Under § 9 of the Universal Military Training and Service Act,
petitioner, who had been promoted by respondent railroad to an
advanced position upon his return from military service, though,
under the collective bargaining agreement between his union and the
railroad, such promotion depended on fitness and ability, was not
entitled to seniority in his new position from the date he would
have had the opportunity to qualify for it had he remained in the
continuous employment of the railroad. Pp.
357 U. S.
266-274.
(a) Before bringing suit under § 9(d) of the Act, petitioner was
not obliged to pursue remedies possibly available under the
grievance procedure set forth in the collective bargaining
agreement or before the National Railroad Adjustment Board. Pp.
357 U. S.
268-270.
(b) Since promotion to the higher position in this case was not
automatic, but was dependent on fitness and ability, petitioner
received a promotion which was not required under the Act, and
respondent was not obliged to give him a seniority date earlier
than that to which any employee similarly promoted would have been
entitled. Pp.
357 U. S.
270-273.
(c) Because his complaint was dismissed and he had no
opportunity to prove that, by custom and practice under the
collective bargaining agreement, he would necessarily have been
promoted to the new position had he remained continuously in
respondent's employ, petitioner is granted leave to amend his
complaint to allege, if such be the fact, that, in actual practice
under the collective bargaining agreement, his promotion was
automatic. Pp.
357 U. S.
273-274.
240 F.2d 8, affirmed.
Page 357 U. S. 266
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This case arises out of proceedings to enforce the claim of a
veteran to reemployment rights under § 9 of the Universal Military
Training and Service Act. 62 Stat. 604, 614-618, as amended, 50
U.S.C.App. § 459, as amended, 50 U.S.C.App. (Supp. V) § 459. More
specifically, petitioner claims that he has been deprived of
seniority rights to which he is entitled under the statute and the
collective bargaining agreement in force between his employer,
respondent railroad, and the union representing its employees.
Made part of the complaint filed in the District Court are
provisions of the collective bargaining agreement regulating the
relations between respondent and its employees, especially
provisions relating to seniority and promotions. Employees are
divided into three groups according to the functions they perform,
with seniority defined within each group. Rule 10 provides that,
when new positions are available or vacancies occur in existing
positions, such positions will be "bulletined" by the employer, and
employees may bid therefor. Rule 1(3)(A) provides that
"Promotion will be confined to the group . . . , with the
exception that employees on positions enumerated in group two (2)
will be given preference
Page 357 U. S. 267
over nonemployees in the assignment to positions in group one
(1), based upon fitness and ability. . . ."
Rule 15 states that
"An employe returning after leave of absence may return to
former position or may, upon return . . . exercise seniority rights
to any position bulletined during such absence."
The complaint alleges that petitioner was employed by respondent
as a relief clerk-chief caller, a position classified under the
collective bargaining agreement in group 2. On September 26, 1950,
he left his employment for induction into the Armed Forces of the
United States. Petitioner was still in the Armed Forces when
respondent, pursuant to the procedure set forth in Rule 10 of the
collective bargaining agreement, bulletined two group 1 positions
to be filled. On September 8, 1952, the group 1 position of bill
clerk was bulletined, and a nonemployee assigned to it on September
15. On September 10, 1952, the group 1 position of assistant
cashier was bulletined, and a nonemployee assigned to it on
September 22. Petitioner was separated from the military service on
September 25, 1952, and, on October 1 applied for reemployment with
respondent. He was placed in the group 1 position of assistant
cashier with a group 1 seniority date of October 7, 1952.
Subsequently this position was abolished, and petitioner reduced to
a group 2 position. Respondent refused to allow petitioner to
exercise claimed seniority rights to place himself in the group 1
position of bill clerk in place of the nonemployee who had been
assigned to that position on September 15, 1952.
In the District Court, petitioner contended that the group 1
seniority date assigned him on reemployment, October 7, 1952, was
erroneous, and that, under § 9 of the Universal Military Training
and Service Act,
supra, he was entitled to a seniority
date of September 8 or September 10, 1952, the dates on which, if
he had then been employed by respondent, he could have applied for
the
Page 357 U. S. 268
bulletined group 1 positions. Such a seniority date, according
to petitioner, would have entitled him to replace the nonemployee
as bill clerk when the position of assistant cashier was abolished,
and thus avoided reduction to group 2.
Petitioner prayed the District Court to order respondent to
assign him the requested earlier seniority date and to permit him
to place himself in the position of bill clerk, and, in addition,
he sought compensation for wages lost as a result of being deprived
of the group 1 position. The District Court dismissed the complaint
for failure to state a cause of action under the Universal Military
Training and Service Act, and the Court of Appeals for the Tenth
Circuit affirmed. 240 F.2d 8. Because of the importance of the
question presented in the administration of the statute and the
protection of veterans' rights thereunder, we granted certiorari.
353 U.S. 948.
The Court of Appeals correctly held that petitioner was not
obliged, before bringing suit in the District Court under § 9(d) of
the Act, 62 Stat. 616, as amended, 50 U.S.C.App. (Supp. V) §
459(d), to pursue remedies possibly available under the grievance
procedure set forth in the collective bargaining agreement or
before the National Railroad Adjustment Board.
See 48
Stat. 1189-1193, 45 U.S.C. § 153. The rights petitioner asserts are
rights created by federal statute, even though their determination
may necessarily involve interpretation of a collective bargaining
agreement. Although the statute does not itself create a seniority
system, but accepts that set forth in the collective bargaining
agreement, it requires the application of the principles of that
system in a manner that will not deprive the veteran of the
benefits, in terms of restoration to position and advancement in
status, for which Congress has provided. Petitioner sues not simply
as an employee under a collective
Page 357 U. S. 269
bargaining agreement, but as a veteran asserting special rights
bestowed upon him in furtherance of a federal policy to protect
those who have served in the Armed Forces.
For the effective protection of these distinctively federal
rights, Congress provided in § 9(d) [
Footnote 1] of the Act that, if any employer fails to
comply with the provisions of the statute, the District Court, upon
the filing of a petition by a person entitled to the benefits of
the Act, has jurisdiction to compel compliance and to compensate
for loss of wages. The court is enjoined to order speedy
hearing
Page 357 U. S. 270
in any such case and to advance it on the calendar, and the
United States Attorney must appear and act for the veteran in the
prosecution of his claim if reasonably satisfied that he is
entitled to the benefits of the Act. Nowhere is it suggested that,
before a veteran can obtain the benefit of this expeditious
procedure and the remedies available to him in the District Court,
he must exhaust other avenues of relief possibly open under a
collective bargaining agreement or before a tribunal such as the
National Railway Adjustment Board. On the contrary, the statutory
scheme contemplates the speedy vindication of the veteran's rights
by a suit brought immediately in the District Court, advanced on
the calendar before other litigation and prosecuted with the
assistance of the United States Attorney. Only thus, it evidently
was thought, would adequate protection be assured the veteran,
since delay in the vindication of reemployment rights might often
result in hardship to the veteran and the defeat, for all practical
purposes, of the rights Congress sought to give him. To insist that
the veteran first exhaust other possibly lengthy and doubtful
procedures on the ground that his claim is not different from any
other employee grievance or claim under a collective bargaining
agreement would ignore the actual character of the rights asserted
and defeat the liberal procedural policy clearly manifested in the
statute for the vindication of those rights.
Section 9 of the Universal Military Training and Service Act, on
which petitioner relies, requires that a returning veteran who has
been separated from the service under the conditions set forth in
the statute be restored by his employer to his former position or
to a position of like seniority, status, and pay. He is not to be
disadvantaged by serving his country. Section 9(c) (1) states that
he shall be restored "without loss of seniority." [
Footnote 2]
Page 357 U. S. 271
In
Fishgold v. Sullivan Drydock & Repair Corp.,
328 U. S. 275,
328 U. S.
284-285, and
Oakley v. Louisville & N. R.
Co., 338 U. S. 278,
338 U. S. 283,
the same provision in an earlier Act was interpreted to mean that a
returning veteran does not step back at the exact point he left his
employment, but rather is entitled 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."
338 U.S. at
338 U. S. 283.
This interpretation is now embodied in § 9(c)(2) of the present
Act. [
Footnote 3]
However, § 9(c) does not guarantee the returning serviceman a
perfect reproduction of the civilian employment that might have
been his if he had not been called to the colors. Much there is
that might have flowed from experience, effort, or chance to which
he cannot lay claim under the statute. Section 9(c) does not assure
him that
Page 357 U. S. 272
the past, with all its possibilities of betterment, will be
recalled. Its very important but limited purpose is to assure that
those changes and advancements in status that would necessarily
have occurred simply by virtue of continued employment will not be
denied the veteran because of his absence in the military service.
The statute manifests no purpose to give to the veteran a status
that he could not have attained as of right within the system of
his employment even if he had not been inducted into the Armed
Forces but continued in his civilian employment.
Thus, on application for reemployment, a veteran is not entitled
to demand that he be assigned a position higher than that he
formerly held when promotion to such a position depends, not simply
on seniority or some other form of automatic progression, but on
the exercise of discretion on the part of the employer. On his
return from service, petitioner in the present case could not have
demanded under the statute that respondent place him in any group 1
position. Promotion to a group 1 position from group 2, in which
petitioner had formerly been employed, is not dependent simply on
seniority. Under Rule 1(3)(A) of the collective bargaining
agreement, it is dependent on fitness and ability and the exercise
of a discriminating managerial choice. Collective bargaining
agreements that include such familiar provisions are presupposed by
the statute, and it is in their context that it must be placed.
See Aeronautical Industrial District Lodge v. Campbell,
337 U. S. 521,
337 U. S. 527.
Petitioner was not entitled to a group 1 position simply because,
in his absence, it had been bulletined, and, if he had then been
employed, he might have applied for it, and respondent might have
found that he possessed the requisite fitness and ability. The
statute does not envisage overriding an employer's discretionary
choice by any such mandatory promotion.
Page 357 U. S. 273
Nor does it sanction interfering with and disrupting the usual,
carefully adjusted relations among the employees themselves
regarding opportunities for advancement.
The precise question in the present case is not essentially
different. Petitioner was not, by virtue of the fact that the group
1 position of assistant cashier had been bulletined in his absence,
entitled to that position on reemployment. Rule 15 of the
collective bargaining agreement states that an employee who returns
from leave of absence may "exercise seniority rights to any
position bulletined during such absence." But seniority alone does
not, under Rule 1(3)(A), entitle an employee to move from group 2
to group 1; fitness and ability are also relevant. Respondent
asserts that petitioner was, in fact, assigned to the group 1
position of assistant cashier through a mistake of law. Whatever
the reason, the fact of employment in the higher position did not
enlarge petitioner's rights under either the collective bargaining
agreement or the statute. Since respondent was not obligated to
give petitioner the higher position at all, when it did so, it was
not bound to give him a seniority date earlier than that to which
any employee similarly promoted would have been entitled. In this
case, that was the date on which petitioner's pay in the group 1
position commenced, and not a month earlier, when the position had
first been bulletined.
Petitioner argues that, because the complaint was summarily
dismissed on motion, he did not have the opportunity to prove that,
by custom and practice under the collective bargaining agreement,
he would necessarily have been assigned to the group 1 position of
bill clerk or assistant cashier had he remained continuously in
respondent's employ. He states that interpretation and practice by
the parties to an agreement are frequently the most reliable bases
for determining rights claimed to
Page 357 U. S. 274
arise under it. Accordingly, we affirm the judgment, but with
leave to petitioner to amend his complaint to allege, if such be
the fact, that, in actual practice under the collective bargaining
agreement, advancement from group 2 to group 1 is automatic.
The judgment is
Affirmed.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS dissent on the
merits.
[
Footnote 1]
"In case any private employer fails or refuses to comply with
the provisions of subsection (b), subsection (c)(1), or subsection
(g) of this section, the district court of the United States for
the district in which such private employer maintains a place of
business shall have power, upon the filing of a motion, petition,
or other appropriate pleading by the person entitled to the
benefits of such provisions, specifically to require such employer
to comply with such provisions and to compensate such person for
any loss of wages or benefits suffered by reason of such employer's
unlawful action:
Provided, That any such compensation
shall be in addition to and shall not be deemed to diminish any of
the benefits of such provisions. The court shall order speedy
hearing in any such case and shall advance it on the calendar. Upon
application to the United States attorney or comparable official
for the district in which such private employer maintains a place
of business, by any person claiming to be entitled to the benefits
of such provisions, such United States district attorney or
official, if reasonably satisfied that the person so applying is
entitled to such benefits, shall appear and act as attorney for
such person in the amicable adjustment of the claim or in the
filing of any motion, petition, or other appropriate pleading and
the prosecution thereof specifically to require such employer to
comply with such provisions:
Provided, That no fees or
court costs shall be taxed against any person who may apply for
such benefits:
Provided further, That only the employer
shall be deemed a necessary party respondent to any such
action."
62 Stat. 616, as amended, 50 U.S.C.App. (Supp. V) § 459(d).
[
Footnote 2]
"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 armed 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."
62 Stat. 604, 615, as amended, 50 U.S.C.App. § 459(c)(1).
[
Footnote 3]
"It is hereby declared to be the sense of the Congress that any
person who is restored to a position in accordance with the
provisions of paragraph (A) or (B) of subsection (b) should be so
restored in such manner as to give him such status in his
employment as he would have enjoyed if he had continued in such
employment continuously from the time of his entering the armed
forces until the time of his restoration to such employment."
62 Stat. 604, 615-616, as amended, 50 U.S.C.App. §
459(c)(2).