Taylor v. Southern Pacific Company

• Decision Date: 19 December 1969
• Docket Number: Civ. No. 47289.
• Citation: 308 F. Supp. 606
• Court: U.S. District Court — Northern District of California
• Parties: Lee M. TAYLOR, Plaintiff, v. SOUTHERN PACIFIC COMPANY, Defendant.

308 F. Supp. 606

Lee M. TAYLOR, Plaintiff, v. SOUTHERN PACIFIC COMPANY, Defendant.

Civ. No. 47289.

United States District Court N. D. California.

December 19, 1969.

Cecil F. Poole, U. S. Atty., and Steven Kazan, Asst. U. S. Atty., San Francisco, Cal., for plaintiff.

William R. Denton, San Francisco, Cal., for defendant.

OPINION AND DECISION

GERALD S. LEVIN, District Judge.

This case is brought under the provisions of Section 9 of the Universal Military Training and Service Act, as amended (50 U.S.C.A. App. § 459)¹ hereinafter "the Act". Jurisdiction is conferred upon this Court by Section 9(b) of the Act.

The facts of this case appear in an agreed pretrial order dated January 24, 1969. To summarize briefly, Plaintiff Taylor hereinafter "Taylor" was initially employed by Defendant Southern Pacific Company hereinafter "Southern Pacific" on July 19, 1961, in the "other than temporary" position of locomotive fireman. Taylor left such position to enter the United States Armed Forces on July 13, 1964. Taylor completed his military service, received a certificate evidencing satisfactory service, and was separated on July 12, 1966. He then made a timely application for reinstatement on August 30, 1966, and requested severance pay in lieu of re-employment as a locomotive fireman.

Southern Pacific refused to grant Taylor the requested severance pay, but offered instead to reinstate him as a locomotive fireman. Taylor refused such offer.

Taylor did not report to work in order to be reinstated as a locomotive fireman, nor did he "rewrite the book of rules" as requested by Southern Pacific, but he steadfastly insisted on his right to severance pay in lieu of reinstatement. Taylor did, in addition, take the physical examination as required by Southern Pacific and was found physically fit to return to work in his pre-service position.

Pursuant to the agreement reached between the parties in the pre-trial order, the sole issues to be determined are as follows:

(1) Whether or not Taylor met all the requirements for reemployment under the Act;

(2) Whether or not Southern Pacific must grant severance pay to Taylor.

Southern Pacific argues that because Taylor refused to accept reemployment (and follow certain of the procedures with regard thereto as required by Southern Pacific), he was not "restored" within the meaning of the Act and hence cannot avail himself of its benefits. Southern Pacific argues further that Taylor is not entitled to severance pay but only to reemployment, since the Act says nothing about the granting of severance pay and that, in any event, the Arbitration Award² hereinafter "Award" which sanctioned such severance pay lapsed prior to Taylor's request for the severance pay.

None of Southern Pacific's contentions are well taken in the light of the liberality with which courts have interpreted the Act. While there is much case law interpreting the Act and the like provisions of a predecessor statute,³ most of it has been directed at problems of definition under the Act. However, the clear purport of these cases and of the few cases which have discussed the returning veteran's right to severance pay under similar conditions (discussed below) lead to the conclusion that Taylor is entitled to the severance pay he seeks here.

Typical language concerning construction and application of provisions relating to veterans' reemployment rights can be found in the first major Supreme Court case on the subject, Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, 285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230 (1946):

This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need. See Boone v. Lightner, 319 U.S. 561, 575 63 S. Ct. 1223, 1231, 87 L.Ed. 1587. And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act. Our problem is to construe the separate provisions of the Act as parts of an organic whole and give each as liberal a construction for the benefit of the veteran as a harmonious interplay of the separate provisions permits.

Thus both the letter and the spirit of the Act indicate that Taylor did in fact "meet all the requirements for reemployment" as required by the Act. The mere failure to comply fully with company regulations should not be determinative, lest private employers thwart the clear purpose of the Act by imposing their own superfluous requirements to the determination of acceptability for reinstatement as required by the Act.

To have required Taylor to take additional procedural steps, not essential to his reinstatement, would have been wasteful in the instant case; Taylor's avowed purpose from the outset was to secure severance pay, not reemployment. We note that had Taylor gone through the perfunctory steps of accepting reemployment, even for the briefest of periods, this case would not be before us. Since nothing in the record indicates that Taylor was in any way disqualified for reemployment, his failure to begin work again is an illusory ground on which to deny him benefits secured by the Act.

Assuming Taylor met all the requirements for reemployment under the Act, is he then entitled to severance pay pursuant to the Award and in lieu of reinstatement?

Southern Pacific contends that the life of the Award was only two years, with its coverage ending prior to Taylor's application for reinstatement and thus not providing for the grant of severance pay in his case. Southern Pacific cities for this proposition Brotherhood of Railroad Trainmen, supra, but that case does not support Southern Pacific's position. It did not deal with the applicability of Section 9(b) of the Act, nor with the problem of reinstatement of veterans at all, but rather with the status of railroad work rules in the light of the two-year life of the Award. There was no intimation that this two-year life would affect the rights of a returning serviceman which had accrued thereunder. The gist of the court's opinion was as follows (385 F.2d at 593):

We think the mere limitation of the effective period of the Award neither implies nor compels the construction the unions seek. Our ruling is that the work rules created by the Award constituted a new plateau that was not automatically eroded when the Award expired.

We note, too, not only the liberality with which the terms of the Act have been interpreted, but also the mandate of Congress in passing the Act. As the Court said in Fishgold, supra, at 284-286, 66 S.Ct. at 1110-1111,

The Act See Footnote 3., supra was designed to protect the veteran in several ways. He who was called to the colors was not to be penalized on his return by reason of his absence from his civilian job. * * *

Thus he 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 the war. * * *

We agree * * * that by these provisions Congress made the restoration as nearly a complete substitute for the original job as was possible.

The "escalator principle" was reaffirmed by the Court in Trailmobile Co. v. Whirls, 331 U.S. 40, 57, 67 S.Ct. 982, 91 L.Ed. 1328 (1947) and restated in Oakley v. Louisville & Nashville R. Co., 338 U.S. 278, 283, 70 S.Ct. 119, 94 L.Ed. 87 (1949). Congress expressly approved the "escalator principle" by embodying it in § 9 (c) (2) of the Act, supra. Tilton v. Missouri P. R. Co., 376 U.S. 169, 175, 84 S. Ct. 595, 11 L.Ed.2d 590 (1964).

The crux of this principle was the Congressional belief that the returning veteran is not to be penalized by reason of his absence from civilian employment. See Accardi v. Pennsylvania R. Co., 383 U.S. 225, 228-229, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966); Tilton, supra, 376 U.S. at 171, 84 S.Ct. 595; Fishgold, supra, 328 U.S. at 284, 66 S.Ct. 1105. Accardi is the pronouncement of the Supreme Court most persuasive here. The Court in Accardi held that the plaintiff veterans who returned to their civilian employment as tugboat firemen were entitled to credit for time spent in the service in computing amounts to be received by them under a strike settlement agreement permitting lay-offs if accompanied by severance pay. The Court concluded (383 U.S. 229-230, 86 S.Ct. 771), that the intention of Congress in passing the Act,

Was to preserve for the returning veterans the rights and benefits which would have automatically accrued to them had they remained in private employment rather than responding to the call of their country. (Emphasis added)

If Taylor had remained in his civilian employment "rather than responding to the call of his country" he would have automatically qualified to receive severance pay if he had so opted.⁴ To deny Taylor that choice now would be to penalize him by the very fact of service for his country. The "escalator principle" can mean only this: the escalator had steps both up (continued employment and possible promotion), and out (discharge in exchange for severance pay) when Taylor first set foot upon it with his initial employment. When he returned to the escalator, it was impermissible for Southern Pacific to restructure it so as to leave him only the steps up, and remove those leading out.

Besides Accardi, the lower court opinions on the subject do not preclude the possibility of giving severance pay as one of the incidents of reinstatement protected by the Act. See Seattle Star v. Randolph, 168 F.2d 274, 275-276 (9th Cir. 1948) (noting severance pay could be granted upon request for reinstatement by veteran, but refusing to count time in armed forces towards its computation because agreement providing for severance not reached until after veteran's return); Simons v. Chicago Great Western Railway Company, 262 F.Supp. 334, 337 (N.D. Iowa 1966) (severance pay not granted, but only because amount too...