Walsh v. Chicago Bridge & Iron Co.

• Decision Date: 16 December 1949
• Docket Number: No. 48 C 838.,48 C 838.
• Citation: 90 F. Supp. 322
• Parties: WALSH v. CHICAGO BRIDGE & IRON CO.
• Court: U.S. District Court — Northern District of Illinois

90 F. Supp. 322

WALSH v. CHICAGO BRIDGE & IRON CO.

No. 48 C 838.

United States District Court N. D. Illinois, E. D.

December 16, 1949.

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Stephan, Henehan, McInerney & Gillespie, Chicago, Ill., for the plaintiff.

Walker B. Davis and Hopkins, Sutter, Halls, De Wolfe & Owen, Chicago, Ill., for the defendant.

SULLIVAN, District Judge.

This action is brought under Section 8(e) of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 308(e). The plaintiff alleges in his complaint that he was not restored to his former position in the employ of the defendant after his discharge from the Army in January of 1943. The defendant has denied these allegations in its answer and has served and filed a motion for a summary judgment of dismissal based upon the pleadings and the plaintiff's deposition which has been filed with the Court.

The plaintiff was employed in the defendant's Shipbuilding Division on June 24, 1942. The Shipbuilding Division was a separate division of the defendant organized shortly after Pearl Harbor. It engaged solely in the wartime work of building ships for the United States Navy. It was disbanded in November, 1945 when its work for the Navy was finished.

The plaintiff left the Shipbuilding Division when he was drafted in September, 1942. He served in the Army until he was discharged on January 14, 1943. He reported for work at the offices of defendant's Shipbuilding Division on the following day and was offered clerical work which he refused. He returned to work in the Shipbuilding Division on January 21, 1943 but did so under protest.

Within a month after January 21, 1943, the plaintiff telephoned several times from Chicago to the defendant's personnel manager at Seneca, asking that the defendant give him either the same position or something comparable and acceptable to him. The manager said he could do nothing for the plaintiff.

Between January 21 and about May 1, 1943, the plaintiff also made about three verbal demands on Mr. Marooux who was an assistant treasurer of the defendant and the head of the department in which the plaintiff worked. In these conversations the plaintiff said he was wholly dissatisfied and expected the defendant to take care of him but Mr. Marooux said he had nothing else to offer plaintiff.

The first of plaintiff's conversations with Mr. Grossman, the comptroller of the defendant, relating to his reemployment occurred during the week after plaintiff's discharge from the Army. At that time he told Grossman that he (plaintiff) "wasn't satisfied at all with what they had to offer," and that he "would listen to any kind of a reasonable offer they had to make, * * *."

In April, an offer was made by Grossman to employ plaintiff in the main office of defendant at the salary he was receiving, and in the rating he held, at the time of his induction. Mr. Grossman said the job would be "permanent after the war."

A few days later, plaintiff called on Grossman again and there was a further discussion of the job Grossman had offered. During this conversation, plaintiff learned that he would receive overtime compensation. He asked Grossman again whether the job would be "permanent after the war" and Grossman replied: "Yes. You're one of the main employees here and one of the regular employees here in the main office, and you will be kept on when this thing is all over." Plaintiff accepted the new job, and accordingly was transferred from the Shipbuilding Division to the main office. This transfer occurred on May 16, 1943.

The plaintiff worked in defendant's main office continuously thereafter until June 28, 1946 when his employment was terminated by the defendant notifying the plaintiff that his services were no longer needed.

The facts revealed in the plaintiff's deposition clearly indicate that this is a case where the plaintiff chose to accept a contract of employment in the defendant's permanent business organization in lieu of his alleged right to re-employment in defendant's temporary Shipbuilding Division. He has thereby waived any claim under the Selective Training and Service Act of 1940, and whatever rights he may have had thereunder have been extinguished by satisfaction. This case is governed by Hastings v. Reynolds Metals Co., D.C., 75 F.Supp. 300, affirmed on appeal, Hastings v. Reynolds Metals Co., 7 Cir., 1947, 165 F.2d 484. In dismissing Hastings' action on the merits, the Court stated: "That subsequent to petitioner's release from active military service he freely and voluntarily entered into a contract of employment with respondent, by which contract petitioner agreed to become employed by respondent upon the terms and conditions therein stated, including the condition that the employment could be terminated at any time by respondent, and therefore had he had any rights under the Selective Training and Service Act of 1940 his action in entering into said contract of employment would have waived said rights." 75 F.Supp. 302. In affirming, the Seventh Circuit Court of Appeals stated: "We concur in the conclusions and the result reached by the District Court, 75 F.Supp. 300 in respect to said contract. Appellant's employment by said written contract in January, 1946, waived his rights if any, to compel re-employment under the Act. The contract and not the statute thereafter determined his rights in respect to appellee." 165 F.2d 487.

In the case at bar the plaintiff, in addition to accepting a new contract of employment, worked on his new job for more than three years. This period extended more than eight months beyond the termination of the job in the defendant's wartime activity to which plaintiff claims he was entitled. During this entire period, plaintiff made no mention of any alleged rights under the Selective Training and Service Act of 1940. So long a lapse of time induced a reasonable belief on the part of the defendant that the plaintiff accepted fully the accord and satisfaction which had been reached, and it would be inequitable to permit the plaintiff now to attempt to repudiate the election he made on May 16, 1943.

The plaintiff admits that he entered into a new contract of employment in lieu of pressing his claim to reinstatement, but denies that this constitutes a waiver of his statutory right. It is not clear what the plaintiff relies upon to preclude a waiver. He refers to the regulations of the War Manpower Commission and states that the defendant refused to release plaintiff for work elsewhere as required by the War Manpower Commission. However, the plaintiff is in error as to the regulations of the War Manpower Commission.

Plaintiff returned to work for defendant on January 21, 1943. After conferences in April, 1943, he accepted a job in the defendant's main office and assumed the duties of his new position on May 16, 1943. In his deposition plaintiff testified that the defendant refused to give him a release despite the fact that in March of 1943 he had an offer to work for two other firms. However, the plaintiff was free to accept an offer of employment elsewhere at any time after his discharge until April 18, 1943. That was the effective date of War Manpower Commission No. 4, promulgated on April 16, 1943. This regulation, which appears in 8 Federal Register at page 5136, constituted the first restriction on transfers of workers in essential industries in Chicago. It required that a person obtain a statement of availability from his employer, or from the United States Employment Service, as a condition precedent to leaving one employer for a position elsewhere at a higher salary. The War Manpower Commission did not even have power to issue such a regulation prior to April 8, 1943, when Executive Order 9328, 50 U.S.C.A. Appendix, § 901 note, granted such authority to it. 8 Federal Register p. 4681.

The plaintiff in this action seeks only damages. He has not asked for actual reinstatement to the position he held in the Shipbuilding Division at the time of his induction. The suit is, therefore, legal in nature. Neither the Selective Training and Service Act of 1940 nor any other federal statute fixes the time within which an action based on alleged reemployment rights must be brought. In these circumstances it is the applicable state statute of limitations which prescribes the time within which the rights must be enforced.

This rule was established in Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 219, 39 L.Ed. 280. There the plaintiff, suing for infringement of a patent, sought to escape the state limitations statute on the ground that state statutes "have no application to causes of action created by congressional legislation and enforceable only in the federal courts." The Supreme Court held, however, that Federal courts were required by the Rules of Decision Act, 28 U.S.C.A. § 1652, to follow the applicable state statutes. The court said:

"Unless this be the law, we have the anomaly of a distinct class of actions subject to no limitation whatever, — a class of privileged plaintiffs who, in this particular, are outside the pale of the law, and subject to no limitation of time in which they may institute their actions."

"The truth is that statutes of limitations affect the remedy only, and do not impair the right, and that the settled policy of congress has been to permit rights created by its statutes to be enforced in the manner and...