Olin Industries v. Barnett

• Decision Date: 24 January 1946
• Docket Number: Civil Action No. 618.
• Citation: 64 F. Supp. 722
• Parties: OLIN INDUSTRIES, Inc., v. BARNETT et al.
• Court: U.S. District Court — Southern District of Illinois

64 F. Supp. 722

OLIN INDUSTRIES, Inc., v. BARNETT et al.

Civil Action No. 618.

District Court, S. D. Illinois, S. D.

January 24, 1946.

Bryan, Cave, McPheeters & McRoberts, of St. Louis, Mo., for plaintiff.

Herbert S. Thatcher, of Washington, D. C., for defendants (non-veterans) and American Federation of Labor.

Schaefer O'Neill, of Alton, Ill., for defendants (veterans).

BRIGGLE, District Judge.

This is a suit for declaratory judgment, pursuant to the Federal Declaratory judgment Act, 28 U.S.C.A. § 400, and the questions presented arise under Section 8 (a, b, c) of the Selective Training and Service Act of 1940, as amended, 50 U.S. C.A.Appendix, § 308(a, b, c).^* The purpose of the suit is to have the Court determine and declare the rights of various employees and classes of employees of the plaintiff.

Olin Industries, Inc. (formerly Western Cartridge Company), is engaged in the business of producing various forms of explosive materials and maintains a plant at East Alton, Illinois. On July 28, 1943, plaintiff entered into a certain collective bargaining agreement with the American Federation of Labor and affiliated organizations, which had theretofore been designated as the bargaining agents for all production and maintenance employees of plaintiff at the East Alton plant with respect to rates of pay, wages, hours of employment and other conditions. Thereafter this agreement was modified and extended from time to time by other written agreements, and as so modified and extended was in full force and effect at the times pertinent for our consideration. It is unnecessary to recite at length the terms of these bargaining agreements, but it is sufficient for our purpose to note that they each provide in great detail for the principle of service seniority in all dealings between the employer and employees. The contract, not unlike usual labor agreements, provides among other things, as follows:

"Section 1: The principle of length of service seniority shall be adhered to for employees covered by this agreement with respect to promotions, demotions, transfers, layoffs and re-employment, in the plant, as long as the employees affected have approximately equal ability required to do the job in question and perform their work in a safe and efficient manner. Any employee taking any position must possess the preliminary knowledge and training, together with the ability and physical fitness necessary to qualify for that position as determined by the management.

"Section 2: After completing a 90-day probationary period, an employee's length of service seniority shall begin and accumulate from the most recent date of service with the Company. Within thirty (30) days after the signing of this working agreement, the Company shall furnish the Union a Seniority list compiled on the basis of length of service only.

"Section 3: When length of service seniority is to be the determining factor, it shall be measured by the length of plant-wide employment but shall be applied on a job classification or occupational group basis. In the event of layoffs, employees who have been laid off from any job classification or occupational group may be transferred at the discretion of the Company in accordance with their plant-wide seniority to any other job classification or occupational group for which they are qualified. When an employee is transferred from one job classification or occupational group to another for any reason, there shall be no loss of length of service seniority. After an employee has worked in any job classification or occupational group for a total of thirteen (13) weeks, he is then considered a member of that occupational group, and assumes his position on the seniority list of such group in accordance with his plant wide seniority, * * *"

The contract also takes into consideration the provisions of the Selective Training and Service Act and undertakes to harmonize the collective bargaining agreement with the pertinent terms of the Act, as follows:

"Section 1: Any employee who is called into active service, or who in time of war volunteers, in the military forces or the Merchant Marine of the United States, shall be given a leave of absence for, and will accumulate Seniority during, such period of service. Upon termination of such service, he will be re-employed provided he has not been dishonorably discharged and provided such employee has not voluntarily re-entered such service after being offered an opportunity of demobilization, and is physically and mentally able to do available work in line with his seniority, at the current rate for such work, and provided he reports for work within 40 (now 90) days of the date of such discharge, unless circumstances have so changed as to make it impossible or unreasonable for the Company to do so."

The complaint shows that prior to the outbreak of World War II and particularly during the years 1935 to 1939, inclusive, plaintiff employed at its East Alton plant a maximum of 2979 persons and an average of 2333; that following the outbreak of World War II plaintiff greatly expanded its operations at the East Alton plant until it had a maximum of 11926 employees in 1943. Since the end of hostilities employment at the plant has been markedly reduced until September 21, 1945, there were 4369 employees. During the period from May 1, 1940, to October 1, 1945, 3459 of plaintiff's employees left their positions at the plant to enter the military service of the United States, many of whom are now returning and demanding reemployment by plaintiff under the terms of the Selective Training and Service Act heretofore referred to. All defendants have entered their appearance herein and admitted all the allegations of fact contained in the complaint. One group (nonmilitary service) asserting, however, that upon those facts they are entitled to retain their present positions with the company; the other group of defendants (those of military service) asserting that upon the agreed facts and under the provisions of the Selective Training and Service Act they are entitled to be re-employed by the plaintiff and if necessary to replace defendant-employees of non-military service.

Four several cases are presented by the complaint in which the employer is confronted with the demand of two separate individuals for the same position.

Case No. 1, Barnett-Hinderhan.

Defendant Joseph Barnett was employed by plaintiff on May 23, 1933, and was promoted to the position of caster on May 6, 1940, and has since held and now holds such position. Defendant Eugene Hinderhan was employed by plaintiff on May 27, 1940, and was promoted to the position of caster on January 18, 1942, which position he held until September 16, 1942, when he left to enter the military service of the United States. Hinderhan was honorably discharged from the armed forces on October 3, 1945, received the certificate referred to in Section 8(a) of the Act, was qualified to perform the duties of a caster and made application for reemployment with plaintiff within the time required by the Act. At the time Hinderhan made application for reemployment, defendant Barnett had the shortest service seniority of any caster then employed by plaintiff who had not been in the military service, and if plaintiff is required under the Act to reemploy Hinderhan as caster it will be necessary for plaintiff to remove Barnett from his position as a caster and either demote him or discharge him. Defendant Hinderhan asserts that under the provisions of the Selective Training and Service Act he is entitled to be reemployed as a caster regardless of his length of service seniority in the plaintiff's plant and regardless of whom it might displace. Defendant Barnett asserts that under the provisions of the collective bargaining agreement between plaintiff and employees that he is entitled to the position of caster instead of the defendant Hinderhan, not by reason of military service, but by reason of greater service seniority in plaintiff's plant, and this in spite of the provisions of the Selective Training and Service Act.

During the years 1935 to 1939 inclusive, plaintiff employed at its plant an average of 30 casters, but as a result of plaintiff's expansion following the outbreak of World War II plaintiff employed a maximum of 100 casters. Since the close of the war, and as a result of the reduction in operations plaintiff now employs only 24 casters all of which positions are filled by persons long in the employ of plaintiff, but without military service in the second world war, and all of whom have greater length of service seniority than defendant Hinderhan. We thus have the case of Barnett, a nonmilitary service employee who has worked in plaintiff's plant since 1933 and has worked as a caster since May 6, 1940; and the case of Hinderhan who began working for plaintiff on May 29, 1940, and became a caster on January 18, 1942, and left for military service in September, 1942. The pleaded and admitted facts disclose that plaintiff's operations began to reflect the impact of war orders in 1939, and during the ensuing war years, the number of plaintiff's employees jumped from a previous high of 2979 to a maximum of 11926 and on September 21, 1945, following the end of hostilities, the number of employees had then been reduced to 4369. It further appears that during the war years 3459 persons who were employed at plaintiff's plant at various times left in order to perform military service, many of whom are now returning to reclaim their positions. Hinderhan is one of the 3459. It is a reasonable inference that a very large percentage of those leaving the plant to enter military service came from among those employed after the war started, as the older employees, many of whom have been with plaintiff 10, 20, or 30 years, obviously would not be of military age. Plaintiff's normal peace time complement of some 2300 trained employees may,...