Monroe v. Standard Oil Co., 78-3233

• Citation: 613 F.2d 641
• Decision Date: 15 April 1980
• Docket Number: No. 78-3233,78-3233
• Parties: 103 L.R.R.M. (BNA) 2317, 87 Lab.Cas. P 11,801 Roger D. MONROE, Plaintiff-Appellee, v. The STANDARD OIL COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 641

613 F.2d 641

103 L.R.R.M. (BNA) 2317, 87 Lab.Cas. P 11,801

Roger D. MONROE, Plaintiff-Appellee, v. The STANDARD OIL COMPANY, Defendant-Appellant.

No. 78-3233.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 5, 1979.

Decided Jan. 24, 1980.

Rehearing and Rehearing En Banc Denied April 15, 1980.

Paul S. McAuliffe, Cleveland, Ohio, for defendant-appellant.

William D. Beyer, U. S. Atty., Toledo, Ohio, William H. Berger, U. S. Dept. of Labor, Atlanta, Ga., for plaintiff-appellee; James R. Williams, U.S. Atty., Toledo, Ohio, on rehearing.

Before CELEBREZZE and ENGEL, Circuit Judges, and PECK, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge.

This is an appeal by the defendant-appellant, The Standard Oil Company (Sohio), from a summary judgment of the district court granting plaintiff-appellee recovery of wages for time spent attending military reserve meetings during his regularly scheduled work hours. ¹ Recovery was predicated on 38 U.S.C. § 2022 and § 2021(b)(3) of the Vietnam Era Veterans' Readjustment Assistance Act of 1974.

The case was submitted to the trial judge by counsel for the parties on a stipulation of facts.

During the years 1975 and 1976, the years in which Sohio allegedly violated the Act, plaintiff-appellee, Roger D. Monroe was a full-time employee of Sohio at its Lima, Ohio, refinery. He was also a member of a unit of the Army Reserve and was required to train with his unit on the third weekend of each month and during the last two weeks of August each year.

Throughout the two years in question, Sohio operated its Lima refinery twenty-four hours per day, seven days per week. The work day was divided into three eight-hour shifts. Sohio rotated its employees' shifts. All employees were scheduled to work five eight-hour days in a row per week, but with a different five-day sequence each week. Under this system, weekend work was distributed equally among employees in the course of a year.

Appellant scheduled Monroe to work a full forty hours each week. Sohio periodically slated appellee to work Saturdays and/or Sundays just as it did Monroe's fellow employees. Except for normal time off and the absences for inactive military reserve training in issue here, plaintiff customarily worked his scheduled forty-hour weeks with occasional overtime.

Employment at the Lima refinery was governed by a collective bargaining agreement between appellant and the Ohio Chemical and Atomic Workers International Union during the pertinent period. Article V, P 23 of that agreement provided:

Employees on shift may, by mutual consent and with the consent of their foreman, change shifts provided such change does not require the payment of overtime or premium pay. Where such changes require the payment of overtime or premium pay, such changes may be made only where there exists a critical need of such changes proven to the satisfaction of the Plant Manager.

On four occasions during 1975 and 1976, Monroe was able to change shifts with his fellow employees to accommodate his reserve training and still work a forty-hour week. On twenty-four other days when he was required to train, however, appellee was unable to arrange for an exchange of shifts with other employees. As a result of his absence from the refinery on these days, appellee lost a total of 192 hours of work for which he was not compensated.

Sohio took no steps to provide Monroe with substituted hours or to make up for appellee's lost working time, other than as provided by Article V, P 23 of the collective bargaining agreement. In this regard, Monroe was treated the same as all other Sohio employees under the agreement.

Monroe brought this action against Sohio pursuant to 38 U.S.C. § 2022, asserting that Sohio had violated §§ 2021(b)(3) and 2024(d) of the Act by refusing to rearrange his work schedule to allow him to work a full forty hours per week during those weeks when his military reserve obligation otherwise precluded him from working a full forty hours.

The cause was submitted on the parties' cross-motions for summary judgment. The district court deemed the issue to be whether plaintiff was denied "an incident or advantage of employment," 38 U.S.C. § 2021(b)(3), "when he was unable to exchange shifts with another employee and therefore was unable to work a full forty hour week as employees without military obligations would." The court determined Lott v. Goodyear Aerospace Corp., 395 F.Supp. 866 (N.D.Ohio 1975), Appeal dismissed, No. 75-2324 (6th Cir. January 21, 1976), to be dispositive of the issue. Sustaining plaintiff's cross-motion for summary judgment, the district court held that "being scheduled for a full forty hour week at the defendant's refinery constitutes an incident or advantage of employment" and awarded plaintiff $1,086.72 for wages lost on those "workdates when an accommodation should have been made." This appeal followed.

Appellant contends that it is under no obligation to schedule plaintiff additional working hours or pay him for hours not worked. Sohio further claims that any obligation it owed Monroe was satisfied when it scheduled him to work forty hours per week and granted him the right to switch hours with other employees. We agree.

We begin by looking at two sections of the Act, both of which govern reemployment rights of reservists.

Title 38 U.S.C. § 2024(d) provides in pertinent part:

Any employee . . . shall upon request be granted a leave of absence by such person's employer for the period required to perform active duty for training or inactive duty for training in the Armed Forces of the United States. Upon such employee's release from a period of such active duty for training or inactive duty for training, . . . such employee shall be permitted to return to such employee's position with such seniority, status, pay and vacation as such employee would have had if such employee had not been absent for such purposes. . . .

Originally enacted in 1960 as 50 U.S.C. § 459g(4), section 2024(d) extended, for the first time, the rights set forth therein to reservists "who are absent from employment for only a short period of time, such as 2-hour drills, weekend drills, 2-week annual encampments, and special training periods . . . . S.Rep.No.1672, 86th Cong., 2d Sess. 2, Reprinted in (1960) U.S.Code Cong. & Admin.News, pp. 3077, 3078.

Section 2024(d) guarantees terms and conditions of reemployment to reservists returning from inactive duty training. It does not, however, protect reservists from discrimination by their employers between training assignments. In the years following the enactment of § 2024(d), discriminatory employment practices intensified. Congress responded by passing what is now 38 U.S.C. § 2021(b)(3) ² to remedy this problem. Title 38 U.S.C. § 2021(b)(3) reads in pertinent part:

Any person who (is employed by a private employer) shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a reserve component of the Armed Forces.

The problem to be addressed under this statute and the nature of the remedy it was to provide were stated in a report of the Senate Armed Forces Committee. In Senate Report No. 1477, it said:

Employment practices that discriminate against employees with reserve obligations have become an increasing problem in recent years. Some of these employees have been denied promotions . . . or discharged because of (their training obligations). (Section 2021(b)(3)) is intended to protect members of the Reserve . . . from such practices. It provides that these reservists will be entitled to the Same treatment afforded their coworkers not having such military obligations . . . . (emphasis added) S.Rep.No.1477, 90th Cong., 2d Sess., Reprinted in (1968) U.S.Code Cong. & Admin.News, pp. 3421, 3421.

Lott v. Goodyear Aerospace Corp., 395 F.Supp. 866 (N.D.Ohio 1975), Appeal dismissed, No. 75-2324 (6th Cir. January 21, 1976), relied on by the district court, was one of the first cases to interpret section 2021(b)(3). In Lott, the court held that the opportunity to work overtime hours qualifies as an incident or advantage of employment protected by section 2021(b)(3) and ruled that a reservist may not be charged for overtime hours that he is forced to refuse because of his military training obligations.

The union contract that controlled overtime scheduling in Lott, supra, provided that an employee could refuse offered overtime, but he would be "charged" as if he had worked the scheduled overtime, even if his nonacceptance was due to reasons beyond his control, such as sickness or personal business. The plaintiff in Lott missed overtime opportunities on two occasions because of his required attendance at reserve meetings. He was charged for the overtime refused in accordance with the collective bargaining agreement. The Lott court rejected the employer's argument that since the contract was neutral on its face and was applied neutrally by the defendant, plaintiff was being treated equally with his co-workers as required by section 2021(b)(3). The court reasoned that to permit the application of the contract provision with equal force to all employees, including military reservists, "would permit a collective bargaining agreement to nullify the express protections of section (2021(b)(3))." 395 F.Supp. at 869-870. Finding that the defendant's nonreservist employees were charged only if they "voluntarily" refused overtime, the district court held that the employer was required to accommodate the plaintiff by making missed overtime opportunities available to him.

Based on its reading of the Lott, supra, decision, the district court in the present case had "no trouble in holding that being scheduled for a full forty hour week . . . constitutes an incident or advantage of employment" and finding Sohio liable to the plaintiff "for those work dates when an accommodation should...