United States District Court, Northern District of Illinois, E.D
May 27, 1969
DAVID J. BRICKNER, PLAINTIFF,
JOHNSON MOTORS, A DIVISION OF OUTBOARD MARINE CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Decker, District Judge.
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
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 the position was `other
than * * * temporary.'"
Moreover, Tilton v. Missouri Pacific R.R. Co., 376 U.S. 169
181, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964), held that, if a
veteran's training period is interrupted by armed service,
section 9(c) of the statute guarantees his seniority during the
See Brooks v. Missouri Pacific R.R. Co.,
376 U.S. 182
, 84 S.Ct. 578, 11 L.Ed.2d 599 (1964). By direct
analogy, section 9(b) protects Brickner's seniority since he
successfully completed the probation period after returning. See
Moe v. Eastern Air Lines, Inc., 246 F.2d 215
(5th Cir. 1957).
Collins v. Weirton Steel Co., 398 F.2d 305
, 309-310 (4th Cir.
1968), analyzed the significance of Tilton:
"Collins [Brickner] met the requirements of Tilton.
As a matter of foresight it was reasonably certain he
would have been retained after his probation. * * *
The only possibilities militating against Collins
were lack of work, ill health or failure to perform
satisfactorily. In Tilton, the Court held these
hazards did not destroy reasonable certainty of
advancement. They are, as the Court pointed out,
inherent in every veteran's employment case. We
conclude the same possibilities do not destroy
reasonable certainty of continued employment or make
a probationer a temporary employee."
Therefore, in September 1965 Brickner's packing job was "other
than a temporary position." Under section 9(b), Johnson Motors
was obligated to credit the plaintiff with seniority for the two
years spent in the armed forces. Accordingly, I have entered an
order today granting summary judgment to the plaintiff.