United States District Court, Northern District of Illinois, E.D
April 14, 1967
RICHARD T. POWER, PLAINTIFF,
NORTHERN ILLINOIS GAS COMPANY, A CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Lynch, District Judge.
MEMORANDUM OF DECISION
Plaintiff Richard T. Power has brought this action against the
defendant, Northern Illinois Gas Company, for lost wages not paid
to plaintiff by reason of defendant's alleged violation of the
provisions of Section 9(c) of the Universal Military Training and
Service Act, as amended. (50 U.S.C.App.Supp. V § 459)
Power began his employment with Northern Illinois Gas Company
on November 30, 1956, in the position of a Meter Repairman's
Helper. On July 1, 1957 Power was promoted to the classification
of a Meter Shop Helper. On several occasions in February and
March of 1957 Power performed "upgraded work" consisting of some
of the duties performed by persons classified as Meter Repairmen.
On January 2, 1958 Power entered the Armed Forces of the United
States. While in the military service he was involuntarily
extended for a term of one year. He was released from active duty
on May 15, 1962, and within 90 days after his release he applied
to Northern for restoration of his position. He returned to work
on June 4, 1962. During the period when Power was in the military
service, Meter Shop Helpers with less seniority than Power were
offered and accepted the opportunity for promotion to the
classification of Meter Repairman at the company's LaGrange,
Illinois, Meter Shop where Power was employed. Each of the
persons promoted in Power's absence successfully completed a
probationary period in the classification of Meter Repairman and
this classification was made permanent.
From June 4, 1962, the day on which Power returned to work
until March 30, 1964, no vacancies in the classification of meter
repairman naturally resulted, nor did Northern seek to create a
vacancy by demoting any person holding such a classification.
When the first permanent vacancy arose in the classification of
Meter Repairman on March 30, 1964, Power was offered and accepted
the upgraded position. He satisfactorily completed a three-month
probationary period, was permanently assigned to the
classification of Meter Repairman, and was granted a seniority
date retroactive to March 16, 1958. On March 25, 1966, Power left
his employment with Northern.
The issue before this Court is whether Power was entitled to
the position of Meter Repairman on the day he returned from the
service. It has been stipulated that if Power prevails the
measure of his damages is the difference between the wages he
actually earned from the date of his reemployment on June 4, 1962
until the date he left Northern and the wages he would have
earned had he been promoted to the classification of Meter
Repairman on June 4, 1962.
Section 9 of the Universal Military Training Act requires that
veteran who meets the conditions imposed by the statute be
restored "to a position of like seniority, status, and pay."
Section 9(c)(1) provides that he be restored "without loss of
seniority." This same provision in an earlier Act was interpreted
to mean that a returning veteran does not step back at the exact
point he left his employment, but rather that he is entitled to a
position which, on the moving escalator of terms and conditions
affecting that particular employment, would be comparable to the
position which he would have held if he had remained continuously
in his civilian employment. Fishgold v. Sullivan Drydock & Repair
Corp., 328 U.S. 275, 284-285, 66 S.Ct. 1105, 90 L.Ed. 1230;
Oakley v. Louisville & N.R. Co., 338 U.S. 278, 283, 70 S.Ct. 119,
94 L.Ed. 87.
Following these decisions Congress expressly approved the
"escalator principle" by adopting § 9(c)(2) of the Act which
"It is declared to be the sense of the Congress that
any person who is restored to a position in
accordance with the provisions of paragraph (A) or
(B) of subsection (b) of this section should be so
restored in such manner as to give him such status in
his employment as he would have enjoyed if he had
continued in such employment continuously from the
time of his entering the armed forces until the time
of his restoration to such employment."
It has been held, however, "that where advancement depends on
an employer's discretionary choice not exercised prior to entry
into service, a returning veteran cannot show with the reasonable
certainty required by the Act that he would have enjoyed
advancement simply by virtue of continuing employment during the
time he was in military service." (Tilton v. Missouri P.R. Co.,
376 U.S. 169
, 180, 84 S.Ct. 595, 602, 11 L.Ed.2d 590, amplifying
on the holding in McKinney v. Missouri-Kansas-Texas Railroad
Company, 357 U.S. 265
, 78 S. Ct. 1222, 2 L.Ed.2d 1305.) When a
veteran applies for re-employment he is not entitled to a
position higher than the one he formerly held if advancement
depends "not simply on seniority or some other form of automatic
progression, but on the exercise of discretion on the part of the
employer." McKinney v. Missouri-Kansas-Texas Railroad Co.,
357 U.S. 265
, 272, 78 S.Ct. 1222, 1227.
It is not required "as a matter of foresight" when the veteran
enters the service that all the circumstances essential to his
advancement will occur. As the Supreme Court noted in the Tilton
case, supra, such contingencies as continued satisfactory work
performance, good health and a willingness to accept the higher
position will not defeat the veteran's rights. The legislation
"is to be liberally construed for the benefit of those who left
private life to serve their country." Fishgold v. Sullivan
Drydock & Repair Corp., supra, 328 U.S. at 285, 66 S.Ct. at 1111.
In Tilton, the Supreme Court stated:
"* * * we conclude that Congress intended a
reemployed veteran who, upon returning from military
service, satisfactorily completes his interrupted
training, to enjoy the seniority status which he
would have acquired by virtue of continued employment
but for his absence in military service. This
requirement is met if, as a matter of foresight, it
was reasonably certain that advancement would have
occurred, and if, as a matter of hindsight, it did in
The term "seniority" as used in the Act in 9(b)(B) and (c) is
not defined, but derives its content from private employment
practices and agreements. "This does not mean, however, that
employers and unions are empowered by the use of transparent
labels and definitions to deprive a veteran of substantial rights
guaranteed by the Act. * * * That intention was to preserve for
the returning veterans the rights and benefits which would have
automatically accrued to them had they remained in private
employment rather than responding to the call of their country."
Accardi v. Pennsylvania, 383 U.S. 225
, 86 S.Ct. 768, 15 L.Ed.2d
"Seniority" covers those benefits which result from the length
of tenure on the job, whether the benefits consist of the right
to a better job classification, as in Diehl v. Lehigh Valley R.
Co., 348 U.S. 960, 75 S.Ct. 521, 99 L.Ed. 749; or the right to
better working hours and less chance of layoff as in Fishgold,
supra, or Tilton, supra; or the right to higher separation
allowances, as in Accardi, supra; or the right to pay increases
as in Moe v. Eastern Air Lines (5th) 246 F.2d 215, and Borges v.
Art Steel, (2 Cir.,) 246 F.2d 735,
It is the contention of the defendant that Power's promotion
depended on more than mere seniority; that ability and managerial
discretion were involved in determining Power's right to
advancement. The terms of the collective bargaining agreement in
effect during the relevant period provided:
"In case of promotion to higher job classification
within the bargaining unit, the factors to be
considered shall be ability and seniority. Where the
ability of the employes under consideration is
substantially equal the employe highest on the
seniority list will be the one promoted. In case of
promotion if the employe who is highest on the
seniority list is not selected, he shall be informed
by the company of the reason why he was not promoted.
The Union shall be furnished the names of employes
not promoted in accordance with seniority."
The mere fact that the contract uses the word "ability" does
not preclude the plaintiff from recovery. The issue is whether
in actual practice the promotion from meter shop helper to
meter repairman was "discretionary" on the part of management or
"virtually automatic" on the basis of seniority. Witty v.
Louisville and Nashville Railroad Company, (7th) 342 F.2d 614;
and McKinney, supra, 357 U.S. at page 274, 78 S.Ct. 1222.
The evidence presented at the trial shows that during the
plaintiff Power's absence in the military service twenty Meter
Shop Helpers were promoted to the classification of Meter
Repairman at Northern's LaGrange, Illinois, meter shop. Without
exception, these promotions followed the order of seniority. The
defendant has not cited one instance in which the order of
seniority was deviated from promoting meter shop helpers to meter
Based on this record, the Court finds that the promotion
involved no discriminating managerial choice. As applied to the
LaGrange meter shop, it would seem that the term "ability" as
used in the agreement only required continued satisfactory job
performance. The Tilton case, supra, made it clear that
continued satisfactory job performance is not such a contingency
as will preclude advancement, if the promotion is, in other
Under these circumstances, plaintiff, but for his entry into
the Armed Forces, would have been promoted on March 16, 1958.
This date is barely two and one-half months later than the date
on which Power entered the service. Instead, Power upon his
return from the service was obliged to wait nearly two years for
his promotion. To uphold the actions of the defendant would do
violence to the purpose of the Universal Military Training and
Service Act that he who "is called to the colors [is] not to be
penalized on his return by reason of his absence from his
civilian job," and would render the "escalator principle"
contained in the Act a nullity.
For the reasons stated herein judgment will be entered for the
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