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April 14, 1967


The opinion of the court was delivered by: Lynch, District Judge.


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.

Following these decisions Congress expressly approved the "escalator principle" by adopting § 9(c)(2) of the Act which provides:

  "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
  fact occur."

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 ...

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