Jefferson v. ATLANTIC COAST LINE RAILROAD COMPANY

• Decision Date: 06 June 1962
• Docket Number: No. 18976.,18976.
• Citation: 303 F.2d 522
• Parties: Ernest O. JEFFERSON, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

303 F.2d 522 (1962)

Ernest O. JEFFERSON, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY et al., Appellees.

No. 18976.

United States Court of Appeals Fifth Circuit.

June 6, 1962.

J. B. McGee, Jr., Waycross, Ga., for appellant.

Larry E. Pedrick, Waycross, Ga., Harold C. Heiss, Russell B. Day, Cleveland, Ohio, George D. Busbee, Albany, Ga., Shelby Myrick, Savannah, Ga., John H. Ritter, Cleveland, Ohio, for appellees.

Before BROWN, GEWIN and BELL, Circuit Judges.

GEWIN, Circuit Judge.

The appellant, Ernest O. Jefferson, complains of the judgment of the District Court for the Southern District of Georgia denying relief to which he claims he is entitled against Atlantic Coast Line Railroad under the provisions of the Universal Military Training and Service Act of 1951, 50 U.S.C.A.Appendix, § 459.¹ The Brotherhood of Locomotive Engineers (BLE) and the Brotherhood of Locomotive Firemen and Engineers (BLF&E) were permitted to intervene as defendants. The case was tried by the court without a jury.

So far as pertinent to our decision, the facts may be stated as follows: Jefferson was employed as a locomotive fireman by the Railroad from January 28, 1942, until June 10, 1942, when he entered the military service. After honorable discharge, he was re-employed by the Railroad on November 21, 1945, as a locomotive fireman and was placed on the Firemen's Seniority Roster with the same seniority he would have had if he had remained continuously in the employ of the railroad from January 28, 1942. At the time he left for the army, he had accumulated approximately 12,000 miles; and after returning, this accumulation rose to 30,000 miles by November 13, 1946.²

Jefferson passed the first examination on June 18, 1947. He completed firing 60,000 miles in August 1947, and took the second examination on March 19, 1949 and failed; but he retook the second examination and passed it on October 20, 1949. He completed firing 90,000 miles on April 28, 1950, and thus became eligible to take the third examination. He was given an opportunity to take the third examination on July 21, 1950, but declined to do so; stating he was not prepared. This refusal was counted as a failure, which fact was known to Jefferson. He took the third examination on December 10, 1951 and failed. Under the rules, this constituted a second failure. He finally took the third examination again on June 12, 1952, and passed it with an exceptional rating. Thereafter, according to the rules, he was required to review the physical characteristics of the railroad and pass an examination relating to transportation train rules. He successfully passed this final test and made his first run as an engineer on September 10, 1952. His seniority date was ultimately determined to be January 27, 1951, a fictitious date fixed by standard practice to close the roster. Jefferson required over six years after returning from military service before he passed the required examinations. During this period, 21 firemen who were junior to Jefferson on the Firemen's Roster had successfully passed all examinations and had made a first run as engineer and were finally placed ahead of Jefferson on the Engineer's Seniority Roster. Seven of these twenty-one men were veterans. Jefferson served as a combat locomotive fireman and engineer during his military service.

When he finally passed the third examination, as above noted, he made a brilliant score. The duties of senior fireman are often preferred to those of junior engineer, but most firemen have the ambition to become an engineer ultimately. There is some evidence in the record to indicate that Jefferson purposely delayed the final passage of his examinations in order to retain his position as senior fireman, but it is not necessary for us to pass upon the motives or reasons which prompted the delay. There was unusual delay.

Jefferson's name was initially placed on the Engineer's Roster in the same position he occupied on the Firemen's Roster, but without a seniority date. It remained in that position from September 10, 1952, until January 13, 1954. On January 13, 1954, the Railroad prepared and issued a seniority roster effective July 1, 1953, which resulted in dropping Jefferson's name 22 places.³ On March 30, 1953, a Memorandum of Understanding was approved by the Railroad and the Brotherhoods which set forth the interpretation of the seniority rule and it was made effective as of July 1, 1951. That date was chosen because certain protests with reference to the seniority roster were filed. Both the Railroad and the Brotherhoods maintain that Jefferson was finally given his proper place and date on the Engineer's Seniority Roster. Jefferson contends that the Memorandum of Understanding constituted a new rule which adversely affected him retroactively. The Railroad and the Brotherhoods claim that the Memorandum was simply a means of placing before the Firemen's Local Chairmen a simple and understandable explanation of prior interpretations of the promotional rules and that no changes were actually made.

There are other facts in the record which are interesting and illustrate the working of the contract⁴ between the Railroad and the Brotherhoods, but we believe the statement of facts set forth is sufficient to an understanding of this case.

We agree with the contention of the Railroad and the Brotherhoods that the Memorandum of Understanding was not a new interpretation of the promotional rules, and that it made no material changes therein; but served to give a better and clearer explanation of the interpretations and decisions in effect prior thereto. We also agree that the position finally given to Jefferson on the Engineer's Roster is the correct one as contended by the Brotherhoods and the Railroad, but neither of these conclusions is controlling or decisive in this case. The controlling question here is whether, there has been discrimination against Jefferson or whether he has been improperly disadvantaged by serving his country in the military. We conclude that the trial court reached the correct conclusion.

Jefferson relies strongly on the holding in Fishgold v. Sullivan Dry Dock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946) which contains the following statement with reference to veterans:

"Thus he does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war."

Thus contends Jefferson, he should be placed on the Engineer's Seniority Roster in the same position he would have occupied if he had never entered the military service and had passed all examinations and qualified. Substantially the same question was before this Court in Bassett v. Texas & Pacific Railway Co., 258 F.2d 819, 5 Cir. (1958). The decision in the Bassett case was delayed pending the decision of the Supreme Court in the case of McKinney v. Missouri-Kansas-Texas R. Co., 240 F.2d 8, 10 Cir. (1956), which was affirmed on certiorari, 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305. In the McKinney case, Mr. Justice Frankfurter clearly explained that the Fishgold decision "* * * does not guarantee the returning serviceman a perfect reproduction of the civilian employment that...