Earnest C. Poore v. Louisville and Nashville Railroad Company, 235 F.2d 687 (5th Cir. 1956)

Starting with the asserted premise that Oakley v. Louisville & N. Railroad Co., 338 U.S. 278, 70 S. Ct. 119, 94 L. Ed. 87, and Diehl v. Lehigh Valley R. Co., 348 U.S. 960, 75 S. Ct. 521, 99 L. Ed. 749, reversing, 3 Cir., 211 F.2d 95, requires that time spent in military service shall continue to count, "* * * as though he had remained continuously in his civilian employment * * *", Oakley, supra, 338 U.S. at page 284, 70 S. Ct. at page 122, toward seniority during the entire time of subsequent reemployment, Poore sought, but was denied, both money judgment and declaration that, by adding civilian and military time,¹  he had exceeded 1040 days as an Electrician Helper and was therefore entitled under the System Federation collective bargaining contracts and supplemental memoranda to be "promoted" or "advanced" to the status (and seniority) of Electrician.

For some time he had been performing work as an Electrician with Electrician's pay. This he did as an "upgraded" Electrician Helper with no seniority as Electrician, but retaining always his seniority as Electrician Helper. Since the Railroad (and System Federation) considered him to have the status and seniority as Electrician Helper only, he was on July 16, 1954 laid off from his job as Electrician (upgrade) as a result of necessary reduction of forces on that date. Poore, however, reduces his complaint, in effect, to the specific charge that retention of R. H. Newton,²  then rated as an Electrician but actually junior to him on the roster of Electrician Helper at the time of his entry on military service, was in violation of the Act, 50 U.S.C.A.Appendix, § 459. Poore pitches the battle entirely on the comparative right of himself and Newton, for neither here nor below did he make the charge that he was entitled to claim the job over other Electricians³  junior to Newton.

Since the returning veteran, "* * * assumes, upon his reemployment, the seniority he would have had if he had remained in his civilian employment. His seniority status secured by this statutory wording continues beyond the first year of his reemployment, subject to the advantages and limitations applicable to the other employees", Oakley v. Louisville & N. Railroad Co., 338 U.S. 278, at page 284, 70 S. Ct. 119, at page 122, decision here turns on the terms of the agreement between the Railroad and its employees regulating seniority, advancement and similar rights. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S. Ct. 1105, 90 L. Ed. 1230; Trailmobile Co. v. Whirls, 331 U.S. 40, 67 S. Ct. 982, 91 L. Ed. 1328; Aeronautical Industrial Dist. Lodge 727 v. Campbell, 337 U.S. 521, 69 S. Ct. 1287, 93 L. Ed. 1513. And this inquiry is further reduced to a simple issue: is an Electrician Helper entitled automatically as of right to the status of Electrician on the mere elapse of the specified (1040 days) time? We think the answer is "No", and on that Poore fails in his claim.

We subscribe fully to the District Court's findings and conclusions that neither the written agreements nor the implied agreements from the usual custom and practice of the parties gave any such automatic promotion. The basic contract actually spoke only in terms of the qualification⁴  of those who might be selected without specifying the procedure of selection. There were four distinct classifications⁵  of electrical workers in the descending hierarchy of Electrician, Apprentice, Helper Apprentice, and Electrician Helper. The four years' practical experience (Rule 131) was presumably intended to parallel generally the training program experience of Apprentices.⁶ 

Nor did the 1946 and 1947 Memorandum of Undertaking provide any such guaranty. These were intended to cover the employment on a temporary basis of Apprentices, Helper Apprentices and Electrician Helpers as persons not having craft (mechanics) status during the periods of labor shortages in the existing national emergencies. With meticulous care these agreements made plain that job openings were available in strict accord with the hierarchy and that as "mechanics" (craft status) became available or reductions in force took place, the "upgraded" employees would be laid off in inverse order, and, to preserve this industrial stratification, the original status of upgraded employees was continued with seniority accumulating in that status only.⁷ 

A consideration of both reveals the sharp distinction between Apprentices (including Helper Apprentices) and Electrician Helpers. Not only are Apprentices given a higher rank⁸  in the general order, but provision is here alone made for Apprentices to advance into the "mechanic" (craft) status on the fulfillment of the time-training program of their apprenticeship and for which "upgraded" service is to count.⁹ 

So clearly provided for Apprentices and Apprentice Helpers working as upgraded mechanics, absence of similar language for upgraded Electrician Helpers, and the simultaneous presence of the plain words, "the men advanced will not lose their seniority as apprentices or helpers nor will they accumulate seniority as mechanics. * * *", demonstrates that under the collective bargaining agreements there was no automatic advance in status for upgraded Electrician Helpers.

This narrows it, then, even further. But Poore has no better success in attempting to establish that an Electrician Helper, upon completing the four years' practical experience, would advance to Electrician. All that was established, and as the Court found, was that the Electrician Helper with the highest seniority was usually given preference in bidding on vacancies on the Electricians' Roster. But it was equally uncontradicted (and so found) that the Railroad does have the right (and frequently exercised¹⁰  it) to select new Electricians as vacancies occurred from any suitable source and that in the actual day-to-day, practical operations and the customs and usages followed, there was no automatic right of succession, promotion or advancement.

This practice was entirely free of any suggestion of discrimination against returning veterans and was, on the other hand, consistent with the approach reflected in so many ways in the basic contract, the Memorandum Agreements and in the operating practices to judge and determine competency on the basis of actual service performed. The position of Electrician was an important one requiring careful training and experience. The Railroad's training program itself reflected the importance of time, not in mere passage, but as the means of acquiring beneficial on-the-job experience and proficiency. The Act was not intended to give the veteran preference. It was intended to assure equality. Where, in technical and skilled employment, actual experience is an expressed requirement to advancement, the Act does not mean to give that effect to the mere passage of time. Altgens v. The Associated Press, 5 Cir., 188 F.2d 727; Harvey v. Braniff International Airways, 5 Cir., 164 F.2d 521; Addison v. Tennessee Coal, Iron & Railroad Co., 5 Cir., 204 F.2d 340; Special Service Co. v. Delaney, 5 Cir., 172 F.2d 16. And, whether military time is or is not to count as time served, where the entire employment arrangement shows, as here, that advancement to another, higher and different classification is on a selective basis by the employer with no automatic right of promotion regardless of time served, the Act does not guarantee such advancement to the veteran. Raulins v. Memphis Union Station Co., 6 Cir., 168 F.2d 466; Little v. Pennsylvania R. Co., D.C.Md., 95 F. Supp. 631; Boston & M. R. R. v. David, 1 Cir., 167 F.2d 722; Hewitt v. System Federation No. 152, 7 Cir., 161 F.2d 545; Lesher v. P. R. Mallory & Co., 7 Cir., 166 F.2d 983; Special Service Co. v. Delaney, supra; Addison v. Tennessee Coal, Iron & Railroad Co., supra.

On either analysis Poore failed to make his case. Poore's status when he left January 7, 1951, was an Electrician Helper with seniority as of June 28, 1948. At the time he left he was entitled to no more. When he returned February 25, 1952, even counting his military service, his time totalled only 635 days and he could make no other demand. When he was laid off in July 1954, he had had only 968 of the 1040 required days of actual experience to qualify. If, as seems quite likely, job proficiency required actual service on the job for the minimum period, he had failed to meet this. But even assuming that all military time was to count against the 1040 days as time worked, he yet remained an Electrician Helper with four years' experience. At most this made him eligible for selection as an Electrician, but until he was selected and approved as such by the Railroad, he remained an Electrician Helper. His right to compete for selection as an Electrician would have been exactly the same as though he had never left for military duty. In that situation his standing was identical with that of a non-veteran Electrician Helper of the same seniority. Neither could, by four years' experience or the passage of time or work in an upgraded capacity, compel the Railroad to class him as an Electrician. Who was to be selected, where he was to come from was for the Railroad to determine.

In this competition, Poore stood shoulder to shoulder with all Electrician Helpers of the same seniority. Giving the fullest voice to Oakley and Diehl, supra, that is all the Act means to give him. He can claim no more.

Affirmed.