Droste v. Nash-Kelvinator Corporation, 5010.

• Decision Date: 30 January 1946
• Docket Number: No. 5010.,5010.
• Citation: 64 F. Supp. 716
• Parties: DROSTE v. NASH-KELVINATOR CORPORATION (INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) et al., Intervenors).
• Court: U.S. District Court — Western District of Michigan

64 F. Supp. 716

DROSTE v. NASH-KELVINATOR CORPORATION (INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) et al., Intervenors).

No. 5010.

District Court, E. D. Michigan, S. D.

January 30, 1946.

John C. Lehr, U. S. Dist. Atty., and Morris Zwerdling, Asst. U. S. Dist. Atty., both of Detroit, Mich., for plaintiff.

Cook, Smith, Jacobs & Beake, of Detroit, Mich. (Grant L. Cook and Sydney A. Jacobs, both of Detroit, Mich., of counsel), for defendant.

Ernest Goodman, of Detroit, Mich., for the Union.

Boniface R. Maile, of Detroit, Mich., for Veterans of Foreign Wars.

LEDERLE, District Judge.

Findings of Fact

1. This complaint was filed by the United States District Attorney to compel the defendant, Nash-Kelvinator Corporation, to restore a position to plaintiff, George Arnold Droste, a World War II Veteran whose employment with defendant had been interrupted after seven months' employment by a year's period in the armed services, and to compensate him for loss of wages claimed to be due him because of the alleged failure of the defendant to comply with the provisions of Section 8 of the Selective Training and Service Act of 1940, as amended 50 U.S.C.A.Appendix, § 308, herein referred to as the Act. The defendant has acted in good faith in accordance with its conception of the proper interpretation of the Act.

2. Upon motion, and with the consent of both parties, the International Union, United Automobile, Aircraft, Agricultural Implement Workers of America (UAW-CIO) and Local No. 13, International Union, United Automobile Aircraft, Agricultural Implement Workers of America (UAW-CIO), herein referred to as the Union, of which plaintiff is a member, were permitted to intervene early in the pendency of this action. This organization has an employment contract with the defendant, and it likewise contends that the actions taken by defendant were in accordance with the Act.

3. Upon motion made a few days after trial, the Wayne County Council, Veterans of Foreign Wars, with a local membership of 20,000 veterans composed of 25% veterans of former wars and 75% veterans of World War II, was permitted to file a brief amicus curiae, in which it supported the position of plaintiff that World War II veterans were entitled to the so-called "super-seniority" over all other employees of an employer, including veterans of other wars.

4. The material facts involved in this case are not in dispute. Most of them were incorporated in a stipulation of facts, which is hereby adopted as part of these findings.

5. In 1942 the defendant began the operation of a plant in the City of Lansing, Mich., under contract with the United States Government, for the manufacture of aircraft propellers. The plant, machinery and equipment were owned by the Government, and the defendant managed and operated the plant on a cost-plus-a-fixed-fee basis until August 17, 1945, when the contract was terminated and operation in the plant ceased. The plaintiff was employed by defendant in this plant from May 4, 1943, until November 30, 1943, when he was inducted into military service in accordance with the provisions of the Act.

6. The National Labor Relations Board certified the Union as the exclusive bargaining representative for this plant, and Local No. 13 entered into a contract with the defendant. The plaintiff was a member of the Union, and, in accordance with the terms of the contract, was classified as a production employee. The Union contract contained detailed and specific provisions as to the seniority of the various production employees, both as to job classification and as to the entire plant. On November 30, 1943, the plaintiff was working as a camber grinder, classification YD-2, at the rate of pay of $1.39 per hour, with a 5¢ hourly bonus for working on the night shift. His seniority in this classification dated from July 19, 1943, and his plant-wide seniority dated from May 5, 1943, the date of his first employment by defendant.

7. The plaintiff received an honorable discharge from the United States Army on November 2, 1944. On November 29, 1944, he made application to the defendant for restoration to his former position as camber grinder. It is conceded that throughout the period here involved he was qualified to perform the duties of that position. On November 30, 1944, defendant restored plaintiff to his former position as camber grinder. His seniority status in this classification was established by defendant adding to his four months' seniority as camber grinder at the time he entered military service one year's additional seniority computed on the basis of the length of his period of military training and service.

8. Plaintiff continued to work as a camber grinder at the same rate of pay until January 15, 1945. On that date, plaintiff was the forty-ninth employee in line of seniority in the camber grinder classification, in accordance with the provisions of the Union contract. On January 15, 1945, defendant retained other employees, who were not veterans of World War II, in the camber grinder classification, all of whom had worked longer in that classification than the year and four months covered by plaintiff's actual employment in that classification plus his one year's military service. On that date, defendant was ready and willing to employ plaintiff in the job classification to which his plant-wide seniority would entitle him and for which he could qualify, in accordance with the Union contract. At his request, he was granted a leave of absence to obtain employment with another employer, with the understanding that he would retain all of his rights under the Union contract. On January 27, 1945, the plaintiff accepted employment at the defendant's plant in the classification to which his plant-wide seniority entitled him, at a lower rate of pay than he would have received had he continued to work as a camber grinder. He continued to work for defendant in various classifications until May 28, 1945, upon which date he voluntarily quit. During all of the time plaintiff was not employed by the defendant, he was continued on its seniority list. On July 25, 1945, he was recalled by defendant and employed as a camber grinder at $1.39 per hour until August 17, 1945, when the manufacturing operations at the defendant's plant were terminated.

9. During the period of plaintiff's absence from defendant's plant, he was considered as being on furlough or leave of absence and was allowed all of the benefits offered by the employer, pursuant to the established rules and practices relating to employees on furlough or leave of absence, in accordance with the Union contract. Had plaintiff been willing to accept a position to which he would have been entitled under the terms of the Union contract, he would not have lost any time, but would have been compelled to accept pay at a lower rate than he was receiving as a camber grinder, and a position in a lower classification.

10. The plaintiff contends that the Act entitled him to employment as a camber grinder at $1.39 per hour so long as defendant employed any camber grinders in that plant, except other veterans of World War II of greater seniority. In other words, he claims when he was restored to his position, he should have been given a position on the seniority list ahead of all employees who were not veterans of World War II.

11. Plaintiff claims that he is entitled to recover in this action the difference between the wages he received from defendant between January 15, 1945, and July 25, 1945, and the amount he would have earned if he had worked as a camber grinder at the prevailing rate of pay during that entire period. No claim is advanced by plaintiff for the balance of the one-year period following his discharge from the army when the defendant was not operating the Lansing plant, namely, from August 14, 1945, to November, 1945.

Conclusions of Law

1. Jurisdiction of this action is conferred upon this court by Section 8, subsection (e) of the Act, 50 U.S.C.A.Appendix, § 308(e); Hall v. Union Light, etc., Co., D.C., 53 F.Supp. 817.

2. The solution of the problem presented by this case requires a construction of subsections (b) (B) and (c) of Section 8 of the Act, 50 U.S.C.A.Appendix, § 308(b) (B) and (c), which read as follows:

"(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within forty days after he is relieved from such training and service

* * * * * *

"(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so;

* * * * * *

"(c) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of training and service in the land or naval forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration."

3. The policy of the Act is stated in Section 1(b), 50 U.S.C.A.Appendix, § 301 (b), to be that, "the obligations and privileges of military training and service should be shared generally in accordance with a fair and just system * * *."

4. Genera...