Before MARIS and KALODNER, Circuit Judges, and FOLLMER, District Judge.
These are cross appeals from an order of the United States District Court for the District of New Jersey which adjudicated the rights of the petitioners under Section 8(e) of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 308(e). They present the same general question as that involved in the case of Gauweiler v. Elastic Stop Nut Corporation of America, 3 Cir., 162 F.2d 448. This court decides in that case that an employee absent in war service is bound by collective bargaining agreement made between the bargaining agent of the employees and the employer, provided the agreement is nondiscriminatory as to veterans. The court holds in the Gauweiler case that a returning veteran employee has no right to displace a nonveteran union official of less service seniority who has top seniority by reason of the agreement.
Each of the original petitioners in the present case, James W. Payne, Anthony Frank, Michael J. Grinnan and Rocco Roy Pompeo, sought reinstatement by the respondent, Wright Aeronautical Corporation, to the position he had held with the Corporation prior to his induction into service or to a position of like seniority, status and pay. The respondent raised several defenses, among them that the reinstatement of these petitioners would be in violation of the collective bargaining agreements in effect in the plants involved and contrary to the Act, that the petitioners were temporary employees and as such not entitled to the protection of the Act, and that the respondent's circumstances have so changed as to make it impossible and unreasonable for it to restore the petitioners to their respective positions or to positions of like seniority, status and pay.
The respondent impleaded the union involved, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C.I.O., and its Local 669, and by counterclaim sought a declaratory judgment against the petitioners and the union asking for an adjudication of the rights and liabilities of all parties under the Act and the collective bargaining agreements.The four cases were consolidated for trial. At the trial two additional veteran employees, Emil F. Tlusty and Mark J. Fitzpatrick, were impleaded by order of the district court on the theory that their rights were involved in the original proceedings.
The collective bargaining agreements referred to in the first defense were entered into by the respondent and the union during the period when the petitioners were in military service and they made certain changes in the prevailing rules governing seniority to be observed in laying off and rehiring employees in periods of slack work. The change made by the agreement of October 1, 1943 was to add union stewards to the list of union officials given top seniority during their term of office without regard to the actual time they were employed by the respondent. The agreement of December 4, 1945 specified that the top seniority thus given applied during lay-off periods only. The latter agreement also provided that an employee's seniority rights were limited to the last occupation in which he was classified upon the company's records and to those previous occupations in which he had at least six months of actual service as determined from the company's occupational records. While the prior agreements had stipulated for plant-wide seniority the actual practice in the plant had been to recognize such seniority only with respect to occupations in which the employee did have prior experience. Whether the practice in the plant prior to the 1945 agreement was to recognize such experience if of less than six months duration is not made clear by the evidence.
The district court dismissed the defenses that the petitioners were temporary employees and that it would be a hardship to reemploy them. It also dismissed the counterclaim. The court ruled, however, that the agreement giving union stewards at times of lay-off top seniority effective during their terms of office was inapplicable to the petitioners by reason of the rights which the Act accorded them as veterans. It concluded, therefore, that as veterans the petitioners were entitled to displace union stewards who were junior to them in point of service despite the respondent's agreement with the union giving stewards top seniority and that this right extended to all occupations in which the veterans were qualified. There was no intimation by the court that a petitioner's qualification was to be tested by his classification on the company's occupational records.
The court also ruled, however, that it would order the reinstatement of a veteran in preference to a union steward only if the veteran had greater seniority than others, whether veterans or nonveterans, who were waiting for reinstatement in the same occupation. Because of this ruling the court did not actually order any of the four original petitioners to be reinstated. It awarded money damages to Payne and Frank with respect to a past period during which it found that they should have been assigned to work. All of the award to Payne and part of the award to Frank was based upon the court's finding that these petitioners should have displaced union stewards during the prior period. $413.14 of the award to Frank, however, is conceded by the respondent to be correct and is not involved in these appeals.
In the course of its investigation of the facts the court discovered that the intervening petitioners, Tlusty and Fitzpatrick, who were veterans, had seniority over Payne in their occupation. It developed that the interveners were second and third on the recall list and that three union officials junior to them in service seniority were working. But one Sanders, the man who was highest in seniority on the recall list, was a nonveteran. Faced with this dilemma the district court ordered that Tlusty should replace the first union official, that Fitzpatrick, should replace the second, that Sanders, the nonveteran with greater seniority than Fitzpatrick, should then replace Fitzpatrick, and that the latter should then replace the third union official.
It will be seen that the court, in endeavoring to carry out what it regarded as the rule laid down by the Act, not only replaced two union officials with veterans in violation of the rules of seniority prescribed by the collective bargaining agreement but also actually replaced a third union official with a non-veteran who unquestionably was bound by the agreement and who clearly was not entitled to the preference which the court accorded him. This case thus presents a striking illustration of the utter impracticability of enforcing in the same plant two conflicting systems of seniority, as this court points out in the Gauweiler opinion. And yet that is the impossible task which employers must endeavor to carry out if the rule contended for by the petitioners were to be followed.
For the reasons stated in the opinion of this court in the Gauweiler case we hold that the district court erred in concluding that the provisions of the collective bargaining agreement giving union stewards top seniority were not binding on the petitioners.
We come then to the question whether the provisions of the 1945 agreement restricting seniority to those occupations in which the employee has had six months experience are binding on the petitioners. We have seen that the practice in the plant prior to their induction into the service was to restrict seniority to those occupations in which the employee had actually had experience but that it is not clear whether that experience was required to be of any specific length. The 1945 agreement specified a minimum of six months experience as the criterion. The question, therefore, is whether this provision unlawfully discriminates against a veteran employee who prior to his induction had some, but less than six months, experience in an occupation in which he claims seniority.
Two possible cases must be considered. The first is where the veteran employee had served for less than six months in the occupation in which he was serving at the time of induction into the armed forces and has served the remainder of the six months in those forces. In this situation it may fairly be presumed that but for his induction he would have continued his service in the occupation in question and would have acquired six months experience therein. We think it must be concluded that the subsequent requirement of six months service did under these circumstances directly discriminate against the veteran by reason of his absence in the armed forces and is, therefore, invalid and unenforceable as to him.
The other case which must be considered is that of a veteran who at the time of his induction had served six months or more in the occupation in which he was then serving but previously had served in another occupation in the plant for a period of less than six months and now claims seniority in that prior occupation. The termination of that prior service short of six months may have been for any one or more of a variety of reasons but it obviously could not have been because of the employee's subsequent induction into the armed forces. Accordingly it cannot be said that in this situation the subsequent contract provision which stipulated for six months service as a prerequisite to seniority in the occupation operated to discriminate against the veteran employee by reason of his service in the armed forces. On the contrary he is treated in this case exactly as are all the other employees in the plant and as he would ...