U.S. ex rel. Adams v. General Motors Corp., 75-1018

• Decision Date: 08 October 1975
• Docket Number: No. 75-1018,75-1018
• Citation: 525 F.2d 161
• Parties: 90 L.R.R.M. (BNA) 3132, 77 Lab.Cas. P 11,161 UNITED STATES ex rel. Russell K. ADAMS, et al., Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 161

525 F.2d 161

90 L.R.R.M. (BNA) 3132, 77 Lab.Cas. P 11,161

UNITED STATES ex rel. Russell K. ADAMS, et al., Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.

No. 75-1018.

United States Court of Appeals, Sixth Circuit.

Argued June 5, 1975.

Decided Oct. 8, 1975.

Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Rex E. Lee, Asst. Atty. Gen., Civ. Div., William Kanter, Thomas S. Moore, Donald Etra, John K. Villa, App. Section, Civ. Div., Dept. of Justice, Washington, D. C., for plaintiffs-appellants.

Russell J. Thomas, Jr., General Motors Corp., Detroit, Mich., for defendant-appellee.

Before WEICK, LIVELY and ENGEL, Circuit Judges.

LIVELY, Circuit Judge.

This appeal is from summary judgment for the defendant in consolidated actions brought by the United States on behalf of eight veterans who claim that upon their return from military service their employer denied them rights which are guaranteed by Section 9 of the Selective Service Act of 1967 as amended, (the Act), 50 U.S.C. App. § 459. The pertinent provisions of Section 9 appear as an appendix to this opinion.

Each of the persons for whom relief was sought began his employment with General Motors (GM) as an unskilled worker. Pursuant to the terms of the collective bargaining agreement (the agreement) in effect between GM and the union representing its employees, GM was permitted to select unskilled workers from time to time for participation in an eight-year program leading to journeyman status in various skilled trades classifications. This is designated in the agreement as the "Employe-in-Training" (E.I.T.) program. A pay raise accompanied the transfer to E.I.T. status, and the worker so transferred thereafter performed the work of the skilled trades classification to which he was assigned, along with journeymen in the same classification. The agreement further provided for a change in status to "Employe-in-Training-Seniority" (E.I.T.S.) after completion of at least four years "of work" as an E.I.T. The provisions appeared in Sections 155 and 156 of the collective bargaining agreement:

(155) An employe transferred to a skilled trades classification in which he does not hold journeymen status, or a non-journeyman new-hire assigned to a skilled trades classification, shall be identified in the skilled trades classification in which he is working as an employe-in-training (e. g., "Lathe Operator (E.I.T.)", "Tool Maker (E.I.T.)") until his status is changed to an employe-in-training-seniority (E.I.T.S.) or he is reclassified as a journeyman in such classification in accordance with provisions of Paragraph (166) or (167).

(156) An employe, whose period of training is for more than four years, who completes or has completed at least four years of work as an employe-in-training (E.I.T.) in any one skilled trades classification in the plant, shall be identified in such skilled trades classification as an "Employe-in-Training-Seniority" (e. g., "Lathe Operator (E.I.T.S.)", "Tool Maker (E.I.T.S.)"), until classified as a journeyman in such classification in accordance with Paragraph (166) or (167), except as provided in Appendix C.

The change of an employee's status or identification from E.I.T. to E.I.T.S. did not involve any change in duties or a wage increase. However, such an employee did acquire additional protection from layoff at the time of this change as shown by a comparison of Sections 175 and 176 of the agreement:

(175) An employe-in-training (E.I.T.) who has not qualified as a journeyman may be retained in his classification until displaced by:

(1) A fully qualified journeyman in the plant;

(2) A newly graduated apprentice;

(3) An employe-in-training-seniority (E.I.T.S.);

(4) A reduction in force.

(176) An employe-in-training-seniority (E.I.T.S.) may be retained in the skilled classification in which he is classified as an employe-in-training-seniority (E.I.T.S.) until displaced by:

(1) An employe with more seniority in the classification;

(2) A reduction in force.

Each of the plaintiffs in this action had been assigned to a skilled trades classification and was working as an E.I.T. at the time he left the employment of GM for military service. Upon his return to work at GM each was returned to E.I.T. status. However, before any of the plaintiffs had completed four years of actual work at GM and attained E.I.T.S. status a reduction in force took place and all eight were displaced from their skilled trades classification jobs, with a consequent loss of wages and of time credited toward becoming journeymen. On the other hand, non-veterans who had entered the E.I.T. program at later dates than the plaintiffs were retained in their skilled trades classification jobs because they had achieved E.I.T.S. status.

GM argues that Appendix C of the agreement gave the plaintiffs the protection guaranteed by the Act in providing that

An employe whose training in the skilled trades was interrupted by a leave of absence (for military service) . . . and who thereafter qualifies for status as an employe-in-training-seniority (E.I.T.S.) or is reclassified as a journeyman in the skilled trades, shall, at such time, be given the same E.I.T.S. date or journeyman seniority date as he would have received if he had not been on such leave.

It is maintained on behalf of the plaintiffs that the quoted provision did not adequately protect them. The dispute in this case, they assert, concerns the date they qualify for E.I.T.S. status, not the seniority date which will be assigned "at such time" as the qualification occurs. They are not claiming that their time in military service should be counted toward the eight-year requirement for advancement to journeymen. They concede that they must perform eight years of actual work for GM in combined E.I.T. and E.I.T.S. status to receive this promotion. However, they argue that GM's refusal to count their time in military service toward the achievement of E.I.T.S. status has deprived them of the opportunity to continue their progression toward journeyman rating solely because of their absence on military duty and has resulted in their being displaced by non-veteran employees who overtook them while they were performing military service. This is expressed in the prayer of the identical amended complaints

(a) That defendant be ordered to grant plaintiff the priority status with regard to availability of work which he would have received had he remained continuously employed during the period of his military service . . . .

The district court, sitting without a jury, concluded from stipulated facts that "the right to E.I.T.S. status is derivative upon actual on-the-job training, and not upon the mere passage of time." The stipulation of facts discloses that E.I.T. and E.I.T.S. employees in the same skilled trades classifications "perform essentially the same types of work" and that individual work assignments were based on ability to do a particular task without reference to the status of the employee. Furthermore, receipt of E.I.T.S. status was not contingent upon successful completion of a proficiency test (Stip. XV) and "(l)ess than one per-cent, if any, of the employees who have been in the E.I.T. program have been demoted from that program to their former unskilled classifications for lack of progress in the skilled classification in which they were employes-in-training." (Stip. XVI). Finally, it was stipulated that if the plaintiffs had remained continuously employed by GM rather than entering military service they would have achieved E.I.T.S. status by August 1, 1971 (Stip. XVII), which was prior to their being removed from the E.I.T. program because of reduction in forces.

In Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946), the Supreme Court, in dealing with veterans' reemployment rights under the Act stated "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." 328 U.S. at 284-85, 66 S.Ct. at 1111. This holding was subsequently codified by Congress as Section 9(c)(2) of the Act, 50 U.S.C. App. § 459(c)(2). The Court made it clear in Aeronautical Lodge v. Campbell, 337 U.S. 521, 526-27, 69 S.Ct. 1287, 1290, 93 L.Ed. 1513 (1949), that "Congress was not creating a system of seniority but recognizing its operation as part of the process of collective bargaining" in providing for restoration of returning veterans to their former positions "without loss of seniority," as provided in Section 459(c)(1). Thus we must determine whether under GM's interpretation of the agreement the plaintiffs lost seniority rights by reason of their absence for military service which they otherwise would have acquired under the agreement. This question is answered in the affirmative by the stipulation of facts recited above.

If the plaintiffs had remained continuously employed in the E.I.T. program rather than entering upon military duty they would have achieved E.I.T.S. status before the reduction in forces caused them to be dropped from the program and, obviously, before any of the non-veterans who entered E.I.T. after their date of entrance. The only change in status effected by moving from E.I.T. to E.I.T.S. was that the employee gained additional protection from layoff. As an E.I.T., he could be displaced by a person in any of three listed categories, while as an E.I.T.S. he could be displaced only by "(a)n employe with more seniority in the classification." Agreement, Section 176. Such lay-off protection is a classic "perquisite of seniority" which is protected by the Act. See Accardi v. Pennsylvania R. Co.,383 U.S. 225, 230, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966). As the Court said in Fishgold, ". . . these provisions (now Section 9(b) and (c)) guarantee the veteran against loss of position or loss of seniority by...