Conseglio v. PENNSYLVANIA RAILROAD COMPANY

• Decision Date: 14 November 1962
• Parties: Joseph J. CONSEGLIO, George M. Hannan, Jr., Thomas J. Michaels, Robert J. Moretto, Denis J. O'Shaughnessy and Joseph F. Skelly, Plaintiffs, v. The PENNSYLVANIA RAILROAD COMPANY and Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes, Defendants.
• Court: U.S. District Court — Southern District of New York

211 F. Supp. 567

Joseph J. CONSEGLIO, George M. Hannan, Jr., Thomas J. Michaels, Robert J. Moretto, Denis J. O'Shaughnessy and Joseph F. Skelly, Plaintiffs, v. The PENNSYLVANIA RAILROAD COMPANY and Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes, Defendants.

United States District Court S. D. New York.

November 14, 1962.

Robert M. Morgenthau, U. S. Atty., for Southern Dist. of New York, New York City, for plaintiffs, Thomas H. Baer, Asst. U. S. Atty., of counsel.

Conboy, Hewitt, O'Brien & Boardman, New York City, for defendant, The Pennsylvania RR Co., Edward F. Butler, Reginald Leo Duff, F. Sherwood Alexander, New York City, of counsel.

Joseph A. Marchetti, New York City, Allen S. Olmsted, 2nd, Saul, Ewing, Remick & Saul, Philadelphia, Pa., for defendant, Brotherhood of Ry. and Steamship Clerks, Freight Handlers, Express and Station Employes.

WEINFELD, District Judge.

This is an action by six plaintiffs brought on their behalf by the United States Attorney under the provisions of the Selective Training and Service Act of 1940, as amended,¹ wherein they seek to obtain seniority status higher than that accorded to them by the defendant railroad upon their return from military service during World War II. The union of which they are members has also been named as a defendant.

The plaintiffs seek relief pursuant to section 8 of the Act,² which guarantees a re-employed veteran restoration to his former position without loss of seniority and entitles him to step back on the seniority escalator "at the precise point he would have occupied had he kept his position continuously during the war."³ The Act, however, does not entitle the veteran to an increase in seniority over what he would have had as of right had he not gone into military service.⁴ The defendants, plaintiffs' employer and their union, resist their claims, contending that the plaintiffs seek higher seniority status then that to which they are entitled.

Prior to military service in World War II, plaintiffs were employed in the baggage department of the defendant. Until May 1, 1942 their seniority and promotion rights were governed by a collective bargaining agreement in effect since February 16, 1935. Their job classification came within a group designated in that agreement as "Miscellaneous Forces," with seniority as of the date of entry in the service of the railroad. A separate agreement governed the seniority and promotion rights of the group of employees known as "Clerks." In general, Miscellaneous Forces' positions related to baggage work, whereas Clerks' positions were of a clerical nature, some of which required special skills such as ability to type, knowledge of stenography or training in bookkeeping.

The Miscellaneous Forces' employees, prior to May 1, 1942, had no right to transfer or to promotion to a Clerk's job. Those who applied for and were awarded Clerks' jobs acquired seniority on the Clerks' roster as of the date of the award, but forfeited their seniority on the Miscellaneous Forces' roster. In practical terms this meant that in the event of a reduction in force in the Clerk's position to which such an employee had been appointed, he could not readily regain his prior Miscellaneous Forces' job.

On May 1, 1942 the defendant union, as the bargaining representative of both the Clerks' and Miscellaneous Forces' employees⁵ entered into a single labor agreement, effective that day, covering both groups. Under its terms the employees were divided into two classifications, Group 1 and Group 2. In general, the former "Clerks'" jobs were included in Group 1 and the former "Miscellaneous Forces'" jobs in Group 2. Separate seniority rosters were provided for the two groups. Group 2 employees retained the same seniority dates as those which they previously had on the Miscellaneous Forces' roster.

A Group 2 employee still had no right of promotion or transfer to Group 1 jobs. A significant change, however, was that he could now bid for Group 1 jobs without loss of seniority on the Group 2 roster. In the event a qualified Group 2 employee bid for, and was awarded, a bulletined Group 1 job,⁶ he acquired seniority on the Group 1 roster as of the date he first filled the job. He also retained and continued to accumulate his Group 2 seniority. Thus, unlike the situation which prevailed under the 1935 agreement, a Group 2 employee could achieve dual seniority. Again, in practical terms, this meant that in the event of a reduction in the Group 1 force, the former Group 2 man was in a position to regain his old job in that Group.

On January 23, 1943 the railroad and the union entered into an agreement, referred to as the "Military Service Agreement." This agreement, to be considered hereafter, is on its face a reiteration of the veteran's Federally protected rights under section 8 of the Act.

The plaintiffs, when furloughed for military service, were all in Group 2. Each plaintiff, after discharge from service, was re-employed by the defendant as a Group 2 employee with the same seniority date which he had prior to induction into the Armed Forces; ever since, each has been accorded his Group 2 seniority in conformity with that date.

In addition to their Group 2 seniority, the plaintiffs also achieved Group 1 seniority in consequence of a procedure which was adopted in connection with the Military Service Agreement —a procedure which was restricted to veterans. Shortly after his return to the service of the railroad, each plaintiff, as well as other Group 2 re-employed veterans, was afforded an opportunity to review the Group 1 jobs which had been bulletined and awarded during his absence in the military service to junior Group 2 employees or newly hired employees. Each plaintiff selected therefrom a job for which he was qualified, whereupon he was given a seniority date on the Group 1 roster immediately ahead of the junior man who filled the job. Plaintiffs all claim a higher date than that which they were granted as a result of this procedure, as shown by the following schedule:⁷

                                Group 1   Date Now    Date
                Name           Seniority  Claimed   Furloughed
                O'Shaughnessy  12/13/42   10/28/42  10/28/42*
                Skelly          8/10/42    7/ 9/42   7/ 9/42*
                Hannan          8/10/42    5/ 1/42   2/ 1/42
                Michaels        8/10/42    5/ 1/42   2/ 1/42
                Moretto         3/27/43    2/ 5/43   2/ 5/43*
                Conseglio       8/10/42    5/ 1/42  12/31/41
                

While the rights of the plaintiffs to protection against loss of seniority and promotion benefits by reason of military service derive from the Selective Training and Service Act, the collective bargaining agreements set the frame of reference in passing upon their claims, provided, of course, that such agreements do not contravene the Act.⁸ Plaintiffs acknowledge, as indeed they must, that under the May 1, 1942 agreement, as Group 2 employees they had no right to promotion or transfer to the Group 1 jobs. Rule 2-A-2(a) thereof provided that with respect to new positions or vacancies that were bulletined, "fitness and ability being sufficient, seniority shall govern." A Group 2 employee who bid for a Group 1 position which had been bulletined was awarded it only if he were found qualified by management. Ability was considered prime and if an outside employee had the necessary qualification, he was appointed ahead of a Group 2 employee who bid for the bulletined position but did not have the requisite ability. Had each of these plaintiffs remained with the railroad and not served in the Armed Forces, he would not have acquired Group 1 seniority except by applying for and being awarded a Group 1 job for which, in management's judgment, he was qualified. Since promotion from Group 2 to Group 1 involved a question of managerial judgment, there was no automatic progression under the 1942 agreement. The Court also finds that had these plaintiffs continuously remained with the railroad there was no custom or practice whereby they would have been automatically advanced from Group 2 to Group 1. Thus plaintiffs' claims are barred under McKinney v. Missouri-K.-T. R. R., where the Supreme Court held:⁹

"A veteran is not entitled to demand that he be assigned a position higher than that he formerly held when promotion to such a position depends, not simply on seniority or some other form of automatic progression, but on the exercise of discretion on the part of the employer."

Plaintiffs, however, contend that the McKinney case is no bar, since here they seek neither positions nor promotions, but rather to establish their seniority status which is a substantial "constituent of, but is different from, a right of promotion." This purported distinction centers principally about that feature of the May 1, 1942 agreement already noted, whereby a Group 2 employee who bid for a Group 1 job did not forfeit his seniority status on the Group 2 roster, whether he failed in his bid or was successful. The nub of their contention, as this Court understands it, is that this liberalized bidding provision favorably advanced Group 2 employees' "rights to promotion" by protecting them against the hazards of reduction of working forces. Accordingly, plaintiffs argue that while the May 1, 1942 agreement did not by express terms provide for automatic promotion or transfer to Group 1 positions, it did grant them a bidding opportunity for Group 1 jobs which they were prevented from exercising because they were in military service. Proceeding from this premise, they argue that since under the 1942 agreement seniority governs (the factors of fitness and ability being sufficient), seniority status is a substantial constituent of the "right to promotion" which they are entitled to have declared in this action as of the dates they seek because of the loss of opportunity to bid for the jobs and, as they contend, consequent deprivation of a right of promotion.

The broad thrust of their position, as...