Before MAJOR, Chief Judge and KERNER and SWAIM, Circuit Judges.
This action was brought under the Selective Training and Service Act, as amended, Title 50 U.S.C.A.Appendix § 308 (subsequently called the Act), by plaintiff, a veteran, against the defendant railroad company, for reinstatement to the position as brakeman and for wages lost by reason of his alleged wrongful discharge. The court, on October 10, 1951, adopted findings of fact and conclusions of law, and, predicated thereon, entered a judgment adverse to the plaintiff, from which this appeal comes.
Plaintiff was employed by the defendant as a brakeman on March 20, 1941, and continued in such employment until inducted into the United States Army July 29, 1942. Upon his discharge from such army service, on November 1, 1945, he made timely application with the defendant for reinstatement, was reemployed and resumed work as a brakeman on January 10, 1946. Plaintiff during all the period material to this litigation was a member of the Brotherhood of Railroad Trainmen.
On May 10, 1946, plaintiff received from the defendant by registered mail the following letter:
"This office issued Bulletin No. 27, dated March 29, 1946, which provided that you would take the required examination for promotion to conductor not later than May 4, 1946.
"You failed to comply with Bulletin No. 27 referred to and in accordance with the provisions of Rule 1-B-2, paragraph (b), you have ceased to be an employe of this Company and your service has been terminated."
The rule referred to in this letter was contained in the collective bargaining agreement (afterward called the agreement) entered into between the Brotherhood and the defendant on September 16, 1942 (while the plaintiff was in the military service) and, as the letter discloses, plaintiff's employment was terminated for failure of compliance on his part. As already shown, the termination of plaintiff's employment as a brakeman was within one year after his reemployment subsequent to his military service.
Obviously, the ultimate issue for decision is whether plaintiff's employment was terminated in violation of his rights as fixed by the Act, and this in turn depends upon whether it was with or without cause. Defendant contends that the termination was justified, in fact required, by the terms of its agreement with the Brotherhood and it follows, therefore, that it was not "without cause." Plaintiff contends that the provisions of the agreement relied upon by the defendant is invalid because in conflict with the Act and, therefore, furnishes no justification for defendant's action.
The provision of the agreement which furnishes the main basis for the controversy relates to the means and manner of promoting a brakeman to the rank of conductor. On July 29, 1942 (at the time of plaintiff's induction into military service) and for many years prior thereto, there was in effect an agreement between defendant and the Brotherhood which required in effect that a trainman, in order to obtain such promotion, successfully pass one of three examinations. The agreement stated, "A trainman failing to pass the third examination or declining any examination or promotion will become the junior brakeman, and can only come up again in his turn."
The agreement of September 16, 1942 contained paragraphs (a) and (b) of Rule 1-B-2, material to the instant controversy. Paragraph (a) provides in effect that any brakeman who has "actually worked" as such for a period of time less than 528 days shall be examined for promotion to conductor. Paragraph (b) provides for three examinations, with 30 days intervening to prepare for the next if he has failed to pass the preceding examination. It provides, "If he fails to pass the third of such examinations, or declines to take any of the said examinations, he shall cease to be an employe of the Company, provided that, prior to the effective date of this Agreement, he has actually worked as brakeman, baggageman, or ticket collector less than 528 days." The rule further provides that if a brakeman has "actually worked" 528 days or more prior to the effective date of the agreement and fails to pass the third of such examinations, or declines to take any of said examinations, "he shall become the junior trainman on the seniority roster and shall not thereafter be entitled to promotion to conductor."
Plaintiff had actually worked about 495 days as a brakeman at the time he entered military service and had that number of days to his credit on September 16, 1942, the effective date of the new agreement. No question is raised but that the new agreement was entered into as the result of the normal bargaining process, in good faith and without intention or purpose on the part of either of the contracting parties to discriminate against veterans. The name of the plaintiff, upon his reemployment subsequent to military service, appeared on defendant's roster of employees in the same seniority position as though he had not been absent.
On March 29, 1946, defendant's "Trainmaster's Bulletin No. 27" was posted at numerous places, in conformity with the requirements of the agreement. This bulletin stated, "The following trainmen are entitled to be promoted to conductor in accordance with their brakeman seniority standing and they must take the required examination not later than May 4, 1946." Ten names were listed, including that of the plaintiff. The bulletin specified the place and the days on which an examiner would be available and concluded, "The trainmen named must comply with the above and their attention is called to Paragraph (b) of Rule 1-B-2 which provides that a trainman who fails to pass the third examination or declines to take any of the examinations, shall cease to be an employee of the Company."
In connection with this bulletin, plaintiff contends that it was without effect because not in compliance with Rule 1-B-3 of the bargaining agreement, which provided that "a list of eligible trainmen shall be posted for ten days prior to the time of examination * * *." Because the bulletin states that "The examiner will be available effective at once," it is argued that the ten-day posting required by the rule was not complied with. This contention, of course, overlooks the fact that the bulletin was posted on March 29 and that all persons named thereon were given ...