Brickner v. Johnson Motors
Decision Date | 30 April 1970 |
Docket Number | No. 17828.,17828. |
Citation | 425 F.2d 75 |
Parties | David J. BRICKNER, Plaintiff-Appellee, v. JOHNSON MOTORS, a Division of Outboard Marine Corporation, Defendant-Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
Charles R. Sprowl, Michael D. Aufrecht, Chicago, Ill., for defendant-appellant; Taylor, Miller, Magner, Sprowl & Hutchings, Chicago, Ill., of counsel.
Alan S. Rosenthal, William D. Appler, Attys., Dept. of Justice, Washington, D. C., Thomas A. Foran, U. S. Atty., Chicago, Ill., William D. Ruckelshaus, Asst. Atty. Gen., for plaintiff-appellee.
Before CASTLE, Senior Circuit Judge, and KILEY and KERNER, Circuit Judges.
David J. Brickner, an honorably discharged veteran, filed a complaint under Section 9 of the Military Selective Service Act (Act) of 1967 (50 U.S.C. App. § 459) seeking the establishment of seniority from the date of his original employment.
Johnson Motors (Johnson) initially employed Brickner as a packer on September 8, 1965, in the shipping department. The labor agreement then in force provided that The agreement reserved to Johnson the authority to transfer, change classification, change rate of pay, or discharge such employee during the probationary period.
After 44 calendar days (33 working days), Brickner entered the military service for a two-year period, returning to his position as a packer with Johnson on October 30, 1967. Brickner, when reemployed, was designed a new employee and was required to serve a new probationary period. Having satisfactorily served this period, he was granted seniority as of October 30, 1967 (the date of reemployment), not as of September 8, 1965, the date of original employment with Johnson.
50 U.S.C. App. § 459(b) (§ 9 of the Act) provides in relevant part:
The original complaint was filed by the United States Attorney seeking the advancement of the seniority date by virtue of Section 9 of the Act. Johnson responded, contending that since Brickner had not completed the ninety (90) day probationary period before entering military service, he was in a "temporary position," an exception under the Act. The district court took the matter for determination on the pleadings, stipulations, memoranda, and motions for summary judgment. Summary judgment was entered in favor of Brickner, the court holding his job to be "other than a temporary position" under the Act.
This Court in Lesher v. P. R. Mallory & Co., Inc., 166 F.2d 983 (7th Cir.1948), in a fact situation almost identical to the present case, held that plaintiff's position was a temporary position and not within the protection of the Act. In interpreting the meaning of "other than temporary position" the Lesher court rejected the contention that the phrase referred to whether the position itself was temporary or permanent but instead interpreted the phrase to refer to the individual relationship between the employer and employee.
We reject this court's earlier interpretation of the phrase "other than temporary" contained in our decision in Lesher. Instead we establish a two-part test for determining whether a position is "other than temporary." First it must be determined whether the nature of the position itself is permanent or temporary. Cf. Foor v. Torrington Co., 170 F.2d 487 (7th Cir.1948); see also Moe v. Eastern Air Lines, 246 F.2d 215, 219 (5th Cir.1957); Congressional debate, 86 Cong.Rec. 11030. If it is determined that the position itself is temporary then the employee is excluded from the coverage of the Act. If, however, the job is permanent, the employee must...
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