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October 2, 1947


The opinion of the court was delivered by: MURPHY

Petitioner is an employee of the Central Pennsylvania Quarry, Stripping and Construction Company, a Pennsylvania corporation having its principal place of business *fn1" in the City of Hazleton in this district. He entered its employ February 8, 1944, as a truck driver and worked for it at Hauto, Pennsylvania, on an ash bank removal job until he was inducted into the Army March 23, 1944. He served in the Army until January 17, 1946, when he was honorably discharged and received a certificate to that effect.

After his tour of duty in the Army ended, he was qualified to perform the duties of a truck driver. Within eight days of his discharge he applied to the corporation, as was his right under the Selective Training and Service Act of 1940, 54 Stat. 885, 50 U.S.C.A.Appendix, § 301 et seq., for restoration to his former position. He was offered a position as truck driver on a job between Centralia and Ashland, Pennsylvania, on January 28, 1946, a position respondent contended was of like seniority, status and with higher pay than petitioner formerly received. Petitioner refused to accept the offer of employment and insisted on being engaged to work on another contract respondent was then performing in the same city where petitioner had formerly worked for respondent, to wit, Hauto, Pennsylvania.

 Petitioner enlisted the aid and service of the Veterans' Assistance Program officials in the Pennsylvania Selective Service headquarters, after going through local channels. After investigation, the chief of the legal division wrote on behalf of the State Director of Selective Service for Pennsylvania advising respondent that they were 'writing the veteran and recommending that he accept' the position offered to petitioner by respondent. Petitioner refused to follow the recommendation and enlisted the aid of the United States Attorney for this district, for aid in the preparation of a petition and the prosecution thereof before the court. Whereupon a petition was filed under Section 8(e) of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 308(e) for restoration of employment as provided by Section 8(b)(B) of the Act, 50 U.S.C.A.Appendix, § 308(b)(B) and for loss of waves as provided in Section 8(e).

 The questions for decision are: Is petitioner qualified for the job he seeks? Was his position with respondent other than temporary? Was there such a change in the employer's circumstances as to make it impossible or unreasonable to restore petitioner to his former position? Did respondent in good faith comply with the requirements of the Act and offer petitioner a position of like seniority, status and pay/ Was the demand of the petitioner reasonable and within the protection afforded him by the Act?

 Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A.following Section 723c, provides inter alia, 'in all actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment * * * .'

 In this case there is substantial agreement on the facts. The crux of the situation lies in the solution of the question whether respondent complied with the Act by offering petitioner the job on the highway between Centralia and Ashland, or does the scope of the protection afforded the veteran by the Act require that he be given the job demanded at Hauto, Pennsylvania?

 The situation can be more easily understood and resolved by a statement of the pertinent facts.

 Respondent corporation, as its name implies, is engaged from time to time and place to place wherever it is the successful bidder in competition with other construction companies in quarry work, coal stripping, and construction of various kinds, e.g. airport and highway construction. On occasion it receives contracts for removal of ash banks and on occasion contracts are given respondent by some of the Anthracite coal companies for removal and hauling of coal banks to railroad cars for transportation to coal breakers, or sometimes removal of the coal banks and hauling directly to the coal breakers, as well as hauling the reject material from the banks and from the coal breakers.

 When respondent receives a contract for work with other than the Anthracite coal companies, it is free to operate and does operate on a non-union basis, to hire and fire whomsoever it pleases, with the right to fix rates of pay; hours of work as it desires providing it can satisfy the men it employs, and the conditions of the contracts under which it is engaged as to time allotted for completion of the contract. On these contracts there was no union among respondent's employees, no seniority rights or seniority roster. Status was fixed by the working arrangements between the individual employer and employee.

 The situation is considerably different when respondent receives a contract to do work for one of the Anthracite coal companies. That situation is uniformly controlled by an agreement executed May 26, 1939, between the mine union and the coal operators, reaffirmed and continued by supplementary agreements. May 20, 1941, March 8, 1944, May 19, 1945, June 7, 1946. One of the conditions of any contract entered into by a contractor with an Anthracite coal company is compliance with the terms of the agreement of 1939. A refusal to accept the conditions of Paragraph 3 of that agreement would mean inability to receive the contract; non-compliance with its terms would mean a strike by the mine union to enforce the terms of its contract.

 Paragraph 3 of the 1939 agreement provides inter alia, 'It is agreed that the United Mine Workers of America is recognized . . . as the exclusive bargaining agency representing the employees . . . it is agreed that as a condition of employment all employees shall be members of the United Mine Workers of America . . . ' (with an exception not here pertinent).

 The mine union contract with the operators calls for a seven hour day and a five day week, with special provisions for work when performed on the sixth day in any work week. Wages are fixed at rates which must be conformed to by the entire industry.

 While petitioner was in the Army, i.e., May 18, 1944, respondent was awarded a contract for the removal and hauling of coal and reject material by the Hauto Coal Company, an Anthracite coal company at Hauto, Pennsylvania. This contract was subject to the closed shop condition, and other arrangements described supra. Because of war conditions and the scarcity of labor, the union could not supply sufficient men to meet respondent's needs. An arrangement was made whereby respondent could engage non-union men on condition they became members of the miners' union within 30 days from hiring. Respondent's work under the Pennsylvania Power and Light Company contract was then about completed so that respondent offered and many of the truck drivers on the Pennsylvania Power and Light job accepted positions as truck drivers and became members of the mine union within 30 days of hiring. This work was continuing at the time of petitioner's application to be restored to his employment. Some of those employed on the Hauto Coal Company job were employed at a date later than petitioner was employed on the Pennsylvania Power and Light Company job and on the Hauto Coal Company job, but all of necessity became members of the mine union.

 By January 1946, the labor supply was more plentiful. The mine union insisted on their closed shop agreement and consequently only mine union members could be engaged by respondent. In order to employ petitioner respondent was confronted with several alternatives. Respondent could take the position that petitioner was qualified as a truck driver but not qualified as a member of the mine union; that the position under the Pennsylvania power and Light Company contract was temporary. Respondent contends that truck drivers are engaged for each separate contract and when the work is completed they are then offered work on some other contract of respondent which they may accept or reject, and that the contract on which petitioner was working terminated August 10, 1944. Respondent contends that it reserved and had the right in all cases to transfer a truck driver from job to job, which he must accept or lose employment. This would apply to all contracts other than those where the mine union conditions prevail. Finally respondent could contend that because of the closed shop provision, the termination of the contract, the ineligibility of the petitioner since he was a non-union man, respondent was not obliged to engage him on the Hauto Coal Company job. That he had a right when petitioner was in his employ to transfer him at will, and that at all events conditions had so changed that it was impossible or unreasonable to expect him to engage petitioner on the Hauto Coal Company job, and therefore the only proper solution within respondent's control in order to carry out the spirit and intent of the Act was to offer him the highway construction job, which respondent did.

 When petitioner refused to accept, respondent then had two alternatives; (a) He could discharge an employee of the union and engage petitioner in his place. This would in all probability result in a strike and the discharge of petitioner, or a loss of the contract by respondent, with a consequent financial loss to petitioner and respondent, and a failure to provide for the rehabilitation of petitioner, the purpose of Congress in passing the Act; (b) Respondent could attempt to arrange with the union to have petitioner accepted as a member and then hire him on the coal company job. Respondent's president suggested to petitioner that respondent would arrange such a meeting with the union president to see if union membership could be accomplished. Petitioner refused to participate in such meeting, saying that the effort would be futile, and insisted that he would not accept respondent's offer of a job on the highway but that, on the contrary, respondent should discharge one of the men, who were not veterans and who were hired after he was employed on February 8, 1944, and give him his place on the payroll.

 Since petitioner refused to accept the offer of employment and was ineligible under the circumstances for the coal company job, respondent did no more but continue his offer of employment and prepare to defend the action.

 Petitioner's position is that he has a wife and young child at Hazleton; that the Hauto job is only 17 miles from his home; that transportation is available in the car of friends to get to Hauto, whereas he would have to live at Centralia or Ashland, 26 miles away, no transportation being available.

 Respondent suggested that petitioner claim a job on an operation of respondent two miles from his home. Petitioner refused, insisting that under the Act respondent is obliged to engage him at Hauto ...

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