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338 U.S. 278
LOUISVILLE & NASHVILLE R. CO.
CINCINNATI, NEW ORLEANS & TEXAS PAC. RY. CO. et al.
Nos. 28 and 29.
Argued Oct. 17, 18, 1949.
Decided Nov. 14, 1949.
Mr. Morton Lipten, Washington, D.C., for petitioner.
Mr. Cornelius J. Petzhold, Cincinnati, Ohio, for Cincinnati, N.O. & T. P. Ry. Co.
Mr. Richard R. Lyman, Toledo, Ohio, for System Federation No. 21 and others.
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 1940,1 one year of reemployment of a veteran by his preservice 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 verteran 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, [338 U.S. 278 , 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), 50 U.S.C.A.Appendix, 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 ( 331 U.S. 40 ) (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. 2 [338 U.S. 278 , 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. 3 The Court of Appeals for the Sixth [338 U.S. 278 , 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 , 167 A.L.R. 110, and Trailmobile Co. v. Whirls, 331 U.S. 40 .
The court below recognized that 8(c)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 [338 U.S. 278 , 283] Court or by the terms of the Act. We reserved the point in the Trailmobile case, supra:
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 , 284-285, 1110-1111, 167 A.L.R. 110; see also, Aeronautical Industrial Dist. Lodge 727 v. Campbell, 337 U.S. 521, 526 , 1289, 1290. In the Trailmobile case, supra, 331 U.S. at pages 56 and 60, 67 S.Ct. at pages 990, 992, 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 pro- [338 U.S. 278 , 284] tected 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 asser- [338 U.S. 278 , 285] tion 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.
2. The respondent previously had answered, filed a request for admissions under Rule 36, Federal Rules of Civil Procedure, 28 U.S.C.A., 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 are before us, and we have considered the case on the petitioner's allegations in his complaint.
3. In No. 28, the court said:
In No. 29, the entry was the same except for the name of the defendant railway.
4. 'Sec. 8. * * *