Noble v. International Nickel Co.

• Decision Date: 28 April 1948
• Docket Number: Civ. No. 455.
• Citation: 77 F. Supp. 352
• Parties: NOBLE v. INTERNATIONAL NICKEL CO., Inc.
• Court: U.S. District Court — Southern District of West Virginia

77 F. Supp. 352

NOBLE v. INTERNATIONAL NICKEL CO., Inc.

Civ. No. 455.

District Court, S. D. West Virginia.

April 28, 1948.

L. E. Given, U. S. Atty., of Charleston, W. Va., and Philip A. Baer, Asst. U. S. Atty., of Huntington, W. Va., for petitioner.

Scherr, Meek & Vinson and John B. Meek, both of Huntington, W. Va., Sullivan & Cromwell and Roy L. Steinheimer, both of New York City, for respondent.

WATKINS, District Judge.

This is another action in which petitioner claims that he left his employment with respondent to enter the military service and seeks reinstatement under the provisions of Section 8(e) of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 308(e). Respondent has denied reinstatement on the ground that he did not intend to enlist in either the Navy or the Merchant Marine when he left his employment. It is conceded that if he left his employment to enter either the Navy or the Merchant Marine, he is entitled to the benefits of the Act. Civilian Reemployment of Members of the Merchant Marine, Title 50 U.S.C.A.Appendix, § 1471.

Petitioner was employed by respondent for a few months in 1937, but was reemployed in 1939, and remained in such employment until January 1, 1945, when he quit work. Although he was married and had two children and was in a deferred classification as an essential worker, he wanted to get into some branch of the service. He preferred the Merchant Marine or the Navy. For about one month before leaving his employment he made frequent visits from his home in Huntington, W. Va., to Madison, W. Va., to talk with his sister about his plans. On one of those visits during the Christmas holidays, only a few days before he quit work, his sister, realizing that he was determined to enlist in the Merchant Marine, called the Merchant Marine headquarters in Cincinnati, O., to secure information for him about the compensation in this branch of service. She tried to persuade him to enter the Navy instead of the Merchant Marine. During the two week period immediately preceding January 1, he also talked to different fellow employees about his intention to enter the service. On one of those occasions in the locker room, he stated in the presence of a number of people that he "was going into the service". On another occasion he stated that he "was dissatisfied", and that he "wanted a release to get out to join the service" and that he "was going to quit and join the service". In order to get in the service by enlistment it was necessary for him to get a release from his employer from the deferred classification. About one week before January 1 he went to the recruiting office to see about enlistment, but was referred to his Local Draft Board. There he was told that he was on deferment and could not enlist unless he signed Form 219. On January 1 he quit work, and notified his employer that he was leaving his employment. On the same day he went to the U. S. Employment office to secure information on the Merchant Marine. One week later he went to Cincinnati, O., and secured applications for the Merchant Marine. After discussing this branch of service with his wife he decided to enlist in the Navy, and on April 15 signed the necessary papers for his enlistment. He would have been inducted immediately had he been three days earlier in signing his papers. He had to wait until the February call for his induction. On January 15 respondent wrote the Local Board that petitioner had quit his work because he was dissatisfied and requested that his deferment be cancelled, and on January 19 he was placed in Class 1A. He was actually inducted into the Navy on February 6, 1945, and was honorably discharged on February 19, 1946. On May 20, 1946, his employer refused to reinstate him in his former position.

By agreement between his employer and the union, if he left his employment to enter the military service and gave notice to that effect to his employer, he would have been entitled to receive one month's additional pay. When petitioner arrived at camp he presented the papers given to him by his employer to his commanding officer in order that the month's pay might be forwarded to him, but was told that he had not secured the proper papers and he never did get that extra pay. Petitioner did not say anything to his employer concerning the separation pay at the time he left because he did not think it necessary. He believed that if he actually entered the military service that the separation pay would be forwarded to him as a matter of course.

There is no substantial dispute in the evidence concerning the facts stated above. The conflict in the evidence relates to whether petitioner notified his employer that he was quitting work to enter the military service. Respondent's personnel director (Brady) and merchant mill superintendent (Griffiths) testified that petitioner did not tell them that he intended to enter the military service; that he indicated to them that he was having domestic trouble, and leaving town. They filled out and gave him a slip of paper on the usual form showing that he was leaving the service of the company. The paper showed that he was leaving because he was "dissatisfied", and Brady says that the words "leaving town" were added at petitioner's request. They both deny that petitioner told them of his intentions to enter the service. They say if they had known...