position received $ 55 per week, and he was rehired at the old salary of $ 50 per week. The circumstances of the respondent corporation were not shown to have changed so as to make it impossible or unreasonable to rehire the petitioner in his old status. In addition, petitioner has testified to his willingness, ability, and preparedness to resume his prior position.
This case was clouded by some personal disagreements and unpleasantness between the parties resulting in allegations of lack of good faith on the part of the petitioner. The argument that the petitioner was planning to run a competitive business and was, therefore, deprived of access to the records of the firm is not cognizable under the Act. Likewise, it was immaterial that the petitioner did not desire at first to return on his job. He is given ninety days his plans before applying, upon application within ninety days of discharge, he is entitled, providing all the other requisites are met, to be reinstated in his old position.
Petitioner was re-employed on March 7, 1946 as 'Floor Manager', which entailed waiting on women customers, which duty he allegedly shirked. Although there was evidence which might reflect upon the character of the petitioner it does not disqualify him from being entitled to his previous position. As a result of these difficulties, petitioner was discharged after three and one-half weeks on March 30, 1946 by a formal letter signed by Mrs. Bauer, Vice-president of the respondent.
Petitioner seeks restoration to his former position guaranteed for one year by Statute, and also compensation for his loss of wages or benefits suffered by respondent's action.
In a stipulation filed following the trial both parties agreed that petitioner received no other income since the time he applied for reinstatement to his position to date. He did receive the sum of $ 240 Servicement's Readjustment Allowance under the Act which does not constitute earnings in other employment, and which sum the respondent, Mohawk Shop, Inc., is not entitled to credit against loss of wages caused by its unlawful actions. Hoyer v. United Dressed Beef Co. et al., D.C.S.D. Cal., 57 F.Supp. 730 (Yankwich, Judge).
Findings of Fact
1. Petitioner, Meyer Troy, was employed in a managerial capacity by the Mohawk Shop, Inc., for a year and a half prior to December 20, 1941.
2. Petitioner entered the Army of the United States December 20, 1941 and, after four years and twenty three days, was granted an honorable discharge.
3. Petitioner applied for reinstatement to his former position and was refused it in a letter by the President of respondent, postmarked February 10, 1946.
4. The position which was offered him, and which he held for three and one half weeks, was unlike his former position in seniority, status, and pay.
5. Petitioner, though re-employed on March 7, 1946, was not restored to a position of like duties and responsibilities, and was discharged therefrom on March 30, 1946.
6. Meyer Troy was never re-employed by the Mohawk Shop, Inc., in the position which he held before entering the service.
7. Respondent corporation's circumstances have not so changed as to make it impossible to rehire the petitioner.
8. Petitioner is prepared and willing to resume his prior position.
9. Petitioner obtained no earnings in other employment, but did receive the sum of $ 240 Servicemen's Readjustment Allowance.
Conclusions of Law
1. Meyer Troy is lawfully entitled to be restored to that position which he held prior to his entry into the service at the rate of pay of $ 55 per week for 52 weeks; and may not be discharged from that position without cause within that time.
2. Meyer Troy is entitled to be compensated by Mohawk Shop, Inc., for loss of wages and benefits suffered by reason of its unlawful action, at the rate of $ 55 per week from April 1, 1946, the date following his discharge, until he shall have been restored, or offered restoration, to his former position by the Mohawk Shop, Inc.
3. Meyer Troy is further entitled to be compensated by Mohawk Shop, Inc., for the loss of wages during his three and one half weeks employment at the Mohawk Shop, Inc., from March 7 to March 30, 1946, at the rate of $ 5 a week, representing the difference between the salary he was receiving and that to which he was entitled.
4. The readjustment allowance paid to Meyer Troy by the United States does not constitute earnings in other employment, and the Mohawk Shop, Inc., is not entitled to have the payments made under such allowance credited against loss of wages caused by its unlawful actions.
Now, August 9, 1946, it is ordered as follows:
1. That the respondent, Mohawk Shop, Inc., its officers, agents, servants, and employees be, and are hereby, specifically directed to offer to Meyer Troy re-employment and restoration to his former position at the rate of pay of $ 55 per week.
2. That, at the time of the making of such offer, to tender and pay to Meyer Troy the amount of money which then equals the sum of $ 55 multiplied by the number of weeks, plus any fraction of a week, included within the period of time from April 1, 1946, until the Mohawk Shop, Inc., shall have made to Meyer Troy such offer of restoration, plus the sum of $ 5 a week, representing the difference between the salary he was receiving and that to which he was entitled for the period March 7, 1946 to March 30, 1946.
3. That the respondent, its officers, agents, servants, and employees be, and hereby are, directed, upon the acceptance of said offer by Meyer Troy, not to discharge Meyer Troy from such position without legal cause within 52 weeks from the date upon which he shall have been so restored.
4. That jurisdiction of this case is retained until the Mohawk Shop, Inc., shall have complied with the requirements of paragraphs 1 and 2 of this judgment.
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