DocketNumber: Civ. No. 1907
Citation Numbers: 178 F. Supp. 734
Judges: Bryan
Filed Date: 11/2/1959
Status: Precedential
Modified Date: 11/26/2022
Donald Wayne Robertson, pursuant to the provisions of the Universal Military Training and Service Act, now asks the court to require the Richmond, Fred-ericksburg and Potomac Railroad Company to restore him to the position with the Railroad he left when he was inducted into the armed forces of the United States. 50 U.S.C.A.Appendix, § 451 et seq.
Though scarcely in dispute, the facts present a situation wherein the plaintiff
On September 9, 1958, after receipt of the new discharge, he again sought reinstatement with the Railroad. Although the discharge constituted a certificate of satisfactory completion of service, the Railroad still declined to accept him because more than 90 days had elapsed since his release from the Army. The Railroad felt it had no other alternative. It felt bound to protect the seniority of its other employees against loss in status through an unauthorized restoration of the plaintiff to his former standing.
The court is of the opinion that the plaintiff should have been accepted by the Railroad. The action of the Army upon review of plaintiff’s initial discharge conclusively proves that the discharge was erroneous ab initio. This conclusion finds emphasis in the retro-activeness of the correction. The error was in no wise the plaintiff’s. Moreover, although the correction was not made until the expiration of more than 90 days, the delay was attributable to the time consumed by the proceedings of the Army — something wholly beyond the plaintiff’s control. On his part the prosecution was prompt and diligent.
In these circumstances the court is of the opinion that the 90-day statutory period should not be read to preclude the veteran from his reemployment rights. Nothing in the Act compels a different interpretation. Presentation of the certificate is not confined by the statute to this time limit. The application, once seasonably made, preserves the right of restoration until a final decision is made, in proceedings provided therefor by law, upon the kind of discharge to which the veteran is entitled. However, the employer must also receive the protection of the Act — both in its liability to compensate the employee and in its duty to safeguard the seniority of its other employees.
To these ends an order will be entered directing the defendant to reinstate the plaintiff to his prior position without loss of seniority, or to a position of like seniority, status and pay, and without liability for discharge except for cause within one year from his reinstatement. Also in accord with the Act, the order will entitle him to participate in insurance or other benefits offered by the Railroad under its rules and practices relating to employees on leave of absence in effect on September 14, 1956, the date of the plaintiff’s induction.
The United States Attorney, who represented the plaintiff, will present an order in accordance with these views, first submitting it to opposing counsel for
. As pertinent, this Act provides in 459 (b) as follows:
“In the case of any such person who, in order to perform such training and s'ervice, has left or leaves a. position (other than a temporary position) in the employ of any employer and who (1) receives such certificate, and (2) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year—
*****
“(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; * *
. 50 U.S.C.A.Appendix, § 459(c) (1).