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Gottschalk v. Railway Express Agency Inc.

decided: February 11, 1948.

GOTTSCHALK
v.
RAILWAY EXPRESS AGENCY, INC.



Before MARIS, GOODRICH, and O'CONNELL, Circuit Judges.

Per Curiam.

It appears that the petitioner in this case was discharged by the respondent from his position as assistant agent at the respondent's Communipaw Avenue Terminal in Jersey City within one year after his restoration to the respondent's service following his release from active duty as a reserve officer in the army. He asserted in his petition to the district court that his discharge was without cause in violation of Section 3(c) of the Army Reserve and Retired Personnel Service Law of 1940, 50 U.S.C.A.Appendix, § 403(c), and he asked the court to order his restoration to the position from which he was discharged.

After hearing, the district court made full findings of fact and concluded that the respondent's discharge of the petitioner was with cause and that he was, therefore, not entitled to be restored to his position. Our examination of the evidence satisfies us that it supports the court's findings of fact. We are equally satisfied that the findings of fact compel the court's conclusion that the respondent had legal cause for its discharge of the petitioner and that he was not entitled under the statute to be restored to his position It follows that the petition was properly dismissed.

The order of the district court will be affirmed.

On Petition for Rehearing.

Per Curiam.

The petitioner has applied for rehearing and strongly urges that the sole cause of his discharge was his activity as a lawyer, outside of his working hours as assistant agent for the respondent, in defending certain policemen of the City of Hoboken against oppressive measures taken against them by their superiors in the city government. This, he insists, was not just cause for dismissal within the meaning of Section 3(c) of the Army Reserve and Retired Personnel Service Law of 1940, 50 U.S.C.A.Appendix, § 403(c). We have accordingly reexamined his contentions.

If what the petitioner asserts were all there was to his case his contention would have much force. But there is more which we cannot ignore. The district court upon ample evidence, made the following findings of fact:

"8. Prior to April 11, 1946, one of the police officers being represented by the petitioner was Edward J. Sheehy, who was under suspension from the Police Department of the City of Hoboken for alleged willful disobedience of orders. On April 11, 1946, the petitioner accompanied Edward J. Sheehy to the Jersey City Terminal of the respondent where the petitioner sought out Joseph J. Schnell, the agent in charge of that terminal for respondent for the purpose of obtaining a temporary position for Police Officer Sheehy.

"I find that Sheehy, at the solicitation of the petitioner, was employed by the agent Schnell as a temporary employee to perform the ordinary duties of an expressman in loading and unloading shipments of merchandise from and to railroad cars and trailers, and other work incidental thereto, and that the said Sheehy was generally familiar with that work having been employed by the respondent eight or nine years prior thereto.

"I find that the said Sheehy submitted to a physical examination by a physician employed by the respondent on April 11, 1946, and stated to said physician that he had not had any sicknesses during the past five years and that the said physician found that the said Sheehy was physically qualified to fill the position of platform man with the respondent.

"The said Sheehy began work on the night of April 11, 1946, and worked four nights for the said respondent and performed the regular work and in the same manner as performed by other employees engaged in the same line of work with him. At the end of the four days work the said Sheehy's employment was discontinued because of lack of work due to a strike of elevator operators in New York City.

"On May 13, 1946, Sheehy's trial for alleged willful disobedience of orders came on for hearing before the Deputy Director of the Department of Public Safety of the City of Hoboken and the said Sheehy was defended by the petitioner as his attorney. The said Sheehy set up as his defense in that trial that he did not willfully disobey any orders of his superiors and that he was physically unable to carry on the extra duty assigned to him in the Police Department because of illness. At his trial, when confronted with his employment beginning April 11, 1946, and continuing for four days at the respondent's place of business in Jersey City, he testified that he worked there only two and one-half days and that he was compelled to cease working because of his physical condition. He also testified that the position with the respondent had been obtained for him by the petitioner herein and that arrangements had been made for him to do light work, and that during the course of his employment he was permitted to pick out the small packages to carry, weighing approximately two to three pounds. Petitioner herein had admitted that he obtained the position for the said Sheehy and contended that he arranged with the agent, Mr. Schnell, for the said Sheehy to receive light work. This was brought out by the petitioner on the examination of the said Sheehy at the said police trial.

"9. As a result of said trial reports of it were printed in the public press and the trial came to the attention of the executive officers of the respondent. An investigation was undertaken to determine whether or not its agent Schnell had hired the said Sheehy at the solicitation of the petitioner at regular wages to do light work, and as a result of the said investigation Mr. J. F. Ross, General Manager of the Eastern Department of respondent, correctly concluded that the said Sheehy was not hired to do light work, that he did do his regular work and that he was paid the regular wages for the said work, and that the statements of the said Sheehy that he received light work ...


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