1. Under § 8(c) of the Selective Training and Service Act of
1940, the expiration of one year of reemployment of a veteran by
his pre-service employer does not terminate the veteran's right to
the seniority to which he is entitled by virtue of the Act's
treatment of him as though he had remained continuously in his
civilian employment.
Fishgold v. Sullivan Corp.,
328 U. S. 275;
Trailmobile Co. v. Whirls, 331 U. S.
40, distinguished. Pp.
338 U. S.
279-285.
2. A United States District Court could entertain a complaint
filed by a veteran to enforce his right to such seniority, even
though the complaint was not filed until nearly three months after
the expiration of such year of reemployment. Pp.
338 U. S.
284-285.
170 F.2d 1008, 171 F.2d 128, reversed.
The District Court dismissed two actions brought by veterans
under § 8(e) of the Selective Training and Service Act of 1940 to
enforce their rights to seniority under § 8. The Court of Appeals
affirmed. 170 F.2d 1008, 171 F.2d 128. This Court granted
certiorari. 336 U.S. 943.
Reversed and remanded, p.
338 U. S.
285.
Page 338 U. S. 279
MR. JUSTICE BURTON delivered the opinion of the Court.
In both No. 28 and No. 29, the issue is whether, under the
Selective Training and Service Act of 1940, [
Footnote 1] one year of reemployment of a veteran
by his pre-service employer terminated that veteran's right to the
seniority to which he was entitled by virtue of that Act's
treatment of him as though he had remained continuously in his
civilian employment. For the reasons hereinafter stated, and
pursuant to our previous decisions, our answer is "No." In No. 29,
there is the further question whether, after the expiration of such
year, a United States District Court could entertain a complaint
filed by the veteran to enforce his right to such seniority. Our
answer is "Yes."
In each case, a veteran sought, in the United States District
Court for the Eastern District of Kentucky, a declaratory judgment
and an order restoring him to the seniority which he claimed he
would have had if he had remained continuously in his civilian
employment. In No. 28,
Oakley, the petitioner, alleged
that, when he was inducted into the armed forces on May 7, 1944, he
was employed as a locomotive machinist at Loyall, Kentucky,
Page 338 U. S. 280
by the respondent, Louisville & Nashville Railroad Company;
that, on May 22, 1946, he was honorably discharged from the armed
forces; that, on July 17, 1946, he was reemployed by the respondent
as a locomotive machinist with seniority from that date; that, on
July 1, 1945, while he was with the armed forces, the respondent's
Loyall Shop was transferred to Corbin, Kentucky; "that, had he not
been in the armed forces, he would have been transferred to the
Corbin Shop with seniority from July 1, 1945 . . . ;" and that,
because of the respondent's failure to credit him with seniority
from the earlier date, he has been subjected to certain
disadvantages in working hours and to an increased possibility of
being laid off from his employment. He filed his complaint, April
14, 1947, under § 8(e) of the Selective Training and Service Act of
1940, 54 Stat. 891, as reenacted, 60 Stat. 341, 50 U.S.C. App. §
308(e). The court, on its own motion, assigned the case for
argument
"upon the question whether, under the opinion of the Supreme
Court in
The Trailmobile Company et al. v. Whirls, (No.
85, April 14, 1947), the cause has been rendered moot by the
expiration of the statutory year to which Section 8(c) of the
Selective Training and Service Act limited plaintiff's right to any
special or preferential standing in respect to restored
seniority."
Thereupon, the collective bargaining agent of the machinist
employees of the respondent, which had intervened as a defendant,
moved to dismiss the cause on the ground that more than one year
had elapsed since the date of the petitioner's restoration to his
employment. This motion is here considered upon the basis of the
facts pleaded in the complaint. [
Footnote 2]
Page 338 U. S. 281
In No. 29, Haynes, the petitioner, alleged that, when he
enlisted in the armed forces on February 1, 1942, he was employed
as a machinist helper at Somerset, Kentucky, by the respondent,
Cincinnati, New Orleans, and Texas Pacific Railway Company
(originally sued as the Southern Railway System); that, on October
31, 1945, he was honorably discharged from the armed forces; that,
on November 16, 1945, he was reemployed by the respondent as a
machinist helper, with seniority from that date;
"that, during his service in the armed forces, the defendant
company promoted six helper machinists to helper apprentices, and
that these six men were junior in seniority to himself, and that,
had he not entered the armed forces as above mentioned, he would
have been promoted to helper apprentice and would have been given
the pay as such . . . ;"
and that such rate of pay exceeded that of the petitioner during
his reemployment. He filed his complaint February 14, 1947, asking
for restoration to his claimed status and for the additional
compensation to which that status would have entitled him. The
respondent answered, but certain intervening defendants, following
a procedure similar to that, in No. 28, filed a motion to dismiss
the cause for the reasons there stated.
The District Court heard the motions together and dismissed both
actions. [
Footnote 3] The Court
of Appeals for the Sixth
Page 338 U. S. 282
Circuit affirmed. 170 F.2d 1008; 171 F.2d 128. We granted
certiorari, 336 U.S. 943 because of the close relation of these
dismissals to our decisions in
Fishgold v. Sullivan Drydock
& Repair Corp., 328 U. S. 275, and
Trailmobile Co. v. Whirls, 331 U. S.
40.
The court below recognized that § 8(c) [
Footnote 4] granted to the respective veterans special
statutory protection against discharge without cause and against
loss of certain benefits during the first year of their
reemployment. That court, however, concluded also that the
expiration of that year not only terminated the veteran's right to
such special statutory protection, but likewise automatically
terminated his right to the seniority in the restored position
which he would have had if he had remained continuously in his
civilian employment. That additional conclusion is not justified by
the opinions of this
Page 338 U. S. 283
Court or by the terms of the Act. We reserved the point in the
Trailmobile case,
supra:
"We find it unnecessary therefore to pass upon petitioners'
position in this case, namely, that all protection afforded by
virtue of § 8(c) terminates with the ending of the specified year.
We hold only that so much of it ends then as would give the
reemployed veteran a preferred standing over employees not veterans
having identical seniority rights as of the time of his
restoration. We expressly reserve decision upon whether the
statutory security extends beyond the one-year period to secure the
reemployed veteran against impairment in any respect of equality
with such a fellow worker."
331 U.S. at
331 U. S.
60.
In the
Fishgold case, we did not deal with the effect,
if any, upon a veteran's seniority of the expiration of his first
year of reemployment. We there dealt with the initial terms of his
restored position. We stated, in effect, that an honorably
discharged veteran, covered by the statute, was entitled by the Act
to be restored not to a position which would be the precise
equivalent of that which he had left when he joined the armed
forces, but rather to a position which, on the moving escalator of
terms and conditions affecting that particular employment, would be
comparable to the position which he would have held if he had
remained continuously in his civilian employment.
Fishgold v.
Sullivan Drydock & Repair Corp., 328 U.
S. 275,
328 U. S.
284-285;
see also Aeronautical Lodge v.
Campbell, 337 U. S. 521,
337 U. S. 526.
In the
Trailmobile case,
supra, at pages
331 U. S. 56 and
331 U. S. 60, we
dealt with the one year of special statutory protection given to
the veteran in his restored position. We said, in effect, that this
provision protected him not only from the total loss of that
position by "discharge" from it "without cause," but that it also
protected
Page 338 U. S. 284
him, for one year, against the loss of certain other benefits
incidental to his restored position.
The instant cases take us one step further. In them, we hold
that the expiration of the year did not terminate the veteran's
right to the seniority to which he was entitled by virtue of the
Act's treatment of him as though he had remained continuously in
his civilian employment; nor did it open the door to discrimination
against him as a veteran. Section 8(c) of the Act requires that the
veteran shall be restored to his position "without loss of
seniority. . . ." He therefore assumes, upon his reemployment, the
seniority he would have had if he had remained in his civilian
employment. His seniority status secured by this statutory wording
continues beyond the first year of his reemployment, subject to the
advantages and limitations applicable to the other employees.
In the instant cases, the respective complaints stated, in
effect, that the complainants therein had not been restored to the
places to which they were entitled on the escalators of their
respective civilian employments. In No. 28, the allegation was that
the petitioner was entitled, by virtue of the status he would have
enjoyed had he remained continuously in his civilian employment, to
the seniority of a locomotive machinist at Corbin from July 1,
1945, rather than from July 17, 1946. If he were entitled to the
higher rating upon his reemployment, the Act did not deprive him of
that rating merely by virtue of the expiration of his first year of
reemployment. The motion to dismiss this action because of the
expiration of that year, accordingly, should have been denied.
In No. 29, we reach the same result. That result is not affected
by the failure of the veteran, in this case, to file his complaint
until nearly three months after the expiration of his first year of
reemployment. The Act did not establish a one-year statute of
limitations upon the assertion
Page 338 U. S. 285
of the veteran's initial rights of reemployment. It added
special statutory protection, for one year, against certain types
of discharges or demotions that might rob the veteran's
reemployment of its substance, but the expiration of that year did
not terminate the right of the veteran to the seniority to which he
was, in the first instance, entitled by virtue of the Act's
treatment of him as though he had remained continuously in his
civilian employment.
The judgment of the Court of Appeals in each case is therefore
reversed, and the respective causes are remanded for further
proceedings not inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE JACKSON concurs in the result.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of these cases.
* Together with No. 29,
Haynes v. Cincinnati, New Orleans
& Texas Pacific Railway Co. et al., also on certiorari to
the same court.
[
Footnote 1]
See especially § 8(a), (b), (c) and (e), 54 Stat. 890,
as amended, 56 Stat. 724, 58 Stat. 798, 60 Stat. 341, 50 U.S.C.
App. § 308(a), (b), (c) and (e).
See also Fishgold v. Sullivan
Drydock & Repair Corp., 328 U. S. 275,
328 U. S. 278,
328 U. S.
280-281, for reprints of the material portions of the
Act.
[
Footnote 2]
The respondent previously had answered, filed a request for
admissions under Rule 36, Federal Rules of Civil Procedure,
received petitioner's admissions, and moved for summary judgment on
the pleadings, the admissions, and an affidavit filed in support of
the motion. In the meantime, System Federation No. 91 of the
Railway Employes' Department of the American Federation of Labor,
acting on its own behalf and as the collective bargaining agent of
respondent's machinist employees, was permitted to intervene and to
answer. It then filed the motion to dismiss the cause which was
acted upon by the court. Accordingly, neither the answers nor the
motion for summary judgment is before us, and we have considered
the case on the petitioner's allegations in his complaint.
[
Footnote 3]
In No. 28, the court said:
"This cause coming on to be heard on the motion of the
intervening defendants to dismiss the cause on the ground that the
question presented has become moot because more than one year has
elapsed since the date of the plaintiff's restoration to employment
with the defendant, L. & N. Railroad Company, and, the Court
being advised, it is ordered and adjudged that said motion be, and
the same is hereby, sustained, and this action is now dismissed as
moot, without cost to either the plaintiff, or the defendant, or
the intervening defendants."
In No. 29, the entry was the same except for the name of the
defendant railway.
[
Footnote 4]
"SEC. 8. . . ."
"
* * * *"
"(c) Any person who is restored to a position in accordance with
the provisions of paragraph (A) or (B) of subsection (b) shall be
considered as having been on furlough or leave of absence during
his period of training and service in the land or naval forces,
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 inducted into such forces, and
shall not be discharged from such position without cause within one
year after such restoration."
54 Stat. 890, as reenacted, 60 Stat. 341, 50 U.S.C. App. §
308(c).