Pomrening v. United Air Lines, Inc., 18616.

• Decision Date: 02 September 1971
• Docket Number: No. 18616.,18616.
• Citation: 448 F.2d 609
• Parties: Roy Paul POMRENING, Plaintiff-Appellant, v. UNITED AIR LINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

448 F.2d 609 (1971)

Roy Paul POMRENING, Plaintiff-Appellant, v. UNITED AIR LINES, INC., Defendant-Appellee.

No. 18616.

United States Court of Appeals, Seventh Circuit.

September 2, 1971.

Eugene Cotton, Richard F. Watt, Chicago, Ill., for plaintiff-appellant; Cotton, Watt, Jones, King & Bowlus, Chicago, Ill., of counsel.

Stuart Bernstein, Arthur J. Kowitt, Chicago, Ill., for defendant-appellee; Mayer, Brown & Platt, Chicago, Ill., of counsel.

Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.

PELL, Circuit Judge.

Although flying the friendly skies of United, pilot Pomrening found them less cordial to his seniority status than he claimed they should be because of his status as an honorably discharged veteran of the United States Navy. Accordingly, he brought an action against United Air Lines, Inc., his employer, under Section 9 of the Military Selective Service Act of 1967, 50 U.S.C. App. § 459.

The district court heard the case on stipulated facts, exhibits, affidavits and depositions without oral testimony. The court dismissed the complaint on the merits finding that Pomrening had been accorded all the benefits and privileges to which he was entitled. From the adverse judgment, Pomrening has brought the present appeal.

Pomrening was first employed by United on October 23, 1961, following a selective pre-hiring screening. He was immediately assigned to United's Flight Officer Training Class No. 54 along with 17 other pilot trainees. He completed only one day of the 17 week training program before being recalled to active duty as a Navy pilot, having been unsuccessful in his attempt to secure a delay in his call to military service.

Pomrening was discharged from active duty on October 5, 1965. Following appropriate request, he was reemployed by United on November 15, 1965, and assigned to Training Class No. 108. He successfully completed the training program on February 11, 1966, and was "assigned to the line" as a qualified Second Officer along with all other members of Class No. 108 who had successfully completed their training.

Pursuant to collective bargaining agreements in effect both at the time Pomrening was first hired and at the time he completed his training, pilot seniority did not begin to accrue until an employee successfully completed the training program and was given his "first assignment to the airline as a pilot for active duty. * * *" Position on the pilot seniority list determines a flight officer's right to bid for promotion and for work on higher paying equipment as well as for work schedules, choice of vacations and home base.

Pilot seniority is to be distinguished from company seniority which controlled a different set of benefits. Company seniority begins to accrue automatically on the date of the first employment with the company and Pomrening admittedly had company seniority beginning October 23, 1961.

Section 9(c) (2) of the Act, 50 U.S.C. App. § 459(c) (2), provides:

"It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section should be so restored in such manner as to give him such status in his employment as he would have enjoyed 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."

This provision expressly incorporates into the Act the "escalator principle" first announced in Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946). Montgomery v. Southern Electric Steel Co., 410 F.2d 611, 614 (5th Cir. 1969). The rule, as stated in Fishgold, supra, 328 U.S. at 284-285, 66 S.Ct. at 1111, is that:

"The reemployed veteran 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 his military service." See also Oakley v. Louisville & Nashville R. Co., 338 U.S. 278, 283-284, 70 S.Ct. 119, 94 L.Ed. 87 (1949), and Trailmobile Co. v. Whirls, 331 U.S. 40, 67 S.Ct. 982, 91 L.Ed. 1328 (1947).

United assigned Pomrening pilot seniority number 4034 based upon his completion of training on February 11, 1966, with Class No. 108. Pomrening, on the other hand, claims he is entitled to a number based on the seniority date of the members of his original Class No. 54 whose training was not interrupted by military service, an advancement of some 1050 places on the seniority list.

Resolution of this dispute requires us to determine whether Pomrening's advancement with United was "dependent on fitness and ability and the exercise of a discriminating managerial choice" within the meaning of McKinney v. Missouri-Kansas-Texas R. Co., 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958), or was "automatic" and "dependent essentially upon continuing employment" within the meaning of Tilton v. Missouri Pac. R. Co., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964).

In McKinney, employees were divided into three groups depending on their function, with seniority defined within each group. When McKinney entered the armed services, he held a group 2 position. When he returned, he was placed in a group 1 job with seniority from the date of his reemployment. The Supreme Court rejected his contention that he was entitled to an earlier seniority date based on the fact that he could have applied for available group 1 positions earlier had he not been in the military. The Court found critical a provision of the collective bargaining agreement which stated that "group two (2) employees will be given preference over nonemployes in the assignment to positions in group one (1), based upon fitness and ability * * *." (Emphasis added.)

The Court concluded that McKinney could not claim the promotion in reliance upon section 9 of the Act, since under the contract it was dependent "not simply on seniority or some other form of automatic progression, but on the exercise of discretion on the part of the employer." McKinney,supra, 357 U.S. at 272, 78 S.Ct. at 1227.

On the basis of McKinney, United argues that Pomrening is not entitled to any retroactive pilot seniority rights since his advancement through the training program was greatly dependent upon the exercise of management discretion. Both the stipulation at trial and United's brief to this court set out in detail the rigorous program for training pilots. There is little dispute that the program is filled with tests, examinations and evaluations and that if any trainee fails to meet the standards demanded by United, he is dismissed from the program and from United's employ.

However, these standards while naturally calling for greater mental ability and physical agility than would be needed for wheelbarrow trundling, nevertheless are obviously uniformly applied to the members of the training classes. Absolute perfection was not required on the part of a trainee during the course. Numerous written examinations were given with 70 or 80% being a passing grade. A second opportunity to pass was given if a failing grade had been received in the written examination and it was only after a second failure to secure a passing grade that a trainee was ordinarily terminated.

While the writer of this opinion might have a personal preference that any airplane in which he was a passenger have pilots who had never achieved less than 100% on any test, it seems clear that working with the Federal Aviation Agency, the company had devised objective standards to insure well qualified pilots with a course of testing to see that those qualifications were being met.

In any event, it appears from Supreme Court pronouncements following McKinney that the type of employer discretion exercised by United is not such as to defeat a veteran's seniority rights.

McKinney was found distinguishable by the Court in Tilton, supra, 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590. At the time Tilton was called to military service, he held "provisional carman status." Under the collective bargaining agreement, he was not entitled to journeyman seniority until he had completed 1,040 days of actual work in the provisional status. After his return from the military, Tilton completed the 1,040 day requirement by working an additional 895 days on the provisional status. He was then given journeyman seniority status, but only from the day he actually completed the provisional period. The Court held that he was entitled to "a seniority date reflecting the delay in advancement caused by military service." Id. at 181, 84 S.Ct. at 602.

The Court noted that once the employee had successfully completed the work period and made his election, he received the journeyman status and that promotion therefore was automatic. Id. at 178, 84 S.Ct. 595.

Having reached that conclusion, the Court found unpersuasive the fact that successful completion of the training period was "subject to certain contingencies or `variables' * * * including continuing satisfactory work by petitioners in the provisional position * * *." Id. Noting that "in every veteran seniority case the possibility exists * * * that the veteran would not have worked satisfactorily during the period of his absence * * *," the Court held that despite such a contingency, Tilton's case was like those "where advancement depends essentially upon continuing employment. * * *" Id. at 179, 84 S.Ct. at 601.

In summarizing its holding, the Court stated:

"* * * we conclude that Congress intended a reemployed veteran, who, upon returning from military service, satisfactorily completes his interrupted training, to enjoy the seniority status which he would have acquired by virtue of continued employment but for his absence in military service. This requirement is met if, as a matter of foresight, it was reasonably certain that advancement would have occurred, and if,

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