.1980). We cannot agree that the Rule's language requires that conclusion. 3 Moreover, other A second series of agreements were executed when several railroad companies were merged in 1964 to form the N & W. See n.1, supra. An April 17, 1965, Memorandum Agreement bound N & W and its employees' union to execute an implementing agreement providing for the transfer and use of employees and the allocation or rearrangement of forces made necessary by the merger. The implementing agreement, dated December 2, 1965, allowed N & W to transfer clerical positions throughout its rail system. 4 Employees who elected not to transfer with their positions were given a protected "utility status" that granted them a minimum pay rate of no less than the position transferred and permanent protection from layoffs.
provisions of the 1953 Agreement, not mentioned by the district court, expressly permit employees to: (1) bid on all bulletined positions, including more than one position at a time; (2) apply for positions bulletined in other districts or on other rosters; and (3) retain their positions and seniority when transferred with their positions from one seniority district or roster to another.
The implementing agreement was superceded by an April 29, 1976, agreement. The latter agreement provided, in part, that protected employees could resign their positions in writing before May 31, 1976. In return, and in lieu of all other benefits and protections accorded them, the employees would receive a lump sum separation allowance from N & W.
Alber's legal claims were summarized by the district court as follows:
On July 15, 1966, Alber was drafted into the Armed Forces and was given a leave of absence by defendant. During Alber's service (absence) Norfolk bulletined several positions in its St. Louis seniority district for bids by employees, including the Interline Clerk position. The position was filled by Evans, an employee junior in seniority to Alber. On August 1, 1967, prior to plaintiff's return from the service, the position was transferred to Virginia. Evans elected not to transfer to Virginia and thus became a "protected" utility employee under Memo 1965. When Alber returned to Norfolk from the service on July 23, 1968, he was offered a choice of positions from among those then available in the St. Louis seniority district. Alber was not offered the Interline Clerk position or Evans' utility status. Plaintiff chose the highest listed position offered.
On May 1, 1976, Memo 1976 canceled Memo 1965 and granted transfer protected employees a lump sum severance allowance if they would resign on or before May 31, 1976. Alber offered to resign on May 7, 1976, claiming transfer protection on the theory that had he been able to bid on the bulletin for Interline Switching Clerk during his military service he would have received that position and its subsequent transfer protection. Norfolk denied plaintiff's claim and this suit followed.
Alber v. Norfolk & Western Railway Co., supra, 489 F.Supp. at 655-656 (emphasis added).
The district court entered judgment for N & W on two alternative grounds: (1) Alber's claims were barred by the doctrine of laches; and (2) on the merits, there was no violation of VEVRA or the labor agreements. In our view, neither ground supports the judgment of the district court.
The district court ruled that Alber "inexcusably delayed" bringing suit, and that that delay prejudiced N & W. The court stated that upon his return from military service in 1968, "Alber asserted neither statutory reemployment rights nor (1953) Contract Rule 17(b) rights (to bid upon all positions posted in his absence) in spite of Union representation." It also recognized This Court finds, however, that the lump sum severance here sought is simply one of a series of compensatory rights offered employees affected by merger transfers, and that plaintiff's interest in merger protection benefits is quite belated. There has been no claim that plaintiff, who began working for Norfolk approximately two months before merger protection became available, did not know of those special benefits when he left for the service in 1966. Plaintiff's claim that Norfolk had a duty to inform Alber of his statutory rights does not explain why Alber did not seek contractual merger protection rights in other forms over the eleven years prior to this suit.
that VEVRA is liberally construed and that laches is to be applied sparingly in VEVRA cases. Finally, it conceded that Alber's suit was brought primarily to recover a benefit (a lump sum separation allowance) first made available in 1976. Nevertheless, the district court concluded that the laches doctrine barred Alber's suit. It reasoned:
Alber v. Norfolk & Western Railway Co., supra, 489 F.Supp. at 656.
The district court determined that Alber's "delay in seeking merger protection status" neutralized the ability of either the defendant or the trial court to examine Alber's assertion that he would have bid on the Interline Switching Clerk position which opened during his absence. Thus, the district court based its laches ruling on a conclusion that the eight-year time lapse resulted in a loss of available and necessary evidence.
Although the existence of laches is a question primarily addressed to the trial court's discretion, its decision is not "unfettered by appropriate standards or shielded from thorough appellate review." Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 804 (8th Cir. 1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980). We conclude that the district court abused its discretion in applying the doctrine of laches.
Upon his return from military service, N & W offered Alber only those positions which were presently available in the St. Louis seniority district. It is clear that Alber was not offered any positions which were bulletined during his absence and it is equally clear that the 1953 Agreement made all positions bulletined during Alber's military absence open to bidding upon his return. In our judgment, N & W had an affirmative contractual duty to inform Alber of all positions bulletined during his absence. 5 Therefore, any prejudice, i. e., loss of evidence relating to whether Alber would have selected a particular bulletined position, resulting from the eight-year time passage was solely attributable to N & W.
Moreover, on May 7, 1976, Alber offered to resign in return for a lump sum separation allowance. The option to resign for a lump sum severance allowance was first offered in the April 29, 1976, agreement. Indeed, the district court recognized that the lump sum benefit first became available in 1976. Alber contends that it was not until 1976 that he learned that persons junior to him had obtained protected status during his military absence which entitled them to the lump sum option. N & W does not contend that it informed Alber of the previously bulletined positions. We find Alber's contention persuasive. In short, the district court required too much of Alber, and these facts do not support its application of the laches defense. We hold, therefore, that the laches doctrine does not bar Alber's suit.
The operative provision of VEVRA is 38 U.S.C. § 2021. In Coffy v. Republic Steel Corp., 447 U.S. 191, 100 S.Ct. 2100, 65...
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