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COON v. LIEBMANN BREWERIES

July 22, 1949

COON
v.
LIEBMANN BREWERIES, Inc.



The opinion of the court was delivered by: SMITH

This is an action under Section 1473 of Title 50 U.S.C.A.Appendix (Civilian Reemployment of Members of Merchant Marine.) The petitioner seeks to recover compensation for the loss of wages suffered by reason of his wrongful discharge by the respondent within one year after restoration to his former position.

Facts

 I. The respondent is a corporation engaged in the sale and distribution of beer, and maintains a place of business in Newark, New Jersey.

 II. The petitioner was first employed by the respondent as a truck driver in May of 1942 and thereafter was continued in the employ of the respondent until September of 1942, when he left his position to enter the Merchant Marine. The petitioner entered the Merchant Marine on September 7, 1942, and his service therein was formally terminated on November 19, 1945, as appears from the certificate issued by the War Shipping Administration.

 III. The petitioner made application to the respondent for reemployment on August 25, 1945, after his service in the Merchant Marine had actually ended but before the certificate of continuous service issued. The respondent, without just cause, then disputed the petitioner's right to reemployment. Thereafter, on November 25, 1945, the respondent recognized the petitioner's reemployment rights and employed him as a loader; he was restored to his former position as a truck driver on November 26, 1945.

 IV. The petitioner was continued in the employ of the respondent from November 25, 1945 until March 29, 1946, when he suffered an inguinal hernia while loading his truck. *fn1" The petitioner was unable to resume work until June 15, 1946, when he again made application to the respondent for reemployment. The respondent then discharged the petitioner without just cause and without informing him of the reason for his discharge at that time.

 V. The respondent was, and had been since 1942 or prior thereto, under a 'closed shop' agreement with Local Union No. 153 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers. This agreement, which was apparently renewed periodically during the petitioner's absence, contained the following pertinent provision:

 'Paragraph 2. The Company shall employ only such persons as are in possession of a working card issued by the Union, subject only to the limitation that if the Union shall fail to furnish to the Company persons for employment satisfactory to the Employer within twenty-four (24) hours, the Company may employ whomsoever it chooses, provided that such persons receive a working card from the Union prior to starting work.'

 VII. The petitioner was unemployed for twenty-three weeks during which time he suffered a loss of wages in the amount of $ 56.00 per week, a total of $ 1,288.00. There is testimony before the Court that he was employed periodically at odd jobs for which he received some compensation.

 VIII. This action was commenced on September 11, 1947, approximately fourteen months after the petitioner was discharged by the respondent. The delay in the commencement of the action was not attributable to the inexcusable neglect of the petitioner. It appears from the undisputed testimony that the petitioner sought the assistance of the Veterans Administration and the United States Attorney within a reasonable time after he was discharged by the respondent.

 Discussion

 It is the contention of the respondent that the petitioner is not entitled to recover compensation for the loss of wages suffered prior to the institution of this action on September 11, 1947. There are cases which support this contention. Dacey v. Bethlehem Steel Co., D.C., 66 F.Supp. 161, 163; Thompson v. Chesapeake & Ohio Ry. Co., D.C., 76 F.Supp. 304, 308; Anglin v. Chesapeake & Ohio Ry. Co., D.C., 77 F.Supp. 359, 363. These decisions create limitations which are neither prescribed by the Act nor contemplated by its express provisions.

 This Act, like the Selective Training and Service Act, 50 U.S.C.A.Appendix, ยง 301 et seq., is remedial legislation which must be 'liberally construed for the benefit of those who left private life to serve their country in its hour of great need.' See Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S. Ct. 1105, 1111, 90 L. Ed. 1230, 167 A.L.R. 110. It is our opinion that this rule of construction necessarily prohibits the courts' reading into the Act conditions or limitations which are not therein expressed. We are willing to concede that a veteran may be guilty of culpable delay tantamount to an ...


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