Zaversnik v. Union Pac. R. Co.

• Decision Date: 09 May 1949
• Docket Number: Civ. A. No. 3139.
• Citation: 95 F. Supp. 209
• Parties: ZAVERSNIK et al. v. UNION PAC. R. CO. et al.
• Court: U.S. District Court — District of Wyoming

95 F. Supp. 209

ZAVERSNIK et al. v. UNION PAC. R. CO. et al.

Civ. A. No. 3139.

United States District Court D. Wyoming.

May 9, 1949.

John C. Pickett, U. S. Atty., and John S. Miller, Asst. U. S. Atty., Cheyenne, Wyo., for plaintiffs.

John U. Loomis, of Cheyenne, Wyo., and R. B. Hamer and John J. Burchell, Omaha, Neb., for defendant Union Pac. R. Co.

James O. Wilson, of Cheyenne, Wyo., and Richard R. Lyman of Toledo, Ohio (Mulholland, Robie & McEwen, of Toledo, Ohio, of counsel), for intervening defendants.

T. BLAKE KENNEDY, District Judge.

This is a suit brought under the Selective Training and Service Act of 1940, Title 50, U.S.C.A.Appendix, §§ 301 to 308, in which it is sought to require the defendant Union Pacific Railroad Company to restore the plaintiffs to the position of carmen as of the date which they would have completed their 1160 days of employment as temporary carmen had they not entered the military service of the United States. The suit is being presented by the United States Attorney at the request of the plaintiffs, without cost to them, under the provisions of the Act.

The action was originally brought against the Railroad Company but on application to the Court the labor organization to which all the individuals here concerned belong was permitted to intervene on its own behalf and particularly those members of the labor organization who would be adversely affected as to their seniority should the plaintiffs prevail. Issues were accordingly joined and the case was tried to the Court without the intervention of a jury and at the suggestion of counsel the Court permitted the issues to be submitted upon trial briefs to be filed by counsel. The last brief having been filed on April 22nd, the matter is now ready for consideration by the Court.

The actual facts underlying the litigation are not seriously in dispute so that the Court will not burden this memorandum with a specific detail as to the individual status of each plaintiff or the respective status of each individual of the intervening defendants as this may be left for inclusion in the findings of fact, if counsel should regard it as essential, together with such other jurisdictional and fundamental facts as may be material in supporting the conclusions of the Court. Suffice it to say that for the purposes of this memorandum, a sketch of the basic facts is that the plaintiffs, under the bargaining agreement between the railroad and the Federation which represented them, dating from November 1, 1934, were carried upon the rolls of the railroad company as "carman-helpers". They were subsequently, at various times, called into the service during the late war while carrying their respective seniority in the class above mentioned. At various times they had been elevated, or eligible to be elevated to the position of temporary carmen when eligible carmen who had through actual service justified their eligibility as carmen and had been granted that classification were not available, which classification included those who had served the actual required time or were otherwise eligible to such classification. There are separate and individual classifications as between carmen and carman-helpers. As a consequence, other carman-helpers not in the military service acquired a classification under the rules as carmen through actual mechanical experience with a seniority superior to plaintiffs and these are the ones whom the plaintiffs seek to supersede in their own favor.

The rights of the employees under contract between the railroad and the Federation are set forth and defined particularly in the Schedule of Rules introduced in evidence in rules 133 and 154, as follows:

"Rule 133. Qualifications. Any man who has served an apprenticeship or who has had four years' practical experience at carmen's work, and who with the aid of tools, with or without drawings, can lay out, build or perform the work of his craft or occupation in a mechanical manner, shall constitute a carman."

"Rule 154. In the event of not being able to employ carmen with four years experience, regular and helper apprentices will be advanced to carmen in accordance with their seniority. If more men are needed helpers will be promoted. If this does not provide sufficient men to do the work, men who have had experience in the use of tools may be employed. They will not be retained in service when four-year carmen become available.

"Note: Helpers advanced as above will retain their seniority as helpers."

The statute under which the suit is brought, hereinbefore referred to, purports to cover the situation of employment when an individual returns from his military service in that it is required that the employee shall 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 and that such person so restored shall be considered as having been on furlough or leave of absence during the period of training and service in the land or naval forces without loss of seniority and 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 inducted into such forces and shall not be discharged from such position without cause within one year after such restoration.

It is not in dispute that the plaintiffs here were classified as carman-helpers at the time they were inducted into the service and that upon their return they were restored to the same basis and classification, in compliance with the Federation rules hereinbefore quoted and there interpreted by the parties that in the case of a shortage of qualified carmen, helpers could be advanced temporarily as carmen with the same pay as qualified carmen while serving in such temporary capacity and that to become eligible as qualified carmen and to be classified as such they must have served in the capacity of temporary carmen for a period of four years, or as interpreted by the parties, for a period of 1160...