he received this reply from the president of the company dated January 3, 1946:
'I am at a loss to understand any basis on which you may assert any claim to resume employment. I will be pleased to hear from you as to any reasons or basis on which you may assume to place such a request.'
In 1944 ownership of defendant's company changed, its common stock came under the control of The Associated Gas & Electric Company, now General Public Utilities Company, and the immediate holding company became NY PA NJ Utilities Company. At this time the defendant again changed carriers, and the new carrier is the one generally used in the new system of ownership. Defendant no longer operates the department formerly supervised by plaintiff. Its investigator went into the employ of its former carrier, and the present carrier employs counsel and medical examiners of its own choosing. When accidents occur defendant makes a report to the carrier, and it handles the matter from that point.
The company, however, continues to require pre-employment examinations which are made by physicians in various localities depending upon the residence of the applicant. Review of these records which was formerly made by plaintiff is now done by defendant's safety department and if any question arises it is referred to the examining physician. Review of non-compensable cases formerly made by plaintiff is now handled by defendant's Welfare Department.
Defendant's vice-president testified that under the present arrangement there is no place or need for medical activities previously performed by plaintiff.
The pertinent section of the Selective Training and Service Act provides as follows:
'(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so;' 50 U.S.C.A.Appendix, § 308(b)(3)(B).
Defendant has filed an answer which raises two points of defense:
1. Plaintiff was not an employee of defendant nor did he hold a position in the employ of defendant within the meaning of the statute at the time he entered the service of the United States Army.
2. Defendant's circumstances have so changed as to make it impossible or unreasonable to re-engage the services of plaintiff.
Both points presented by defendant were before the court in the case of Kay v. General Cable Corporation, 3 Cir., 144 F.2d 653, and the rule excluding independent contractors from the operation of the Act has been consistently applied. Frank v. Tru-Vue, Inc., D.C., 65 F.Supp. 220; MacMillan v. Montecito Country Club, D.C., 65 F.Supp. 240.
If the disposition of this case depended upon whether or not plaintiff is an employee or independent contractor, a comparison of facts with those in the case of Kay v. General Cable Corporation, supra, would show similarities and dissimilarities, and our conclusion would rest upon a discrimination of one or the other, whichever we thought to be material. It is unnecessary to explore the niceties revolving around the status of plaintiff as an employee or independent contractor, because we are of the opinion that defendant's second objection to the claim controls.
In the case of Kay v. General Cable Corporation, supra, the plaintiff applied under the Act for reinstatement as defendant's Medical Director following his return from the Service and the defendant contended its circumstances had changed during the plaintiff's absence. In addition to his position with defendant plaintiff also had been engaged as physician for an employee's Health Association and upon his return the Association declined to re-employ him preferring his successor. Defendant took the position that it makes for greater efficiency and avoids some loss of the workers' time to have the same physician for both the company and the Health Association. The court stated (144 F.2d 655):
'The Act says, unless the 'employer's' circumstances have changed Primarily, no doubt, this was intended to provide for cases where necessary reduction of the employer's operating force or discontinuance of some particular department or activity would mean simply creating a useless job in order to reemploy the plaintiff.
'Accepting the defendant's contention that there would be some loss of efficiency and possibly some additional expense involved, more than that is needed to justify refusal to reinstate a person within the protection of the Act. In most cases it is possible to give some reason for the refusal 'Unreasonable' means more than inconvenient or undesirable. The defendant's argument upon this point, if carried to its necessary conclusion, would defeat the main purpose of the Act and limit its operation to merely capricious or arbitrary refusals.'
The duties formerly performed by plaintiff which still survive the present arrangement are now performed by defendant's welfare and safety departments in the review of pre-employment records and the file on non-compensable cases It is assumed that these departments are manned by laymen for it was not shown that physicians are employed in them.
There was also the pre-employment examination plaintiff made on applications arising in the vicinity of Asbury Park for which he received fees paid by defendant in addition to his salary. We believe this work for which he received fees should be regarded as extrinsic to the position sought, and, in fact, plaintiff does not seek reinstatement in this respect, but as medical director.
Plaintiff argues that all the work that was formerly done is still performed, but through a change in company policy it is not done by defendant as before, but by the carrier and plaintiff contends defendant in effect has replaced his services by another. In 1944 there was virtually a new ownership of this defendant. Its contract of insurance having expired a new insurer common to the new ownership's chain of companies designed for the defendant a new pattern for insurance against its losses. This made away with not only plaintiff's position but of the investigator and counsel as well. We are convinced that this was carried out in good faith. Thus the defendant's circumstances were so changed as to make it unreasonable to compel the defendant to reemploy the plaintiff in a position the principal duties of which had completely disappeared.
The petition of the plaintiff should be dismissed.
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