Britt v. Trailmobile Co., 10892

• Decision Date: 24 January 1950
• Docket Number: No. 10892,10893.,10892
• Citation: 179 F.2d 569
• Parties: BRITT v. TRAILMOBILE CO. MAPPES v. TRAILMOBILE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

179 F.2d 569 (1950)

BRITT v. TRAILMOBILE CO.

MAPPES v. TRAILMOBILE CO.

Nos. 10892, 10893.

United States Court of Appeals Sixth Circuit.

January 24, 1950.

William A. Dammarell, Cincinnati, Ohio (Ray J. O'Donnell, on the brief), for appellants.

Philip J. Schneider, Cincinnati, Ohio (Waite, Schindel & Bayless, Cincinnati, Ohio, on the brief), for appellee.

Before SIMONS, ALLEN and McALLISTER, Circuit Judges.

SIMONS, Circuit Judge.

The appeals are added steps in the litigation by which the Trailmobile Company and the veteran employees of the former Highland Body Manufacturing Company, now merged with it, have been seeking to ascertain their respective rights and obligations under § 8(c) of the Selective Training and Service Act of 1940, 50 U.S. C.A.Appendix, § 308(c). The effort of this court to bring clarity out of confusion began with Trailmobile Co. v. Whirls, 6 Cir., 154 F.2d 866. Whirls had been an employee of the Highland Company, a wholly owned subsidiary of Trailmobile, dating his seniority from his employment in February, 1935. He entered the military service on October 23, 1942, at a time when his employment contract provided for seniority to be determined from the last date of hiring upon a departmental basis. Upon his discharge from the Army he was reemployed in his former capacity. Thereafter, Trailmobile absorbed the Highland Company and assumed all of its obligations, effective January 1, 1944. The 100 employees of Highland were merged with the 1,000 employees of Trailmobile into a single labor group. Originally, as separate units, they had been affiliated with the A. F. of L., but after the consolidation the employees selected the C. I. O. as its collective bargaining agent to negotiate an agreement with the Company for the benefit of all of its employees. The contract, consummated in July, 1944, fixed the seniority rights of the former employees of Highland as of January 1, 1944, without regard to date of employment, while retaining the employment date as a seniority basis for the original employees of Trailmobile.

We affirmed a judgment, D.C., 64 F.Supp. 713, directing the Trailmobile Company to reinstate the seniority of Whirls as of his employment date. We rejected the contention that the Highland employees were new employees of Trailmobile because of the separate corporate entities of the employers, held that an employer may not by contract with a new collective bargaining agency whittle down the statutory rights of an employee to seniority, denied that Hess v. Trailer Company of America, 17 Ohio Supp. 39, is available to the appellee under the doctrine of res adjudicata where decision is governed by an Act of Congress and does not pertain to general common law, and considered the seniority status of Whirls guaranteed by the Selective Training and Service Act as long as the Act remains in effect and Whirls remains in the service of the Company.

The Supreme Court reversed. Trailmobile Co. v. Whirls, 331 U.S. 40, 67 S.Ct. 982, 91 L.Ed. 1328. It considered that we had reached a conclusion contrary to that later reached in Fishgold v. Sullivan Dry Dock and Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110, had held the reemployed veteran entitled to "super-seniority" for one year following his reemployment and a preferred status thereafter, found it unnecessary to pass upon various aspects of the case, including the question of res adjudicata and that of unjust discrimination. It held only that so much of the protection afforded a veteran by § 8 ends as would give the reemployed veteran a preferred standing over employees not veterans having identical seniority rights as of the time of his restoration. It expressly reserved decision upon all other aspects of the case.

While the Whirls case was pending upon appeal Trailmobile, learning that the United States Attorney was preparing many suits for separate adjudication of seniority rights, filed a complaint for declaratory judgment in the District Court for the Southern District of Ohio. This was a class suit in which it was impractical to name all of the parties in the class as defendants, so there was appended to the complaint an exhibit containing the names of all employees. The complaint prayed that their seniority be fixed as provided by the contract of June 22, 1944, with the C. I. O. The district court dismissed the action, 67 F.Supp. 53, whereupon Trailmobile appealed. Meanwhile, the Supreme Court decided the Whirls case. Trailmobile, being in doubt as to whether that case decided all issues presented in its declaratory judgment case, urged that its appeal be determined on its merits. Upon hearing here the government urged that Whirls was not dispositive of other veterans rights. This court disagreed with that contention and affirmed the order of dismissal in a per curiam on the ground that all issues had been adjudicated by the Supreme Court in the Whirls case, Trailmobile Co. v. International Union, C. I. O., 6 Cir., 162 F.2d 720. In the belief that the complaint in the present causes is designed to relitigate the issue of seniority rights there decided, Trailmobile moved the district court in each of the cases here involved, to dismiss the complaint therein on the ground of res adjudicata. The motions were granted and it is from the orders of dismissal that the appellants now prosecute their appeals.

The appellants contend that they presented to the court below by their complaint, issues which were not and could not have been decided in the Whirls case or were there expressly reserved. These issues arise from the alleged discharge of the appellants during the first full year of their reemployment. They contend that during that year they were deprived of ten years of seniority and by reason of such deprivation were refused their former positions, pay and other benefits; that their status was changed while they were in the service by a contract between the company and a new bargaining agency which did not represent them because they were not members of the C. I. O., and in any event that the contract was itself discriminatory. They urge that neither the Whirls case nor our decision in Trailmobile v. International Union, C. I. O., supra, operates to bar their claims as res adjudicata.

We address ourselves first to the issue in repect to seniority rights, since that was mainly argued orally and in briefs. Section 8(c) of the Selective Training and Service Act preserves to the reemployed veteran within the first year of his reemployment, such seniority as he would have had had he not been inducted into the armed services of the United States. The period of such service is to be construed as a furlough from his employment and not as a separation therefrom. The Whirls case holds that he is entitled to such seniority as he would have had had he remained at his post, but that he is entitled to no greater seniority than his fellow employees in comparable positions, and that to give him priority over the non-veteran employees of Highland would have afforded him super-seniority, which is not within either the purpose or terms of the section. Whatever doubt may have arisen from the extended discussion in the Whirls case in the light of the Fishgold case, has now been set at rest by the rationalization in Oakley v. Louisville & Nashville R. Co., 338 U.S. 278, 70 S.Ct. 119, 122. There it is said that the Fishgold...