The opinion of the court was delivered by: MEANEY
Plaintiff instituted this action under the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix § 308, to compel defendant to reinstate him in his position as a medical director in defendant's plant. The action was first brought in December of 1943 and after a hearing thereon the petition was dismissed on the ground that petitioner was not an employee within the meaning of the statute. The Circuit Court reversed the findings of the District Court and held the plaintiff eligible for protection under the Act. Kay v. General Cable Corporation, 3 Cir., 144 F.2d 653.
Thereafter, in accordance with the mandate of the Circuit Court, an ex parte order was entered. On application of the defendant, this Court, after a hearing, vacated the order and in an opinion rendered on March 5, 1945, ( Kay v. General Cable Corporation, 59 F.Supp. 358), directed the entry of a new order by which the plaintiff was held to be entitled to reinstatement in the position he had previously held with the defendant corporation. In addition, plaintiff was found to be entitled to receive compensation in the amount of $ 55 weekly for the period between the institution of the District Court action until that court rendered an opinion adverse to the plaintiff and favorable to the employer. For the period during which the decision favorable to the employer remained outstanding and unreversed, no compensation was to be paid. From the date of the Circuit Court opinion until the defendant shall have restored the plaintiff to his previously held position, the plaintiff was held entitled to compensation in the amount of $ 55 per week.
Notices were thereafter served by both parties that proposed orders would be submitted in accordance with the court's direction. The plaintiff's proposed order provided, however, for payment of a weekly salary of approximately $ 85, said salary being equal to that paid to the present medical director. Plaintiff also asked the court to reconsider its ruling disallowing compensation to plaintiff for the two periods above mentioned.
On March 20, 1945, the defendant company made an offer to restore plaintiff to his former position. The offer, according to the defendant, was to reinstate plaintiff with the same authority, title, functions and salary as he formerly possessed. The plaintiff does not deny that an offer was made. He does deny, however, that the offer was bona fide and insists that defendant offered him a position which would be subordinate to the present medical director. Plaintiff, for that reason, refused to accept the proffered position since the offer allegedly did not comply with the court's direction.
These matters will be taken up in the order indicated.
The Selective Training and Service Act, 50 U.S.C.A.Appendix § 308, under section 308(g) provides that the Director of Selective Service shall establish a Personnel Division with adequate facilities to render aid in the replacement of veterans in their former positions. The right of a veteran to enlist the services of the United States Attorney and to proceed in the United States District Court against a private employer is set forth in Section 8(e).
Where a veteran seeks such assistance in obtaining reinstatement, it is intended and desired that every possible effort to effect a settlement of the veteran's claim should be exhausted before resort to court action is had. Where need for legal proceedings is finally indicated, the local board is directed to send the case to the State Director of Selective Service where such further steps and investigation as may be advisable shall be taken before the case is ultimately taken to the United States Attorney. It is at no time intended that a Local Board or any person attached thereto, shall send a case directly to the United States Attorney for prosecution.
It is important to note, however, that the Selective Training and Service Act does not make it mandatory that the veteran proceed under the settlement machinery provided. If the veteran so chooses he may proceed by motion, petition or other appropriate pleading specifically to require an employer to comply with the provisions of the Act. If he chooses such course of procedure, however, he must with promptitude, upon the employer's refusal to reinstate him, have recourse to the District Court. To do otherwise would permit of extended and idle negotiation. Where the refusal by the employer is final, the Act does not contemplate that a veteran shall conduct fruitless, long continued efforts at reinstatement and on a failure thereof, compel such employer to compensate him for this extended period of time as may be allowed for appropriate consultation.
The situation is considerably different where it is demonstrated that the veteran has in good faith employed the assistance of the governmental agencies and has, nevertheless, been unable to secure reinstatement until an order to that effect is made by the District Court. In such a situation there is little likelihood of abuse or unfair practice, and compensation should be made for loss or damage suffered.
In the present case, attempted negotiations were at best of a haphazard nature. While there have been some assertions made by the plaintiff that efforts to enlist the aid of the Local Board and the State Director were made, this Court is not satisfied that the plaintiff pursued such a course to any appreciable extent. The negotiations which were carried on, extending over a period of six months, were primarily between the plaintiff and the defendant corporation and were undertaken by the plaintiff. These were attended by repeated and final refusals by the defendant to reemploy the plaintiff. Under these circumstances, as this Court stated in its earlier opinion, it would be beyond the scope of the Act to compel the employer to compensate for such extended period.
There has been nothing presented before me to alter my opinion that the plaintiff is not entitled to compensation for the period during which the decision favorable to the employer and adverse to the plaintiff remained outstanding and unreversed. No change will be made, therefore, as to the periods for which plaintiff is to receive compensation.
Plaintiff urges next, that an order be entered entitling him to be reinstated at a rate of pay equal to that received by the defendant's present medical director. At the time the plaintiff left the employ of the defendant to enter the Armed Services, he was receiving a salary of $ 55. weekly. It was on this basis that this Court ordered his reinstatement. Plaintiff insists, notwithstanding, that under the provisions of the Selective ...