Petitioners were employees of respondent railroad who had been
provisionally "upgraded" (advanced) from helpers to journeymen in
accordance with an agreement between their union and the railroad,
under which permanent seniority status as journeymen could be
achieved following completion of a prescribed work period in the
upgraded position. Petitioners' completion of the work period was
delayed by their absence in military service, resulting in
previously junior nonveterans completing the work period before
petitioners, and thereby attaining status senior to that of
petitioners. Seeking restoration of seniority rights under Section
9 of the Universal Military Training and Service Act, petitioners
brought this action in the District Court, which denied relief, and
the Court of Appeals affirmed on the ground that petitioners'
promotions were subject to contingencies and "variables" which
precluded their advancement in status under the Act.
Held:
1. Under § 9(c)(1) and the "escalator principle" embodied in §
9(c)(2) of the Act, petitioners, upon completion of the work
period, were entitled to seniority as of the earlier date on which
they would have completed the work period but for their absence in
military service.
Diehl v. Lehigh Valley R. Co., 348 U.S.
960, followed. Pp.
376 U. S.
175-177.
2. Petitioners' advancement, unlike that involved in
McKinney v. Missouri-Kansas-Texas R. Co., 357 U.
S. 265, did not depend upon the exercise of management
discretion, but was reasonably automatic and foreseeable. Pp.
376 U. S.
180-181.
306 F.2d 870 reversed and remanded.
Page 376 U. S. 170
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
Since 1940, Congress, as an integral part of selective service
legislation, has protected the reemployment rights of veterans.
[
Footnote 1] The principle
underlying this legislation is
Page 376 U. S. 171
that he who is "called to the colors [is] not to be penalized on
his return by reason of his absence from his civilian job."
Fishgold v. Sullivan Drydock & Repair Corp.,
328 U. S. 275,
328 U. S. 284.
Petitioners, reemployed veterans, sued respondent railroad, their
employer, in the District Court for the Eastern District of
Missouri. [
Footnote 2] They
claimed that they have been deprived of seniority rights to which
they are entitled under the Universal Military Training and Service
Act and the applicable collective bargaining agreement.
The District Court [
Footnote
3] held that petitioners were not entitled to the relief they
sought. The Court of Appeals
Page 376 U. S. 172
for the Eighth Circuit affirmed. 306 F.2d 870. We granted
certiorari, 372 U.S. 905, because of the importance of the question
in administering the statute protecting veterans' reemployment
rights. For the reasons stated below, we reverse the judgments of
the Court of Appeals.
The facts are not in dispute. Petitioners were initially
employed by respondent railroad as carmen helpers. At the time of
their original employment and since, the railroad has suffered from
a shortage of qualified journeymen carmen mechanics. The collective
bargaining agreement between the union representing the carmen, the
Brotherhood Railway Carmen of America, and the railroad has
provided methods for alleviating this shortage. [
Footnote 4] Whenever the railroad is unable
to employ persons presently qualified as carmen mechanics, the
agreement provides for the advancement or "upgrading" of carmen
helpers to provisional carman status. Representatives of the
railroad and the union jointly select the helpers to be so
advanced. A helper thus "upgraded" can then be employed by the
railroad to perform the work of a journeyman carman mechanic and is
entitled to be paid a carman mechanic's wage.
Under the labor agreement, however, the "upgraded" helper does
not immediately acquire permanent seniority
Page 376 U. S. 173
as a journeyman. He retains his seniority as a helper until
completing 1,040 days of actual work as a carman mechanic. At the
end of that time, the upgraded helper is considered a "qualified
carman." He may then acquire a seniority date as a journeyman by
making an election to that effect in writing.
Petitioners were upgraded from carmen helpers in accordance with
the terms of the agreement. They were subsequently inducted into
military service. At the time of his induction, Tilton had worked
145 days as a carman, Beck 851 days, and McClearn 21 days. Upon his
honorable discharge from military service, each petitioner promptly
returned to employment at the railroad, was reemployed as an
upgraded carman, and thereafter satisfactorily completed the
remainder of the 1,040-day work period necessary to qualify for
journeyman status. Each thereupon immediately elected to acquire
seniority as a journeyman carman mechanic. In each case, the
railroad established petitioners' seniority as journeymen as of the
date each actually completed the 1,040-day work period. As a
result, petitioners had journeyman seniority junior to that of some
carmen who had been upgraded to provisional carman status after
petitioners were so advanced but who -- because they were not
absent in military service -- were able to complete the 1,040-day
service requirement before petitioners.
These nonveterans are now ahead of petitioners on the journeymen
carmen's seniority roster, and enjoy the advantages which seniority
dictates, such as work preference and order of layoff and
recall.
Petitioners contend that, under this arrangement, their absence
in military service improperly affected their seniority because
nonveteran employees who were junior on the temporary upgraded list
are now senior on the permanent carmen's list.
Page 376 U. S. 174
Petitioners' claim rests upon §§ 9(c)(1) and 9(c)(2) of the
Universal Military Training and Service Act. In § 9(c)(1), Congress
directed that veterans returning from military service be restored
to their civilian employment "without loss of seniority." This
provision was first enacted as part of the National Guard Act,
Joint Resolution of August 27, 1940, c. 689, 54 Stat. 858. The
Chairman of the House Military Affairs Committee, in reporting the
conference and final version of the bill, explained that one of the
purposes of the reemployment provisions was to ensure restoration
of the veteran to his "seniority status." 86 Cong.Rec. 10761. The
reemployment provisions, including what is now § 9(c)(1), were
carried over into the Selective Service Bill, 86 Cong.Rec.
10922-10923, and became § 8 of the Selective Training and Service
Act of 1940, 54 Stat. 885, 890, as amended, 50 U.S.C.App. (1946
ed.) § 308.
In
Fishgold v. Sullivan Drydock & Repair Corp.,
328 U. S. 275, the
Court first considered and specifically interpreted the language in
§ 8(c) of the 1940 Act [
Footnote
5] dealing with restoration to veterans of their civilian
employment "without loss of seniority." The Court said:
"Congress recognized in the Act the existence of seniority
systems and seniority rights. It sought to preserve the veteran's
rights under those systems and to protect him against loss under
them by reason of his absence."
Id., at
328 U. S. 288.
The Court observed:
"Thus, he does not step back on the seniority escalator at the
point he stepped off. He steps back on at the precise point he
would have occupied had he kept his position continuously during
the war."
Id. at
328 U. S.
284-285.
Page 376 U. S. 175
This "escalator principle" was reaffirmed by the Court in
Trailmobile Co. v. Whirls, 331 U. S.
40, and restated in
Oakley v. Louisville &
Nashville R. Co., 338 U. S. 278,
338 U. S.
283:
"[A]n honorably discharged veteran, covered by the statute [is]
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."
Following these decisions, Congress, in 1948, expressly approved
the "escalator principle" and continuous employment standard
applied by the Court by adopting § 9(c)(2) of the present Act,
which provides:
"It is 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 (d) of this section 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).
Section 9(c)(2), in effect, confirms the Court's interpretation of
the meaning of § 8(c) of the 1940 Act, which is identical with §
9(c)(1) of the present Act.
McKinney v. Missouri-Kansas-Texas
R. Co., 357 U. S. 265,
357 U. S.
271.
It was in light of this background that the Court decided
Diehl v. Lehigh Valley R. Co., 348 U.S. 960, which
Page 376 U. S. 176
petitioners contend, and which we agree, controls the present
case.
Diehl involved facts and issues virtually identical
with those now before us. Diehl, like petitioners, was a railroad
carman helper temporarily "upgraded" to carman status. He was
inducted into military service while holding this upgraded position
and, upon his return, was restored to it. The collective bargaining
agreement between the railroad and the union provided that upgraded
carmen who had completed 1,160 days of work in that capacity could
elect journeymen carman status. Upgraded men junior to Diehl had
completed the requisite work period while he was in service, and
had been given seniority ahead of Diehl. Upon completion of the
training period, Diehl protested, claiming, as petitioners do here,
that, under §§ 9(c)(1) and 9(c)(2) of the Act, he was entitled to
seniority as of the earlier date on which he would have completed
the work period but for his absence in military service. The United
States Court of Appeals for the Third Circuit decided against the
veteran on the ground that the Act protects only rights which are a
mere function of time in grade, and does not entitle the veteran to
be treated as if he had been actively employed or trained during
the period of military service. This Court reversed per curiam,
holding that,
"[u]pon the facts disclosed in the opinion of the Court of
Appeals for the Third Circuit, 211 F.2d 95, the applicable Acts of
Congress, and the opinion of this Court in
Oakley v. Louisville
& Nashville R. Co., 338 U. S. 278, the judgment of
the Court of Appeals is reversed."
Diehl v. Lehigh Valley R. Co., 348 U.S. 960.
Although it would be difficult to conceive of a more applicable
and controlling precedent, the court below attempted to distinguish
Diehl on the ground that there it had been stipulated that
the claimant "would have
Page 376 U. S. 177
completed" the work period on a given date if there had been no
military service interruption. [
Footnote 6] 306 F.2d at 877. "These stipulated words," the
court said, "imply that the work completion was not dependent upon
prior resolution of any contingency or uncertainty."
Ibid.
This case, unlike
Diehl, the court declared, "lacks the
essentials of the automatic in the entire system of promotion from
carman helper to full-fledged carman."
Ibid. This
distinction, in our view, is untenable.
There is no room for doubt in this case that, "on the moving
escalator of terms and conditions affecting [this] particular
employment,"
Oakley v. Louisville & Nashville R. Co.,
338 U. S. 278,
338 U. S. 283,
had petitioners remained continuously on the job during the period
of their military service, they would have completed the work
period and qualified as journeymen in advance of those who passed
them in seniority during their absence. Each petitioner was
entitled, under the labor agreement, to do carman's work ahead of
any upgraded after him. It was only because of petitioners'
military service that men upgraded after them were able to work
more days as provisional carmen and to qualify as journeymen before
them. But for their absence, petitioners would have qualified as
journeymen carmen and achieved the seniority dates they now claim.
This was confirmed by the testimony of the railroad's Chief
Personnel Officer, Mr. Smith, who in effect conceded that the
railroad, under the collective bargaining agreement, had no
discretion to refuse journeyman's
Page 376 U. S. 178
status to a helper who had successfully completed the work
period:
"Q. Now, you have testified that these men, when they completed
their three years or thousand and forty days of work, did not
automatically acquire carman seniority. As soon as they made an
election, the railroad had no choice but to give them the
seniority, did it?"
"
* * * *"
"A. [Mr. Smith] That's right."
"Q. In other words, as soon as they completed the work
requirement, made the election as of that time, they became carmen
and drew a seniority date?"
"A. [Mr. Smith] Correct."
It is evident, therefore, that promotion upon completion of the
training period was as automatic here, as in
Diehl.
The Court of Appeals, alternatively, refused to follow
Diehl on the assumption that it was overruled
sub
silentio by the subsequent decision of this Court in
McKinney v. Missouri-Kansas-Texas R. Co., 357 U.
S. 265. The court below interpreted
McKinney to
hold that, for a veteran to be entitled to an advancement in
status, "the promotion in question [must] be automatic, and . . .
seemingly . . . automatic as a matter of foresight, rather than of
hindsight." 306 F.2d at 876. The court concluded that advancement
to journeyman carman status in the instant cases did not meet that
standard, because it was subject to certain contingencies or
"variables": lay-offs due to illness or reduction in force; the
continuing unavailability of enough qualified carmen to fill
carmen's positions; continuing satisfactory work by petitioners in
the upgraded position; and petitioners' decisions as to whether or
not to elect full carman status.
Page 376 U. S. 179
306 F.2d at 877. [
Footnote
7] Accordingly, the Court of Appeals held the eventual
acquisition by petitioners of journeyman carman status could not
have been foreseen with absolute certainty at the time they entered
military service, and that, under
McKinney, they were
therefore not entitled to seniority status as of the date they
would probably have achieved it but for their military service.
In this reading of
McKinney, the Court of Appeals
erred.
McKinney was not intended to, and did not, overrule
Diehl. Nor did
McKinney establish a requirement
of absolute foreseeability. That case did not involve the
Diehl-type situation where advancement depends essentially
upon continuing employment. It turned upon the fact that the
collective bargaining agreement there in issue made the exercise of
management discretion a prerequisite to promotion. The Court
concluded, therefore, that the advancement was not basically
dependent upon continued employment. This is clear from the Court's
statement that:
"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. . . . The statute does not
envisage overriding an employer's discretionary choice by any such
mandatory promotion."
357 U.S. at
357 U. S.
272.
Furthermore, the Court's mandate in
McKinney supports
the view that the Court did not adopt a rule of absolute
foreseeability. In remanding the case, the Court granted McKinney
leave to amend his complaint to allege, if such was the fact, that,
in practice, under the
Page 376 U. S. 180
collective bargaining agreement "advancement from group 2 to
group 1 is automatic." 357 U.S. at
357 U. S. 274.
If the Court had intended to adopt a rule of absolute
foreseeability of automatic advancement, it would not have
permitted McKinney to amend his complaint. It was apparent that
McKinney, when he left for service, could not have predicted with
absolute certainty that a group 1 position would fall vacant in his
absence; that he would be in adequate health to bid for it; that he
would elect to bid for it; and that he would not have lost his
lower position because of unsatisfactory performance. Properly
read, therefore,
McKinney holds 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. [
Footnote 8]
It would be virtually impossible for a veteran to show, as the
Court of Appeals would require, that it was absolutely certain, "as
a matter of foresight" when he entered military service, that all
circumstances essential to obtaining an advancement in status would
later occur. To exact such certainty as a condition for insuring a
veteran's seniority rights would render these statutorily protected
rights without real meaning. As Benjamin Franklin observed, "In
this world, nothing is certain but death and taxes." In every
veteran seniority case, the possibility exists that work of the
particular type might not have been available; that the veteran
would not have worked satisfactorily during the period of his
absence; that he might not have elected to accept the higher
position;
Page 376 U. S. 181
or that sickness might have prevented him from continuing his
employment. In light of the purpose and history of this statute,
however, we cannot assume that Congress intended possibilities of
this sort to defeat the veteran's seniority rights. "This
legislation," the Court said in
Fishgold v. Sullivan Drydock
& Repair Corp., supra, at
328 U. S. 285,
"is to be liberally construed for the benefit of those who left
private life to serve their country. . . ." So construed, we
conclude that Congress intended a reemployed veteran who, upon
returning from military service, satisfactorily completes his
interrupted training, to enjoy the seniority status which he would
have acquired by virtue of continued employment but for his absence
in military service. This requirement is met if, as a matter of
foresight, it was reasonably certain that advancement would have
occurred, and if, as a matter of hindsight, it did in fact
occur.
This does not mean that, under §§ 9(c)(1) and 9(c)(2), the
veteran, upon returning from service, must be considered for
promotion or seniority purposes as if he had continued to work on
the job. A returning veteran cannot claim a promotion that depends
solely upon satisfactory completion of a prerequisite period of
employment training unless he first works that period. But, upon
satisfactorily completing that period, as petitioners did here, he
can insist upon a seniority date reflecting the delay caused by
military service. Any lesser protection, would deny him the benefit
of the salutary provisions of §§ 9(c)(1) and 9(c)(2) of the
Universal Military Training and Service Act. The judgments of the
Court of Appeals are reversed, and the cause remanded for
proceedings consistent with this opinion.
Reversed and remanded.
[
Footnote 1]
Section 9 of the Universal Military Training and Service Act, 62
Stat. 614, as amended 50 U.S.C.App. § 459, provides in relevant
part as follows:
"
* * * *"
"(b) In the case of any such person who, in order to perform
such training and service, has left or leaves a position (other
than a temporary position) in the employ of any employer and who
(1) receives such certificate, and (2) makes application for
reemployment within ninety days after he is relieved from such
training and service or from hospitalization continuing after
discharge for a period of not more than one year -- "
"
* * * *"
"(B) if such position was in the employ of a private employer,
such person shall --"
"(i) if still qualified to perform the duties of such position,
be restored by such employer or his successor in interest to such
position or to a position of like seniority, status, and pay;
or"
"(ii) if not qualified to perform the duties of such position by
reason of disability sustained during such service but qualified to
perform the duties of any other position in the employ of such
employer or his successor in interest, be restored by such employer
or his successor in interest to such other position the duties of
which he is qualified to perform as will provide him like
seniority, status, and pay, or the nearest approximation thereof
consistent with the circumstances in his case, unless the
employer's circumstances have so changed as to make it impossible
or unreasonable to do so;"
"
* * * *"
"(c)(1) Any person who is restored to a position in accordance
with the provisions of paragraph (A) or (B) of subsection (b) (of
this section) 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."
"(2) It is 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) of this
section 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."
[
Footnote 2]
Petitioners were represented by the United States Attorney,
pursuant to the provisions of 50 U.S.C.App. § 459(d). The Railway
Employes' Department, AFL-CIO, has filed in this Court a brief
amicus curiae opposing petitioners' claims.
[
Footnote 3]
The opinion of the District Court is not reported.
[
Footnote 4]
The agreement provides in pertinent part:
"A helper who has been or who is later advanced to carman will
retain seniority as helper. When he has completed a total of 1040
days of service as carman, he shall be considered as a qualified
carman. At the completion of the 1040 days of service, he will make
his choice in writing to acquire a seniority date as carman as of
the ending date of the 1040 days of service as such, and relinquish
his seniority as helper. If he fails to do so, he will return to
status of helper, and will not again be considered in the selection
of men for advancement under this agreement. He may, however, at a
later date be employed as a carman and acquire a seniority date as
carman as of the date so employed, but will automatically lose
seniority as a helper."
[
Footnote 5]
The present § 9(c)(1) is a reenactment of § 9(c)(1) of the
Selective Service Act of 1948, 62 Stat. 604, 614, as amended, 50
U.S.C.App. § 459, which had reenacted § 8(c) of the Selective
Training and Service Act of 1940.
[
Footnote 6]
It is not absolutely clear that there was such a stipulation in
Diehl. The Court of Appeals in
Tilton said:
"The parties in their briefs here both refer to a stipulation in
Diehl. We find no clear reference to a stipulation in the
opinions of either the Third Circuit or the district court.
Inasmuch, however, as the plaintiffs' present counsel argued the
Diehl case in the Supreme Court, we assume the existence
of the stipulation."
306 F.2d at 877, n. 8.
[
Footnote 7]
These contingencies were present in
Diehl but did not
bar relief.
[
Footnote 8]
The only discretion in the present case was that vested in the
railroad and union to select from among the carmen helpers those to
be upgraded. This discretion had been exercised in petitioners'
favor prior to their entry into military service.