Moe v. Eastern Air Lines, 16409.

• Decision Date: 18 June 1957
• Docket Number: No. 16409.,16409.
• Citation: 246 F.2d 215
• Parties: Derlyn E. MOE, Appellant, v. EASTERN AIR LINES, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

246 F.2d 215 (1957)

Derlyn E. MOE, Appellant, v. EASTERN AIR LINES, Inc., Appellee.

No. 16409.

United States Court of Appeals Fifth Circuit.

June 18, 1957.

Hershel Shanks, Atty., Dept. of Justice, Samuel D. Slade, Atty., Washington, D. C., E. David Rosen, Asst. U. S. Atty., Miami, Fla., George Cochran Doub, Asst. Atty. Gen., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellant.

W. Glen Harlan, Atlanta, Ga., Charles M. Moon, Miami, Fla., Gambrell, Harlan, Russell, Moye & Richardson, Atlanta, Ga., E. Smythe Gambrell, Atlanta, Ga., of counsel, for Eastern Air Lines, Inc.

Before BORAH, RIVES and BROWN, Circuit Judges.

RIVES, Circuit Judge.

This action is by an honorably discharged veteran to enforce alleged reemployment rights under Section 9 of the Universal Military Training and Service Act of 1951, 65 Stat. 75, 50 U.S.C.A. Appendix, § 459.¹ The appellant insists that the defendant's motion for summary judgment was improperly granted, and that summary judgment should have been rendered in favor of the plaintiff. The appellee, while seeking an affirmance of the summary judgment dismissing the complaint, nevertheless calls to our attention its challenge to jurisdiction which was not ruled on by the district court. The substance of that challenge will be stated and ruled upon as soon as a few of the facts necessary to an understanding of the issues can be set forth.

Moe was employed by Eastern Air Lines as a copilot on August 4, 1950. Seven months later, on March 1, 1951, he was called to active duty in the Armed Forces of the United States. He remained in the service for about a year and nine months, and on December 1, 1952 was reinstated in Eastern's employ as a copilot, after being honorably discharged from the military service. It is agreed that in all respects save one Moe was treated "as * * * if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment."² The one respect in controversy is that Eastern refused to credit his time in the service as time on the job with respect to "seniority for pay purposes," and thereby Moe received a lower wage rate than he would have received if he had remained continuously in Eastern's employ. For an understanding of this controversy a consideration of the collective bargaining agreement is essential, and we shall recur to that later.

The district court concluded that, under the collective bargaining agreement, Moe held a "temporary position" and, hence, that he had no reemployment rights under the Act. As an additional reason for denying relief, the district court held that, under the Act, time in the service need not be counted as time on the job for the purpose of the system of wage increases awarded under the collective bargaining agreement.

Thus, three questions are presented to this Court for decision: 1, Did the district court have jurisdiction? 2, Did Moe leave a mere "temporary position" to perform his military service? 3, Must Moe's time in the service be counted as time on the job for the purpose of "pay seniority?"

I. Jurisdiction.

Under the collective bargaining agreement, Moe is entitled to have any "grievance concerning any action of the Company" handled in accordance with procedure therein established, including appeals within the Company and then "further appeal" to the Eastern Air Lines Pilots' System Board of Adjustment created in accordance with the requirements of 45 U.S.C.A. § 184 and § 153. Unless otherwise provided by the Universal Military Training and Service Act, it would appear that the Adjustment Board procedure is the exclusive primary remedy for Moe's grievance.³ However, Section 9(d) of the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 459(d) provides:

"In case any private employer fails or refuses to comply with the provisions of subsection (b) or (c) (1) of this section, the district court of the United States for the district in which such private employer maintains a place of business shall have power * * * specifically to require such employer to comply with such provisions and to compensate the veteran for any loss of wages or benefits suffered by reason of such employer\'s unlawful action * * *." (Emphasis supplied.)

Subject to the possibility that the Supreme Court may rule otherwise in deciding No. 849, October Term, 1956, McKinney v. Missouri, K. & T. R. Co., certiorari to 10th Circuit, 240 F.2d 8, granted 353 U.S. 948, 77 S.Ct. 860, 1 L. Ed.2d 858, we think that it is now settled that the foregoing specific jurisdictional grant of the Universal Military Training and Service Act prevails over the more general policy of the Railway Labor Act.⁴

II. "Temporary Position."

The collective bargaining agreement provided that, "The copilot shall be on probation for an aggregate of the first twelve months of his service on flying status as a copilot with the Company." Moe had served only seven months at the time of his induction. The district court concluded:

"The Court holds that the Plaintiff, Derlyn E. Moe, is not entitled to invoke 50 U.S.C.A.App. § 459, because that section specifically excludes from its application persons who left a `temporary position\' before entering the Armed Forces. When the Plaintiff entered the service on March 1, 1951, he held such a `temporary position\' inasmuch as he was still `on probation\' which meant he had no vested right of employment and could be discharged at any time and for any reason (Union Contract, Section 29(c) (2)).

"The cases of Venzel v. United States Steel Co., 6 Cir., 1953, 209 F.2d 185, and Lesher v. Mallory & Co., 7 Cir., 1948, 166 F.2d 983, held that `probationary employees\' hold `temporary positions\' within the meaning of 50 U.S.C.A.App. § 459 (and its predecessor section), and, therefore, those probationary employees may not invoke that section."

It was stipulated that Moe "was never informed orally or by letter or memorandum that he was being employed for a temporary position." The agreement itself makes only two distinctions between a probationary and a nonprobationary copilot. It provides that first pilots and copilots who have completed their probationary period "shall, in addition to retaining their position on the seniority list, accrue seniority for pay purposes." The validity of that distinction is attacked in this case and will be discussed in the concluding part of this opinion. The other difference is that a copilot, during his probationary period, is not extended the right of investigation and hearing, meaning, we think, that he is not entitled to use the grievance procedure. In effect, the employment relationship during the probationary period is an employment at will, or so long as is mutually agreeable to both of the parties. Does that make the employment "temporary?"

Section 9(b) of the Act, 50 U.S. C.A.Appendix, § 459(b), provides unemployment rights for any person who, in order to perform his military service, leaves a position "other than a temporary position." The Sixth Circuit has well pointed out that the Act does not define the positions covered as "permanent," but simply as "other than * * * temporary." Bryan v. Griffin, 6 Cir., 166 F.2d 748, 750. The exclusion is in line with the general purpose of the Act, that a person called into the service "was not to be penalized on his return by reason of his absence from his civilian job." Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230.⁵ A temporary job, or one which a person holds only temporarily, might well be lost to him regardless of his call to the colors.

A job itself may be temporary,⁶ or the employee's incumbency may be temporary.⁷ The job or position of copilot exists permanently. The district court thought, however, that during his twelve month probationary period, Moe's incumbency in that position was temporary. We do not agree.

Employers have argued on the one hand that only employees with contracts of definite duration are within the Act's protection; and, on the other hand, that only employees at will are covered by the Act.⁸ Neither fact, in our opinion, is controlling. Keeping in mind the purpose of the Act, we think that the controlling determination is whether, regardless of the contract of employment, there was a reasonable expectation that the employment would be continuous and for an indefinite time.⁹ Applying that test, it is clear that Moe held "other than a temporary position." As a probationary employee he had every reason to expect that his employment would be continuous and for the indefinite future, as indeed it turned out to be.

The Venzel case, supra, from the Sixth Circuit and the Lesher case, supra, from the Seventh Circuit, relied upon by the district court, are admittedly in point, though it might be noted that in those cases the probationary period was three months instead of twelve months, as here. With deference, however, each of those cases seems to us to put undue emphasis on the formal or nominal designation of the employee as "probationary" and to ignore the justifiable expectation of continuous employment for the indefinite future and the policy behind the exception of those in a temporary position. For the reasons stated, we are unable to follow those decisions.

III. "Pay Seniority."

The collective bargaining agreement provided that a copilot's "seniority for pay purposes is to be computed on the actual length of service as a pilot with the Company, except as provided in this agreement." The single exception to the requirement of "actual length of service" is the provision heretofore noted that first pilots and copilots who have completed their probationary period "shall, in addition to retaining their position on the seniority list, accrue seniority for pay purposes" during periods of active military service.

The contract provided for a monthly base or minimum pay which...