Trailmobile Co. v. Whirls
| Citation | 154 F.2d 866 |
| Decision Date | 10 June 1946 |
| Docket Number | No. 10189.,10189. |
| Parties | TRAILMOBILE CO. et al. v. WHIRLS. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Philip J. Schneider, of Cincinnati, Ohio (Waite, Schindel & Bayless, and Herbert Shaffer, all of Cincinnati, Ohio, on the brief), for Trailmobile Co.
Sol Goodman, of Cincinnati, Ohio, for C.I.O.
Byron B. Harlan, of Cincinnati, Ohio (Robert E. Marshall, of Cincinnati, Ohio, on the brief), for Lawrence Whirls.
Before SIMONS, MARTIN, and MILLER, Circuit Judges.
Writ of Certiorari Granted June 10, 1946. See 66 S.Ct. 1364.
Decision of this case requires interpretation of the reemployment provisions of the Selective Training and Service Act of 1940, 54 Stat. 885, U.S.C.A., Title 50, Appendix, § 301 et seq., and especially Sec. 308 thereof, as amended. The Act provides that the honorably discharged service man, who, in order to perform training and service by induction into the land or naval forces of the United States, left a permanent position with a private employer, shall, if still qualified to perform the duties of the position, upon making the required application for reemployment after his relief from training and service, be restored to such position "or to a position of like seniority, status, and pay, unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so." U.S.C.A. Title 50 Appendix, § 308 (a)(b) B.
The Act further provides in Section 308 (c) of the same Title: "Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of active military service, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was ordered into such service, and shall not be discharged from such position without cause within one year after such restoration."
The issuance squarely presented to us is whether, in the circumstances of this case, the mandate of the statute that a veteran shall be restored to his former job without loss of seniority permits a labor-union collective-bargaining agreement to whittle down his existing seniority at the time of his induction into the armed forces, in consequence of the further mandate of the statute that he shall not be discharged without cause within one year from the date of his reemployment.
Lawrence Whirls was employed by the Highland Body Manufacturing Company on February 8, 1935, and continued to be an employee of that corporation until he entered the military service of the United States on October 23, 1942. When he was inducted into the armed forces, Whirls was working under an employment contract by which seniority was to be determined from the last date of hiring and to be upon a departmental basis. The contract had been made with the company by the collective bargaining agent of all its employees.
Upon his honorable discharge from the armed forces of the United States, Whirls was reemployed by the Highland Company on May 3, 1943, in his former capacity in the Painting Department. The Highland Body Manufacturing Company was the wholly owned subsidiary of another corporation, The Trailmobile Company. Both corporations manufactured the same commodities in separate plants, in Cincinnati, Ohio, and had the same executive officers. The employees of Highland numbered approximately 100, while Trailmobile had 1,000 employees. The commodity production of Highland totalled about $1,500,000; that of Trailmobile approximated $12,000,000.
After the reemployment of Whirls, a plan of liquidation of the Highland corporation was put into effect at the close of business on December 31, 1943. By that plan, Highland transferred and conveyed to The Trailmobile Company1 all its property and assets and its goodwill as a going concern; and Trailmobile assumed all the liabilities and obligations of Highland and undertook the performance of its outstanding contracts. Upon the effective date of the consolidation or merger, January 1, 1944, the employees of the Highland Body Manufacturing Company were transferred to the service and payroll of The Trailmobile Company.
Prior to the consolidation, the employees of both companies had been affiliated with the American Federation of Labor. As found by the District Court, that organization ruled that all employees of both companies should, after the consolidation, rate seniority as of the date each had individually been employed by the respective companies. But, after the consolidation, the employees of The Trailmobile Company selected the C.I.O. as its collective bargaining agent to negotiate an employment agreement with Trailmobile for all its employees. This collective bargaining agreement, negotiated by C.I.O. with The Trailmobile Company, was consummated and evidenced in writing sometime between the latter part of June and the middle of July, 1944.2
Admittedly, this labor contract fixed the seniority rights of the former employees of Highland as commenced on January 1, 1944, regardless of the actual date of employment of each individual. Thus, Whirl's seniority, dating from his original employment by Highland on February 8, 1935, was cut off and his seniority reduced to commence as of January 1, 1944. This vital reduction in his well advanced seniority status was made, notwithstanding lip service given fair treatment of the veteran in the following clause found in the C.I.O. bargaining agreement: "Employees entering a military, naval or other combat service, or conscripted by the United States in time of war will be considered on a leave of absence and will maintain and accumulate all seniority rights without interruption."
Represented by the United States Attorney, Whirls filed on September 18, 1945, in the United States District Court for the Southern District of Ohio a civil action against The Trailmobile Company. His complaint declared that, in violation of his lawful seniority status, he has been transferred from his position in the Painting Department, in which he had the highest seniority, to the Stock Department of The Trailmobile Company, where his pay is less; and that he has been deprived of his statutory rights to seniority as granted by Congress in the Selective Training and Service Act. Averring that he has been irreparably damaged and has no adequate remedy at law, he prayed a mandatory injunction directing his reinstatement by the defendant to his former position in its Painting Department and the restoration of his seniority to the date of his original employment, February 8, 1935.
After hearing the cause upon the oral stipulations of counsel and upon the exhibits introduced in evidence, the District Court filed findings of fact and conclusions of law; and entered judgment that Whirls "is entitled to a restoration of his seniority status among the employees of The Trailmobile Company as such seniority status existed prior to his entry into the military service, and that, therefore, he is entitled to seniority as of date of hiring with The Highland Body Manufacturing Company, to wit: February 8, 1935." The judgment entered directed that The Trailmobile Company reinstate the seniority of Whirls as of February 8, 1935, and cancel his present seniority status as of January 1, 1944. From this judgment appeals have been vigorously pressed by The Trailmobile Company, and the International Union, United Automobile, Aircraft, Agricultural Implement Workers of America, U.A.W.C.I.O., Local 390, which became a party defendant in the District Court by filing an intervening petition and participating in the proceedings there.
The appellant company insists that the legislative history of the Selective Training and Service Act does not justify the conclusion that Congress intended "to upset the established labor relations on the production front by requiring that labor contracts be construed to include provisions for placing returned World War II veterans in a position at the head of the seniority list." The veteran Whirls is not asking to be placed in a position at the head of the seniority list. He is merely complaining that, in consequence of a collective bargaining agreement between his employer and a labor union which he has been forced to join in order to retain his job, he has been unjustly and unlawfully deprived of his seniority status as it existed at the time he was inducted into the armed forces.
It is a matter of common knowledge that there was much opposition to the original Selective Training and Service Act. Its existence was prolonged by Act of Congress by the slim margin of one vote in the House of Representatives. Concurrently with its enactment and reenactment — and perhaps essentially so — there was held forth to the young men who were to be inducted into military service the strongest assurance that the status quo of their employee relationships would be preserved as securely as was reasonably possible.
There can be no reasonable doubt that in the mind and heart of the Congress the provisions of Section 308(c) of the Act were designed and felt to be benevolent and avuncular to the young men compulsorily chosen for military training and service in time of national need. The Act expressly declared that it was imperative to increase and train the personnel of the armed forces of the United States; and that the obligations and privileges of military training and service should be shared generally in accordance with a fair and just system of selection.
The Act was passed by Congress and approved by the President with full knowledge of the existence of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. That Act was...
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