Grubbs v. Ingalls Iron Works Co., 5671.

• Decision Date: 19 June 1946
• Docket Number: No. 5671.,5671.
• Parties: GRUBBS v. INGALLS IRON WORKS CO.
• Court: U.S. District Court — Northern District of Alabama

66 F. Supp. 550

GRUBBS v. INGALLS IRON WORKS CO.

No. 5671.

District Court, N. D. Alabama, S. D.

June 19, 1946.

John D. Hill, U. S. Atty., and William H. Burton, Jr., and W. R. Bradford, Asst. U. S. Attys., all of Birmingham, Ala., for plaintiff.

Lange, Simpson, Robinson & Somerville, Reid B. Barnes, and D. W. Strickland, all of Birmingham, Ala., for defendant.

LYNNE, District Judge.

Petitioner is an employee of The Ingalls Iron Works Company, a corporation. He entered its employ on the second day of February, 1942, and worked for it at its Southside Plant in the city of Birmingham, Alabama, in the capacity of Layerout, first class, on the first shift (hereinafter referred to as the day shift) until he was inducted into the Navy on the fifteenth day of May, 1943. He served in the Navy until the thirtieth day of September, 1944, on which date he was honorably discharged and received a certificate to that effect. On the ninth day of October, 1944, at which time he was still qualified to perform the duties of a Layerout, first class, he applied to the respondent corporation, as was his right under the Selective Training and Service Act of 1940, 54 Stat. 885, 50 U.S.C.A.Appendix, § 301 et seq.; for restoration to his former position. He was directed by an authorized personnel officer of respondent to report to respondent's Southside Plant on the sixteenth day of October, 1944, for work on the day shift in his former capacity.

Between the ninth and sixteenth days of October, 1944, petitioner informed the Superintendent of respondent's Southside Plant of the directions he had received from respondent's personnel officer and was told by said Superintendent that he would not restore petitioner to work on the day shift but would place him on the second shift (hereinafter referred to as the night shift) on the sixteenth day of October, 1944. Thereafter, petitioner did not report for work on the latter date and remained without employment until the first day of November, 1944, when he was reemployed by respondent as a Layerout, first class, on the day shift.

Thereupon, petitioner brought this suit, pursuant to Section 8(c) of the Act, to obtain a declaratory judgment as to his rights under the Act and to obtain compensation for the fourteen days he was not allowed to work, of which action this Court has jurisdiction. Respondent answered, justifying its action on the grounds that petitioner was a temporary employee within the exception provided in Section 8(b) of the Act; that he was reemployed in his former position within a reasonable length of time, and that its offer to reemploy him as a Layerout, first class, on the night shift, commencing on the sixteenth day of October, 1944, constituted a bona fide offer to restore him to his former position or to a position of like seniority, status and pay within the contemplation of Section 8(b) (B) of the Act.

At all times material to this suit, petitioner was a member of Shopmen's Local No. 539 of the International Association of Bridge, Structural and Ornamental Iron Workers, Birmingham, Alabama, which union was the bargaining agency for the shop employees of respondent corporation, and had in effect with respondent, at all times material to this action, valid collective bargaining agreements. Under the terms of such contracts and under the classification and seniority schedules, published by respondent and approved by the union thereunder, petitioner is shown to have acquired a seniority classification as a Layerout, first class, with respondent as of the twenty-fourth day of February, 1942.

There is no provision in the collective bargaining agreement in effect either on the date of petitioner's induction into the Navy or on the date of his application for reemployment which recognizes that preference of assignment to either the day or night shift is an incident of seniority. It appears from the evidence that on each of said dates respondent had the unqualified right to assign its employees either to the day shift or to the night shift, irrespective of their seniorities or individual desires in the matter. There was no differential in the pay of Layersout, first class, assigned to the day shift and those assigned to the night shift.

Petitioner attributes his preference for assignment to the day shift to several factors. He resided more than eight miles from respondent's plant and, at the conclusion of work on the night shift, transportation to his home was both slow and uncertain, since he had sold his car when he was inducted into the service and was entirely dependent upon public conveyances. The duties of his position required the constant reading of blue prints and the artificial lights in respondent's plant were hard on his eyes. Finally, his nervous system had been upset by his service in the Navy and he could obtain more refreshing rest by sleeping during the hours of the night than during those of the day.

On the sixteenth day of October, 1944, there was at least one Layerout, first class, assigned to the day shift who was inferior in seniority to petitioner, who was never inducted into the armed services, and who was assigned to the night shift on the date of petitioner's induction. Upon the reemployment of petitioner and his assignment to the day shift on the first day of November, 1944, such other employee was reassigned to the night shift. Shortly thereafter, he left respondent's employ, presumably as a protest against such reassignment.

It was stipulated by the parties upon the trial of this cause that if petitioner is entitled to a recovery in this action, the amount of compensation for the fourteen days involved herein would be $133.81.

On the eleventh day of February, 1942, within a few days after the date of his original employment, petitioner was required to sign a written acknowledgment that he was hired solely on a temporary basis and that he would not be entitled to seniority rights enjoyed by regular employees.

The contention that petitioner held a temporary position with respondent immediately prior to his induction into the Navy, and is therefore precluded from the benefits of the Act because of the exception established by Section 8(b) thereof, is without merit. The evidence establishes that his employment in the same classification was continuous from the second day of February, 1942, to the date of his induction, the fifteenth day of May, 1943. Under the...