Beard v. Norfolk & Western Railway Co.

484 F. Supp. 758
CourtDistrict Court, W.D. Virginia
DecidedJanuary 16, 1980
DocketCiv. Nos. 74-247 to 74-249
StatusPublished
Cited by2 cases

This text of 484 F. Supp. 758 (Beard v. Norfolk & Western Railway Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beard v. Norfolk & Western Railway Co., 484 F. Supp. 758 (W.D. Va. 1980).

Opinion

OPINION

TURK, Chief Judge.

As part of this nation’s selective service legislation, Congress since 1940 has protect[759]*759ed the reemployment rights of veterans.1 These consolidated cases present a narrow, though difficult and important, question under the Veterans’ Reemployment Rights Act, as amended by the Vietnam Era Veterans Readjustment and Assistance Act of 1974, 38 U.S.C. § 2021 (1976) (hereinafter “the Act”): Should the time plaintiffs spent in military service be counted toward the 1040 days’ work experience ordinarily required as a prerequisite to the attainment of certain seniority rights under the relevant collective bargaining agreement? The cases are before the court on cross motions for summary judgment.

The facts are not in dispute. Each plaintiff is presently employed by defendant Norfolk and Western Railway Company in Roanoke, Virginia. The job duties of each involve mainly the repair and maintenance of freight cars. Under the collective bargaining agreement between defendant and the union that represents the plaintiffs, an employee of the defendant railway attains full journeyman carman status, upon his successful completion of 1040 days of work as an apprentice car repairer. As a concomitant of their higher seniority status, journeyman carmen have greater protection against layoffs than apprentice car repairers have.

Each of the plaintiffs was initially hired by the defendant railway company as an apprentice car repairer. Each plaintiff subsequently was inducted into the armed forces for approximately three years’ active military service. Upon their honorable discharges, the plaintiffs all promptly returned to employment with the railway. The crux of their complaints is that instead of including the number of days of each plaintiff’s military absence in calculating the fulfillment of the 1040-day work requirement, the railway — in violation of the Act — credited plaintiffs only for those days on which they had actually worked before and after their service in the armed forces. As a result, when in October 1971 it became necessary for the defendant railway to lay off some employees due to lack of work, plaintiffs had not yet been granted journeyman status and, accordingly, were not yet beneficiaries of the greater job protection which journeyman carmen enjoy. Each of the plaintiffs was laid off. It is stipulated that if the periods of military service had been counted toward the attainment of journeyman carman status, each plaintiff would have been laid off for a shorter period of time. Thus, plaintiffs seek an award of the wages they would have earned had their lay-off periods been shorter. The parties have stipulated the amounts of those wages.

The controlling portion of the Veterans’ Reemployment Rights Act provides that a returning veteran should be restored to his employment

in such manner as to give such person such status in the person’s employment as the person would have enjoyed if such person had continued in such employment continuously from the time of such person’s entering the Armed Forces until the time of such person’s restoration to such employment .

38 U.S.C. § 2021(b)(2) (1976).

The purpose of this legislation is plain: “He who [is] called to the colors [is] not to be penalized on his return by reason of his absence from his civilian job.” Fishgold v. Sullivan Corp., 328 U.S. 256, 284, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230 (1946). The veterans’ reemployment statutes often have been said to embody an “escalator, principle.” E. g., Tilton v. Missouri Pac. R.R. Co., 376 U.S. 169, 175, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964); Earls v. Atchison, Top. & S. F. Ry. Co., 532 F.2d 133, 135 (9th Cir. 1976); Adams v. General Motors Corp., 525 F.2d 161,166 (6th Cir. 1975). These statutes codify the principle that the reemployed veteran “does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously” during his period of military service. Fishgold, 328 U.S. at 284-85, 66 S.Ct. at 1110-1111.

[760]*760As so often is the case with general statutory rules, crucial qualifications have emerged in the case law. In Tilton, 376 U.S. at 181, 84 S.Ct. at 602, the Supreme Court stated that “[a] returning veteran cannot claim a promotion that depends solely upon satisfactory completion of a prerequisite period of employment training unless he first works that period.” And in McKinney v. Missouri Kan. Tex. R.R. Co., 357 U.S. 265, 272, 78 S.Ct. 1222, 1227, 2 L.Ed.2d 1305 (1958), the Court said that “a veteran is not entitled to demand that he be assigned a position higher than that he formerly held when promotion to such a position depends, not simply on seniority or some other form of automatic progression, but on the exercise of discretion on the part of the employer.”

Both of these qualifications reflect circumstances in which it is not at all certain that the returning veteran would, if his civilian job had not been interrupted, actually have attained a given advancement at the civilian job. Where, on the other hand, advancement is geared solely to the passage of time, advancement obviously is more certain. Hence, a useful test for determining whether a veteran is entitled to the protection of the Act is “the test of reasonable certainty” — whether “ ‘as a matter of foresight, it was reasonably certain that advancement would have occurred . . ” Collins v. Weirton Steel Co., 398 F.2d 305, 309 (4th Cir. 1968) (quoting Tilton, 376 U.S. at 180, 84 S.Ct. at 602).2

In the instant cases the defendant railroad contends that the 1040-day work requirement is a training period, each day of which must actually be worked on the job before the apprentice carman repairer is advanced to journeyman status. Citing Til-ton, 376 U.S. at 181, 84 S.Ct. at 602, the railway maintains that the Act does not require it to count the days spent in military service toward the completion of this training program. The attainment of journeyman status, says the railway, depends on the achievement of a certain level of proficiency, and that proficiency can be acquired only by completing a 1040-day training period.3 The railway insists that by retroactively adjusting plaintiffs’ priority on the seniority roster — subsequent to each plaintiff’s actually serving 1040 days on the job — it has done all that the Act requires.4

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Brown v. Consolidated Rail Corp.
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499 F. Supp. 786 (E.D. Pennsylvania, 1980)

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Bluebook (online)
484 F. Supp. 758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beard-v-norfolk-western-railway-co-vawd-1980.