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GOTTSCHALK v. RAILWAY EXPRESS AGENCY

January 30, 1947

GOTTSCHALK
v.
RAILWAY EXPRESS AGENCY, Inc.



The opinion of the court was delivered by: KENNEDY

The Court having heard the evidence and considered the admissions and stipulations of the parties, finds the facts and states the conclusions of law as follows:

Findings of Fact.

 1. On August 13, 1941, the petitioner was employed by the respondent as a general foreman at its West Side Terminal, 33d Street and 10th Avenue, New York City. This position was a supervisory position and known as an excepted position as distinguished from the classified employees.

 2. On August 13, 1941, the petitioner held the rank of Captain of the Infantry in the Officers Reserve Corps of the United States Army and on that day ordered into active duty in the United States Army and on that day he received a leave of absence from the respondent to carry out his military duties.

 3. On November 26, 1945, petitioner received a certificate of service as Major of Infantry and reverted to his status in the Officers Reserve Corps of the United States Army. It is admitted that the petitioner honorably completed his military duties in the United States Army.

 4. On December 1, 1945, he applied to the respondent for re-employment and on December 5, 1945, he returned to work for the respondent in the position of general foreman at the West Side Terminal at 33d Street and 10th Avenue, New York City, the exact position he had occupied when he had entered the military service. He continued in this position until January 1, 1946, when he was promoted to the position of assistant agent in charge of the respondent's midnight shift at Lackawanna Terminal, Hoboken, New Jersey. On April 23, 1946, he was again promoted to the position of an assistant agent at the Communipaw Terminal of the respondent at Jersey City, New Jersey. Each of these promotions resulted in an increase in pay to the petitioner. He continued as assistant agent at the Communipaw Terminal of the respondent until May 20, 1946, when he was discharged by the respondent on the ground that he was an undesirable employee.

 5. The petitioner's employment with the respondent for a great many years was during the nighttime and during the daytime he had studied law and had become a member of the Bar of the State of New Jersey in 1932. In 1932 until his entry into the United States Armed Forces in August, 1941, the petitioner carried on the practice of law during the daytime to a limited extent, but there is no evidence that up to 1941 the petitioner engaged in the practice of law in any manner which was inimical or harmful to the interests of the respondent.

 6. On or about January 5, 1946, while the petitioner was at work as assistant agent at the Hoboken Terminal of the respondent, he was approached by a Mr. George Fitzpatrick, President of the Patrolmen's Benevolent Association of the Hoboken Police Department, and asked by him to represent approximately sixteen police officers of the City of Hoboken who were involved in a controversy regarding their duties and other conditions arising out of their employment as police officers of the City of Hoboken. The petitioner after considering the matter agreed to represent these police officers. At or about that time petitioner was cautioned by Mr. Laughlin, an agent of the respondent, that if he became involved in the political situation in Hoboken not to involve the respondent. It also appeared that petitioner some time prior to his entry into military service in 1941 had been active in politics in the City of Hoboken and had been a candidate for City Commissioner and was defeated. It also appeared that as a result of petitioner's investigation of police officers' difficulties with the municipal officials of the City of Hoboken he was highly incensed and outraged at what he considered the unfair treatment the police officers were receiving. This is further evidenced by his admission that he referred to the tactics of the municipal officials of the City of Hoboken as 'Hitleristic' and in his letters to the respondent subsequent to his discharge wherein he referred to the corrupt political machine in Hoboken and the leaders thereof as 'bosses'.

 7. In January, 1946, the petitioner represented a police officer named Quinn in a departmental police trial and subsequently successfully appealed his dismissal to two appellate courts. Early in May, 1946, the petitioner also represented in departmental trials before the Department of Public Safety Police Officer Wladich and Police Officer Carmody. The petitioner proceeded with appeals on those cases but they had not been argued at the time of his discharge.

 8. Prior to April 11, 1946, one of th- police officers being represented by the petitioner was Edward J. Sheehy, who was under suspension from the Police Department of the City of Hoboken for alleged willful disobedience of orders. On April 11, 1946, the petitioner accompanied Edward J. Sheehy to the Jersey City Terminal of the respondent where the petitioner sought out Joseph J. Schnell, the agent in charge of that terminal for respondent for the purpose of obtaining a temporary position for Police Officer Sheehy.

 I find that Sheehy, at the solicitation of the petitioner, was employed by the agent Schnell as a temporary employee to perform the ordinary duties of an expressman in loading and unloading shipments of merchandise from and to railroad cars and trailers, and other work incidental thereto, and that the said Sheehy was generally familiar with that work having been employed by the respondent eight or nine years prior thereto.

 I find that the said Sheehy submitted to a physical examination by a physician employed by the respondent on April 11, 1946, and stated to said physician that he had not had any sicknesses during the past five years and that the said physician found that the said Sheehy was physically qualified to fill the position of platform man with the respondent.

 The said Sheehy began work on the night of April 11, 1946, and worked four nights for the said respondent and performed the regular work and in the same manner as performed by other employees engaged in the same line of work with him. At the end of the four days' work the said Sheehy's employment was discontinued because of lack of work due to a strike of elevator operators in New York City.

 On May 13, 1946, Sheehy's trial for alleged willful disobedience of orders came on for hearing before the Deputy Director of the Department of Public Safety of the City of Hoboken and the said Sheehy was defended by the petitioner as his attorney. The said Sheehy set up as his defense in that trial that he did not willfully disobey any orders of his superiors and that he was physically unable to carry on the extra duty assigned to him in the Police Department because of illness. At his trial, when confronted with his employment beginning April 11, 1946, and continuing for four days at the respondent's place of business in Jersey City, he testified that he worked there only two and one-half days and that he was compelled to cease working because of his physical condition. He also testified that the position with the respondent had been obtained for him by the petitioner herein and that arrangements had been made for him to do light work, and that during the course of his employment he was permitted to pick out the small packages to carry, weighing approximately two to three pounds. ...


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