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BRICKNER v. JOHNSON MOTORS

May 27, 1969

DAVID J. BRICKNER, PLAINTIFF,
v.
JOHNSON MOTORS, A DIVISION OF OUTBOARD MARINE CORPORATION, DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff David J. Brickner was hired as a packer by Johnson Motors on September 8, 1965. Except for the period from October 22, 1965 to October 30, 1967, he has been continuously employed by that company. The intervening two years were spent in military service.

The only question presented by the pleadings and the parties' respective motions for summary judgment is whether Brickner occupied a position "other than temporary," as that phrase is used in section 9(b) of the Military Selective Service Act, 50 U.S.C. App. § 459(b). That statute provides:

  "[A]ny such person who, in order to perform such
  training and service, has left or leaves a position
  (other than a temporary position) in the employ of
  any employer * * * —
  "(B) if such position was in the employ of a private
  employer, such person shall —
    (i) if still qualified to perform the duties of
    such position, be restored by such employer or his
    successor in interest to such position or to a
    position of like seniority, status, and pay * * *."

As a packer, Brickner occupied a permanent job classification. But the plaintiff has only been credited with seniority subsequent to October 1967 when he returned from the armed forces. Johnson Motors argues that Brickner's initial employment was only "temporary" because the 1965 collective bargaining agreement declared that "new employees must serve ninety (90) days on probation before establishing a seniority rating."

The purposes served by the probation term, however, are unrelated to the objectives of the statute. Johnson Motors naturally needs a period of time in which to assess a new employee's ability. But preliminary scrutiny of a permanent employee does not convert his job into a "temporary" position.*fn1 Rather, temporary employment encompasses casual jobs of short duration;*fn2 in the Congress, Senator Danaher supplied the following examples:

  "Suppose a man is hired to pick corn in Virginia, and
  the corn-picking job expires within a week, and then
  he is told there is no more work. Or suppose he is
  hired to pick apples in Connecticut in September, and
  after the apples are picked he is told there is no
  more work." 86 Cong.Rec. 11030.

As the collective bargaining agreement recognized, once the probation was completed, Brickner was entitled to seniority credit from the date originally hired. Since the probation was interrupted by military service, the plaintiff was properly allowed to complete his probation upon returning. In section 9(c)(2) of the Act, Congress explicitly declared that:

  "It is * * * 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." 50 U.S.C.
  App. § 459(c)(2).

See Accardi v. Pennsylvania R. Co., 383 U.S. 225, 228, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966). The statute thus insulates employees from the loss of seniority, and Johnson Motors should have dated Brickner's seniority from September 8, 1965.

The defendant emphasizes Lesher v. P.R. Mallory & Co., 166 F.2d 983 (7th Cir. 1948), in which a similar probation period was equated with a "temporary" position.*fn3 See also Venzel v. U.S. Steel Co., 209 F.2d 185 (6th Cir. 1953). Shortly thereafter, though, the Seventh Circuit undercut Lesher in Foor v. Torrington Co., 170 F.2d 487, 489-490 (7th Cir. 1948), declaring that:

  "`Temporary,' we think, means `lasting for a time
  only,' or casual, as distinguished from regular. * *
  * Since employment for an indefinite period was
  contemplated * * * we think ...

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