The opinion of the court was delivered by: WATSON
This is an action for enforcement of a veteran's right to re-employment under the Act of September 16, 1940, as amended, 50 U.S.C.A.Appendix, § 308.
The case was tried on May 29, 1946 before the Court, sitting without a jury. Testimony was taken, following the transcription of which arguments by counsel for both sides were heard and briefs were filed.
The testimony and exhibits offered in the case reveal the following:
Meyer Troy, hereafter referred to as the petitioner, was employed by the Mohawk Shop, Inc., hereafter referred to as the respondent, for a period of about a year and a half from June, 1940 to December 20, 1941. The Mohawk shop is a store handling coats, suits, dresses, and evening wear for women, with an all female staff with the exception of the petitioner, when he was employed there, and the janitor. In the words of the corporation's president, who hired the petitioner in 1940, the petitioner was in charge of the shop in the absence of the corporation president, George Bauer, or the corporation Vice-President, Jean Bauer (Mrs. George Bauer), the Bauers being present only a few days each month. Petitioner had authority to hire and fire employees, to keep the books of the store and the cash, and to trim the windows. Petitioner testified to several additional duties but those described above are sufficient to show the nature of petitioner's responsibilities. On December 20, 1941, at which time his salary was $ 50 a week, petitioner enlisted and entered into active duty in the Army of the United States, where he remained until January 12, 1946, at which time he was granted his honorable discharge and separated from active duty.
Petitioner, following his discharge, duly applied for reinstatement to the position held by him before his enlistment. On February 10 and February 24, 1946, Mr. Bauer wrote letters to the petitioner stating that ' * * * the girl manager * * * has done a most satisfactory job. * * * I * * * can't see any sense of disrupting a smooth running organization at this time and under these circumstances.'
Upon receipt of these letters, petitioner advised his Local Selective Service Board of his difficulties which, in turn, took steps which brought about a request for petitioner's return to employment at the store.
Petitioner reported for work March 7, 1946, and was rehired by Mrs. Bauer, Vice-President of the defendant corporation. There was some variance as to exactly what the petitioner's duties were upon his reinstatement, but it is clear from the following excerpts of testimony of Mr. Bauer, the President of the defendant corporation, what petitioner's status was, both before and after the period he spent in the service.
'Q. You did not keep these books? A. I did not.
'Q. They are kept by whom? A. By Miss Anthony.
'Q. When Mr. Troy was there did he keep these books? A. He did.
'Q. He kept them for a year and a half? A. Yes, sir.
'Q. Who did you say the present manager was? A. When I am not present, and my wife is not present, Miss Helen Anthony is manager.
'Q. What is her salary at the present time? A. $ 55.00.
'Q. When was she hired as acting manager when you or your wife are not there? A. At the time Mr. Troy entered the Service, I put Miss Anthony in charge.
'Q. So Miss Anthony succeeded to Mr. Troy's ...