Special Service Co. v. Delaney, 12336.

• Decision Date: 10 March 1949
• Docket Number: No. 12336.,12336.
• Citation: 172 F.2d 16
• Parties: SPECIAL SERVICE CO., Inc. v. DELANEY.
• Court: U.S. Court of Appeals — Fifth Circuit

172 F.2d 16 (1949)

SPECIAL SERVICE CO., Inc. v. DELANEY.

No. 12336.

United States Court of Appeals Fifth Circuit.

February 1, 1949.

Rehearing Denied March 10, 1949.

Frank William Hart, of New Orleans, La., and Henry T. Stetson, of New York City, for appellant.

J. Skelly Wright, U. S. Atty. and Nicole E. Simoneaux, Asst. U. S. Atty., both of New Orleans, La., for appellee.

Before HUTCHESON, WALLER, and LEE, Circuit Judges.

LEE, Circuit Judge.

This appeal is prosecuted by Special Service Co., Inc., defendant below, from a judgment rendered in favor of the plaintiff, Rosario H. Delaney, a returned veteran, in an action for reinstatement in employment and for compensation because of the defendant's alleged refusal to reinstate Delaney under provisions of the Selective Training and Service Act of 1940 and specifically 50 U.S.C.A.Appendix, § 308.

In drafting the Selective Training and Service Act of 1940, the legislators sought to protect those chosen to serve the United States in the then emergency from suffering loss of status in their civilian pursuits during their service with the Armed Forces. To accomplish that purpose, there was included in the legislation certain language, now found in 50 U.S.C.A.Appendix, § 308, providing that persons inducted under the provisions of the act, after successfully completing their duties and still being qualified to hold their former positions, should be, on timely application (within 90 days of separation from the military establishment), restored to their former positions or positions of like seniority and pay. Where such persons had been employed by private enterprise, there appears the additional qualification that reinstatement is subject to the employer's circumstances not having so changed as to make the reinstatement impossible or unreasonable. To enforce rights conferred by this statute, the present action was instituted.

Rosario H. Delaney was, at the time of his induction into the service on February 18, 1943, employed as a "laborer" by Special Service Co., a Delaware corporation, engaged in maintenance and repair of air-conditioning and electrical equipment of railroad passenger cars in various places, including New Orleans, where the plaintiff was employed. When Delaney left for the service, his job, laborer on the night shift, was assumed by one Perniciaro. Later in 1943 the company abolished the classification "laborer" in its New Orleans operations, and Perniciaro was advanced to "apprentice," and shortly after this change he too left for the Armed Forces.

The terms "laborer" and "apprentice," as well as "electrician" or "mechanic," carry special significance and were used, if not originated, in the company's contract with the union representing employees other than laborers. That contract provided that "laborers" should not be allowed to use tools and should not engage in mechanics' work; "apprentices," on the other hand, were allowed to use tools and under specified conditions were allowed to perform work of mechanics, and they also enjoyed a system of seniority rights and on successful completion of a period of apprenticeship could become electricians or mechanics, privileges not granted laborers.

On February 20, 1946, Rosario Delaney was honorably discharged from military service. On March 5, 1946, he applied in writing for reinstatement with Special Service Co. The company refused to reinstate him, claiming that the position of "laborer" had been abolished. The subject was then referred to the Re-employment Section of Selective Service, and a Major Cox proceeded to negotiate with the employer on the plaintiff's behalf. The first letter from Cox to the defendant, dated October 30, 1946, told the defendant that Delaney would only accept reinstatement as an apprentice. Matters proceeded without settlement, and on March 28, 1947, the company offered to reinstate Delaney as a laborer, giving as its reason that the prospective enlargement of the business in the summer months required the readoption of this type employee. This offer was conditioned on the waiver of any back wages by plaintiff. Delaney declined the offer, stating again that he would only accept reinstatement with apprentice status, and refused to waive claim to back wages. The matter soon afterwards came into the hands of the United States Attorney, and, it appearing that the case would not be tried immediately, the company offered to employ the plaintiff as a laborer pending the outcome of the litigation. This offer too was rejected.

In due course the case was heard by the district judge, and he determined that the position of "apprentice" was substantially equivalent to Delaney's status at the time he was a "laborer" and ordered Special Service Co. to offer Delaney employment as apprentice and also ordered tender and payment to him of an amount equal to the rate of pay for an apprentice, from March 5, 1946, to the date of offer of reinstatement, less amounts Delaney had earned working elsewhere during the period.

The position designated "laborer" and the position designated "apprentice" are separate jobs, at different levels in the hierarchy of employment in the defendant company. The pay rate of the apprentice exceeds the pay rate of the laborer, and the privileges accorded the former status include seniority and the opportunity to advance; a laborer is without seniority, does not by perserverance in his work rise to a higher classification, and is not represented by a union as is the apprentice. In this there is no controversy. The plaintiff acknowledged the higher classification in his testimony and affirms that acknowledgment by seeking to step into the higher classification. He does not challenge the difference existing in the work...