Witty v. Louisville and Nashville Railroad Company

• Decision Date: 02 March 1965
• Docket Number: No. 14662.,14662.
• Citation: 342 F.2d 614
• Parties: James W. WITTY, Plaintiff-Appellant, v. LOUISVILLE AND NASHVILLE RIALROAD COMPANY, Defendant-Appellee, and System Federation No. 91 of the Railway Employes' Department, AFL-CIO, Intervening Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

342 F.2d 614 (1965)

James W. WITTY, Plaintiff-Appellant, v. LOUISVILLE AND NASHVILLE RIALROAD COMPANY, Defendant-Appellee, and System Federation No. 91 of the Railway Employes' Department, AFL-CIO, Intervening Defendant-Appellee.

No. 14662.

United States Court of Appeals Seventh Circuit.

March 2, 1965.

Alan S. Rosenthal, Richard S. Salzman, Attys., Dept. of Justice, Washington, D. C., Richard P. Stein, U. S. Atty., Indianapolis, Ind., John W. Douglas, Asst. Atty. Gen., for appellant.

William T. Fitzgerald, Evansville, Ind., H. G. Breetz, M. D. Jones, Louisville, Ky., for defendant-appellee.

Richard R. Lyman, Toledo, Ohio, for intervening defendant-appellee, Mulholland, Hickey & Lyman, Toledo, Ohio, McCray, Clark, Statham & McCray, William E. Statham, Herman L. McCray, Evansville, Ind., of counsel.

Before CASTLE, KILEY and SWYGERT, Circuit Judges.

KILEY, Circuit Judge.

Plaintiff Witty, a reemployed veteran, sued under Sec. 9 of the Universal Military Training and Service Act,¹ claiming restoration of job seniority rights. After allowing System Federation No. 91 of the Railway Employes' Department, AFL-CIO, bargaining representative for Witty's Union — Brotherhood of Railroad Carmen — to intervene as a defendant, the court granted summary judgment against Witty, and he has appealed. We reverse.

Witty was a "carman helper" at the Railroad's Howell, Indiana shops when he was inducted into the armed forces on September 1, 1950. In his absence, because of a shortage of carmen mechanics, the Railroad and Witty's Union made an agreement under which carmen helpers could be upgraded temporarily to carmen mechanics. In April, 1951, nine helpers were upgraded to mechanic. One of them, Mitchell, had been junior to Witty in the helper grade. When Witty returned from military service, he accepted the higher grade employment as mechanic and was advanced to that status provisionally on April 14, 1952.

After satisfactory performance as a mechanic for a period of 1,040 days, a requirement of the upgrading contract, a temporarily upgraded carman had the right to the carman mechanic grade with seniority rights from the end of that period. If he exercised the right he lost his seniority as carman helper; if not, he could relinquish the mechanic status and revert to the helper grade with full seniority in that grade. In the latter event he could not be upgraded temporarily again.

Witty and the other upgraded employees completed the required 1,040 days as mechanics, the others meeting that requirement before Witty did. He was given seniority as a mechanic from the date he completed the 1,040 days work and accordingly was made junior to Mitchell. Witty's demand to be restored to seniority over Mitchell by virtue of Sec. 9 was denied by the Railroad. This suit, brought by the United States Attorney in Witty's behalf,² followed.

An affidavit submitted by the Railroad in support of its summary judgment motion tends to show that the advancement from carman helper to mechanic was "discretionary." An opposing affidavit for Witty tends to show that the advancement was "automatic." Presumably the district court decided the affidavits did not present a genuine issue of material fact, under F.R.Civ.P. 56(c). In support of its conclusion the district court cited only the decision of the Court of Appeals for the Eighth Circuit in Tilton v. Missouri Pac. R., 306 F.2d 870 (1962). The Eighth Circuit in Tilton relied upon McKinney v. Missouri-Kan.-Tex. R., 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958), in holding that a returning veteran was not entitled to advanced seniority where he could not show with certainty that had he remained on the job he would have accepted the opportunity for advancement and completed the training period in the shortest possible time. The Supreme Court rejected this "absolute foreseeability" interpretation of McKinney, and reversed the court of appeals judgment. Tilton v. Missouri Pac. R., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964).

The Railroad urges affirmance of the summary judgment under the rule announced in McKinney v. Missouri-Kan.-Tex. R., 357 U.S. 265, 78 S.Ct. 1222, because of the "discretion" reserved to the Railroad and Witty's Union in the agreement for temporary upgrading of the carmen helpers. The Supreme Court in Tilton, 376 U.S. at 180, 84 S.Ct. at 602, reads McKinney as holding that "where advancement depends on an employer's discretionary choice not exercised prior to entry into service, a returning veteran cannot show within the reasonable certainty required by the Act that he would have enjoyed advancement simply by virtue of continuing employment during the time he was in military service."

The facts in McKinney are different from those in the case before us. There the provision of the bargaining agreement governing McKinney's right of advancement was expressly dependent upon "fitness and ability" and the "exercise of a discriminating managerial choice." 357 U.S. at 272, 78 S.Ct. at 1227. The complaint was dismissed for failure to state a cause of action, and the court of appeals and the Supreme Court affirmed.

After announcing its holding, however, the Supreme Court, because McKinney claimed that the promotion he sought was not actually discretionary, remanded to give him an opportunity to make proof of that allegation. We think the McKinney case does not require us to affirm the summary judgment in favor of the railroad. On the contrary, it supports Witty's claim that he should be permitted to prove his allegations. The Supreme Court in Tilton adverted to the remandment in McKinney as an indication that the seniority right claimed did not require "absolute foreseeability of automatic advancement." 376 U.S. at 180, 84 S.Ct. at 602.

The Supreme Court in both McKinney and Tilton referred to the "escalator principle" announced in Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 284-285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230 (1946), entitling a reemployed veteran to step back on the "seniority escalator" at the "precise point he would have occupied had he kept his position continuously during the war." This principle was incorporated into the Act as Sec. 9(c) (2)...