United States v. North American Creameries, Civ. No. 1214.

• Decision Date: 10 February 1947
• Docket Number: Civ. No. 1214.
• Citation: 70 F. Supp. 36
• Parties: UNITED STATES ex rel. UNRUH v. NORTH AMERICAN CREAMERIES, Inc., et al.
• Court: U.S. District Court — District of North Dakota

70 F. Supp. 36

UNITED STATES ex rel. UNRUH v. NORTH AMERICAN CREAMERIES, Inc., et al.

Civ. No. 1214.

District Court, D. North Dakota, S. D.

February 10, 1947.

P. W. Lanier, U. S. Dist. Atty., of Fargo, N. D., for petitioner.

C. W. Burnham, of Carrington, N. D., for respondent North American Creameries, Inc.

Quentin N. Burdick, of Fargo, N. D., for respondents, Teamsters' Union Local No. 116 and F. R. Layne, Chairman of the Grievance Committee of Teamsters' Union Local No. 116.

VOGEL, District Judge.

This case is brought under the provisions of the Selective Training and Service Act of 1940, 54 Stat. 885, 50 U.S.C.A.Appendix, § 308, by the United States of America upon relation and for the use and benefit of Orville J. Unruh, an honorably discharged veteran of World War II. The defendants are North American Creameries, Inc., Unruh's former and present employer, and Teamsters' Union Local No. 116 and F. R. Layne, Chairman of the Grievance Committee of Teamsters' Union Local No. 116.

The complaint asks for judgment restoring Unruh "to his position with said North American Creameries, Inc., under his seniority rights and for judgment for such sum as will compensate him for lost wages and compensation from January 10, 1946, to the date of the hearing * * *" and "for an injunction enjoining the respondent Teamsters' Union No. 116, F. R. Layne and all other persons from interfering with or molesting said Orville J. Unruh in the performance of his duties in the employment of said North American Creameries, Inc." Unruh, for whose benefit the action has been instituted, has stated in open court that he desired no money judgment against the North American Creameries, Inc., and his counsel has advised the Court that in view of Unruh's desire not to obtain a money judgment against the creamery, he believed no money judgment should be given against any of the defendants. Accordingly, that portion of the prayer for relief asking for a money judgment will be disregarded.

The facts pertinent to a determination of the issue are as follows:

Orville J. Unruh was first employed by the North American Creameries, Inc., in the fall of 1936. He was what is known as a seasonal employee, the time of his employment depending on the employer's business, the weather and the condition of roads over which the employer's trucks traveled. Generally, the employment ran from some time in April (seldom later than June 1st) until the middle or latter part of December of each year. Unruh continued such seasonal employment with North American Creameries, Inc., for the years 1937, 1938, 1939, 1940 and 1941. He received his last regular seasonal lay-off in December, 1941. Unruh was not thereafter re-employed prior to his induction into United States military service July 2, 1942.

It was the general custom each spring for seasonal employees to return to the employer's plant when the weather and other conditions indicated to them that trucking on the highways would be commenced. Such seasonal employees then reported for work or advised the employer as to their availability. It was not the general custom for the employer to call the employees back. Such general custom, however, was not invariable, and the record indicates that on occasions the manager of the employer did call employees back to work when they were needed. Unruh was not called back to work at any time between December, 1941, when he was laid off, and July 2, 1942, when he entered military service, nor during such time did he appear at the employer's plant and indicate his availability for employment.

During a portion of the period we are now referring to, and beginning with the week ending April 11, 1942, until June 27, 1942, Unruh did obtain employment by the Haggart Construction Company at a wage greater than he would have earned had he been employed by the North American Creameries, Inc. It was customary for seasonal employees to seek other means of livelihood during the lay-off period and he claims his employment by the Haggart Construction Company was of such a nature. He testified that he considered himself an employee of North American Creameries, Inc. The manager of the North American Creameries, Inc., also considered him an employee for he stated in the record (Tr. 36), "Well, I knew he was going to be inducted and that is why I didn't call him." There is further testimony in the record by another employee, Ebentier, who was also a member of the Selective Service and Training Board for that county, that on about June 1, he talked with the manager of the employer and advised him definitely that Unruh was to receive his call for induction on June 19. Such date is after the employer had begun to hire men for the spring work but does not contradict nor preclude the truth of the manager's statement referred to above that Unruh was not called back because he knew he was going to be inducted. The manager did testify under cross-examination that had Unruh reported for work in the spring "he most likely could have gotten on in the middle of May or possibly the first of June." (Tr. 38)

During the time Unruh was in military service, the employees of the North American Creameries, Inc., formed a union, Teamsters' Union Local No. 116, one of the defendants herein, and on September 10, 1943, they entered into a contract with the employer, which contract established the seniority rights of the employees. Such contract is not in evidence. No party to the record desired its introduction.

Unruh remained in the military service until November 21, 1945. On approximately December 1, he returned to the employer's plant and communicated to the manager thereof his desire for re-employment. He advised the manager that he wanted the month of December to himself but that he would be ready to return to work immediately after the first of the year (1946). He was told to be ready on January 2, at which time he did return and did start working. After having so worked for a period of 10 days, he was called in by the employer's manager and advised that at the request of the union he would have to be released. Unruh was accordingly discharged and remained unemployed until April 26, 1946, at which time he was called back by the employer, put to work, and has remained so working for the employer ever since.

Subsequent to his return to work, he attempted to join the union, which right was denied him for the reason, as stated by him, that this case was coming up.

All of Unruh's rights in the instant action are contained in the Selective Training and Service Act of 1940, 54 Stat. 885, as amended, 50 U.S.C.A.Appendix, § 308, which, in substance, provides that an honorably discharged serviceman who, in order to perform training and service in the land or naval forces of the United States, left a permanent position, shall, if qualified to perform the duties of the position, upon making timely application for re-employment after his discharge, 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."

The Act also provides that such service man "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 defendants, Teamsters' Union and Layne, challenge Unruh's status as an employee and claim that at the time of his induction into service he was an employee of Haggart Construction Company and that by working for Haggart Construction Company between the week ending April 11, 1942, until June 27, 1942, Unruh lost any rights he might have had to re-employment by the North American Creameries, Inc. I think that contention is not sustained by the record. It was customary for seasonal employees to seek other means of livelihood during the unemployed period of the year, keeping themselves subject to call by the employer or returning to the employer's plant for instructions as to when they could go back to work, and it seems to me that Unruh did little more than this. True, his period of employment by the Haggart Construction Company extended past the normal time for return to work for the North American Creameries, Inc., and North American Creameries did employ other men during that period. It is also true, however, that North American did not request his return and there is the definite statement that their...