Hembree v. Georgia Power Co.

• Decision Date: 20 February 1981
• Docket Number: No. 80-7054,80-7054
• Citation: 637 F.2d 423
• Parties: 106 L.R.R.M. (BNA) 2535, 90 Lab.Cas. P 12,579 William G. HEMBREE, Plaintiff-Appellee-Cross-Appellant, v. GEORGIA POWER COMPANY, Defendant-Appellant-Cross-Appellee. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 423

637 F.2d 423

106 L.R.R.M. (BNA) 2535, 90 Lab.Cas. P 12,579

William G. HEMBREE, Plaintiff-Appellee-Cross-Appellant, v. GEORGIA POWER COMPANY, Defendant-Appellant-Cross-Appellee.

No. 80-7054.

United States Court of Appeals, Fifth Circuit.

Unit B

Feb. 20, 1981.

J. Lewis Sapp, David C. Hagaman, Robert H. Buckler, Atlanta, Ga., for defendant-appellant-cross-appellee.

Patrick M. Scanlon, Donald R. Livingston, Atlanta, Ga., for IBEW 84, amicus curiae.

William L. Harper, U. S. Atty., Wm. H. Berger, U. S. Dept. of Labor, Atlanta, Ga., Alice Daniel, Robert E. Kopp, Asst. Attys. Gen., U. S. Dept. of Justice, Helene R. Boetticher, Susan M. Webman, Attys., Carin A. Clauss, Sol. of Labor, Beate Bloch, Bobbye Spears, U. S. Dept. of Labor, Washington, D. C., for plaintiff-appellee-cross-appellant.

Appeals from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and FRANK M. JOHNSON, Jr., Circuit Judges, and ALLGOOD ^*, District Judge.

FRANK M. JOHNSON, Jr., Circuit Judge:

In 1972 plaintiff was employed by defendant Georgia Power Company (the Company) in an other than temporary position in the Company's General Repair Shop. At that time, he terminated his employment in order to enter the armed forces. In 1974, while serving in active duty, plaintiff sustained an injury which left him functionally blind in one eye; he was subsequently honorably discharged. Plaintiff then sought reemployment with the Company as an apprentice electrician. At the time he applied for reinstatement, plaintiff had accumulated enough seniority to entitle him to bid on an apprentice position in any of the lines of progression in the General Repair Shop, including the position of apprentice electrician. However, medical recommendations of two company-designated doctors indicated that plaintiff's disability would disable him from safely performing the duties of apprentice electrician. Relying on these recommendations, the Company employed plaintiff as a Clerk B in the Parts Replacement Warehouse. ¹ Plaintiff was the only clerk in that warehouse. After about six months, plaintiff expressed concern about working alone, and he requested and received an assignment to a Clerk B position in the General Repair Shop. The Clerk B position in the Parts Replacement Warehouse was later upgraded in pay.

In August, 1975, plaintiff contacted the Department of Labor, claiming that he had not been properly reemployed by the Company as required by the Veterans' Reemployment Rights Act, 38 U.S.C. § 2021, et seq. Plaintiff contended that he should have been reemployed as an apprentice electrician. At the request of the Department of Labor, the company-designated physician again examined plaintiff and again concluded that plaintiff could not safely perform some of the duties of an apprentice electrician.

In September, 1975, the Company referred plaintiff to its Communications Department concerning an opening in the Communications Technician line of progression. A prerequisite to this position was a Second Class FCC license, which plaintiff did not have. Plaintiff twice attempted to pass the examination for the license, but was unsuccessful both times. Thus, plaintiff never formally qualified for this position.

In May, 1976, the Company urged plaintiff to bid on an opening in the Meterman C position in the Central Meter Shop. Plaintiff bid on this position, but qualified his bid to state that he would not relinquish his pursuit of the apprentice electrician's job. Company officials informed plaintiff, the bidder with the highest seniority, that he could have the position. The officials, however, also told plaintiff that they did not want him to transfer to the Central Meter Shop as an apprentice electrician. They informed plaintiff that, pursuant to the collective bargaining agreement, if he transferred he would retain his departmental seniority in the General Repair Shop for layoff purposes, but would begin with no departmental seniority in the Central Meter Shop. Plaintiff refused to accept the Meterman C position and informed Company officials that he intended to pursue the apprentice electrician's position through the Department of Labor. Plaintiff remained in his position as Clerk B in the General Repair Shop; from this position he was later promoted to Clerk A.

Plaintiff, represented by the Department of Labor, filed this action, contending that his reemployment did not comply with the Veterans' Reemployment Rights Act because he was not placed in a position of "like seniority, status, and pay, or the nearest approximation thereof." Concluding that the Company had not complied with the Act, the district court ordered the Company to employ plaintiff in the Central Meter Shop in the highest position for which he was at that time qualified, with departmental seniority dating from his original employment. However, observing that defendant attempted in good faith to comply with the Act, the district court denied plaintiff's prayer for prejudgment interest. Defendant Company appeals the judgment of liability and the calculation of the back pay award, and plaintiff cross-appeals the denial of prejudgment interest. In addition, the International Brotherhood of Electrical Workers, Local Union No. 84, as amicus curiae, urges that the district court erred by granting plaintiff seniority from the date of original employment. We affirm in part and reverse in part.

The Veterans' Reemployment Rights Act was originally enacted in 1940 to provide special protections to veterans returning from the military service. ² By requiring former employers of veterans to reinstate returning veterans to "such (former) position or to a position of like seniority, status, and pay," 38 U.S.C. § 2021(a)(B)(i), Congress mandated that the veteran "who was called to the colors was not to be penalized on his return by reason of his absence from his civilian job ... (and was) ... to gain ... an advantage which the law withheld from those who stayed behind." Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 284, 66 S.Ct. 1105, 1110, 90 L.Ed. 1230 (1946). The Act was interpreted to entitle a returning veteran to "a position which, on the moving escalator of terms and conditions affecting that particular (pre-service) employment, would be comparable to the position which he would have held if he had remained continuously in his civilian employment." Oakley v. Louisville & Nashville Railroad, 338 U.S. 278, 283, 70 S.Ct. 119, 122, 94 L.Ed. 87 (1949).

While the original statute provided adequate employment protection for a nondisabled veteran, Congress soon recognized that the disabled veteran needed additional protection. See generally S.Rep.No.1268, 80th Cong., 2d Sess. 16 (1948). In 1948 Congress amended the Act to require that a returning, disabled veteran if not qualified to perform the duties of such (former) position, by reason of disability sustained during such service, but qualified to perform the duties of any other position in the employ of such employer or his successor in interest, be offered employment and, if such person so requests, be employed by such employer or his successor in interest in such other position the duties of which such person is qualified to perform as will provide such person like seniority, status, and pay, or the nearest approximation thereof consistent with the circumstances in each person's case.

38 U.S.C. § 2021(a)(B)(ii). It is this section that is applicable in the instant case.

The first contention on appeal is that the district court erred in concluding that defendant Company violated the Act by placing plaintiff in a position that did not provide him "like seniority, status, and pay, or the nearest approximation thereof consistent with the circumstances in (his) case." The Company argues that the district court construed the Act as requiring the Company to reinstate plaintiff to the most comparable position and therefore deprived the Company of all discretion in placing veteran employees. The Company, however, has misread the district court's order. The court explicitly acknowledged that "neither side may unilaterally dictate the position to which the veteran is entitled." The district court did not require that defendant Company place plaintiff in the most comparable position; the court merely ruled that defendant must employ plaintiff in a comparable position. ³ Because the court ascertained that the Clerk B position to which plaintiff was assigned was not comparable to the apprentice electrician position to which he was entitled had he not been disabled, ⁴ the court found a violation of the Act. The record amply supports the district court's conclusion, ⁵ and we will not disturb it on appeal.

The Company next raises two objections relating to the calculation of the back pay due plaintiff. First, the Company contends that, since the Clerk B position in the Parts Replacement Warehouse in which plaintiff was initially reemployed was later upgraded in pay, the upgraded pay scale should be used to determine back pay. Assuming that if plaintiff had remained in the Clerk B position his position would have been upgraded, we observe that plaintiff had no way of knowing that this would be his fate. We decline to require, upon penalty of diminishing an otherwise correctly calculated award, that veterans must foresee the future.

The Company's second objection relates to plaintiff's refusal to bid on the Meterman C position. The Company urges that plaintiff should have bid on the meterman position even though it did not as offered approximate the apprentice electrician position and then should have litigated his right to full seniority. While plaintiff could have taken this course, see McKinney v. Missouri-Kansas-Texas Railroad, 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958); Tilton v. Missouri Pacific Railroad, 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964), plaintiff was not required to...