7. Plaintiff served in the Armed Forces of the United States between April 21, 1964, until his discharge on March 2, 1966; Plaintiff received an honorable discharge and a certificate evidencing the satisfactory completion of his military service.
8. Plaintiff made timely application for re-employment with Defendant Corporation and on March 14, 1966, was reinstated to his pre-service position as an Entry Craneman, Job Class 8.
9. Within approximately one week after plaintiff had been reinstated to his pre-service position, he protested to William Riddick, General Foreman of the Cold Reduction Department, Sheet and Tin Division, that Defendant Corporation had failed to place him in a position ahead of the junior employees next in seniority and behind the Plaintiff.
10. As of March 14, 1966, the Plaintiff's company plant and unit seniority date was December 12, 1961; Plaintiff's job seniority date in the position of Entry Craneman was April 14, 1964.
11. If Plaintiff had not been absent in the Military Service between April 14, 1964, and March 14, 1966, the Plaintiff would have been awarded the Promotion to the position of Coil Feeder Helper before the junior employee next in seniority behind the Plaintiff, Jerry Eavers, who was awarded the promotion on April 17, 1965, and Plaintiff's job seniority date would be April 6, 1965.
12. As of March 14, 1966, the next junior employee, Jerry Eavers, had a job seniority date of April 17, 1965.
13. By the terms of a Collective Bargaining Agreement between the defendant and the United Steelworkers of America covering production and maintenance employees, dated September 1, 1965, and implementation by a supplementary local seniority agreement between Fairless Hills Works of Defendant Corporation and Local 4889, United Steelworkers of America, CIO, when factors of ability and physical fitness are relatively equal, then promotions are determined by length of continuous service. It is undisputed that Plaintiff's ability and physical fitness were at all times relevant hereto, relatively equal to those junior employees promoted ahead of Plaintiff.
14. Plaintiff made repeated requests to William Riddick that he be placed ahead of those co-workers who were junior in seniority to Plaintiff at the time he was inducted into the Armed Forces.
15. Such requests were not acted upon by Riddick because of adherence to the Corporation's policy which was based upon two 1955 arbitration decisions between the United States Steel Corporation and the United Steelworkers of America.
16. Plaintiff was a member of United Steelworkers of America, Local 4889, which was affiliated with the United Steelworkers of America.
17. On or about March 14, 1966, Plaintiff consulted Frank Dzurinko, President of Local 4889, regarding his seniority grievance.
18. Plaintiff made repeated and persistent requests to Mr. Dzurinko from March, 1966, until June, 1966, regarding his seniority grievance.
19. Mr. Dzurinko did not process any grievance for Plaintiff but did suggest he talk to William Murphy, Plaintiff's Assistant Grievance Committeeman.
20. In late March, Plaintiff spoke to Mr. Murphy about his grievance; Mr. Murphy told Plaintiff that he could not help him because of company policy.
21. Plaintiff continued to make repeated requests of Mr. Murphy that his grievance be processed because his rights were being violated.
22. In June, 1966, Plaintiff discussed the matter of his seniority grievance with Jack Donnell, an Assistant Grievance Committeeman for an area other than Plaintiff's. In February, 1967, Mr. Donnell attempted to help Plaintiff by showing him a pamphlet concerning the re-employment rights of veterans generally.
23. Plaintiff was unaware of his re-employment rights under Section 459 of the Selective Service Act of 1967 prior to his reading of the pamphlet shown to him by Donnell in February, 1967.
24. In March, April and May of 1967, Mr. Donnell and Plaintiff met with Robert J. Lau, Supervisor of the State of New Jersey Department of Conservation and Economic Development, Division of Veterans Services in Trenton, New Jersey, to discuss Plaintiff's grievance.
25. As a result of these discussions, Plaintiff filled out an OVRR form 100 at Mr. Lau's office in the presence of Mr. Donnell, and forwarded the same to Dow E. Walker, Regional Director of the Veterans Re-employment Bureau, U.S. Department of Labor in New York.
26. On June 22, 1967, William J. George, Field Representative of Dow E. Walker, sent the Corporation a letter apprising it of the existence of Plaintiff's formal grievance in the hands of the Department of Labor and further, sought the Corporation's position regarding Plaintiff's seniority grievance.
27. On July 17, 1967, D. W. Criswell, Staff Supervisor, Employment and Placement, United States Steel Corporation, wrote an explanatory letter to Mr. Robert C. Stevens, Regional Director, U.S. Department of Labor, Office of Veterans Re-employment Rights, responding to Mr. Stevens' letter of July 3, 1967 and Mr. George's letter referred to above.
28. Mr. Criswell's letter stated in short that company policy and the agreement with Local 4889 would not permit a retroactive adjustment of Plaintiff's seniority.
29. Section 15 of an agreement dated September 1, 1965, between the United States Steel Corporation and the United Steelworkers of America required the Corporation to accord to each employee who applies for re-employment after conclusion of his Military Service with the United States, such re-employment rights as he shall be entitled to under then existing statutes.
30. On March 23, 1968, Plaintiff was awarded a promotion to the position of Coil Feeder Helper, Job Class 6, with a job seniority date of March 23, 1968.
31. The Complaint herein was filed April 24, 1969.
By agreement of all parties to this action, the only real issue presented to the Court for determination is whether or not Plaintiff is guilty of laches.
The doctrine of laches is an equitable doctrine based on public policy which requires the discouragement of stale demands. Laches is not a mere lapse of time but is principally a question of the inequity of permitting a claim to be enforced where some change in condition has taken place which would make enforcement of the claim unjust. See Penn Mut. L. Ins. Co. v. Austin, 168 U.S. 685, 42 L. Ed. 626, 18 S. Ct. 223 (1898). A complainant must not delay an unreasonable period of time in enforcing a known right. See Hays v. Seattle, 251 U.S. 233, 64 L. Ed. 243, 40 S. Ct. 125 (1920). The determination of what constitutes an unreasonable delay is one which is necessarily left in the hands of the Court and is based on the facts presented.
The unreasonable delay in asserting a known claim is analogous to a waiver in that both are in a sense relinquishments of known rights, one by commission and the other through omission.
Where laches is asserted as a defense, the Federal Courts will generally look to the analogous state statute of limitations for guidance in determining what is a reasonable period of time in which to process a claim involving a similar issue at law.
"A court of equity is not bound by the statute of limitations, but, in the absence of extraordinary circumstances, it will usually grant or withhold relief in analogy to the statute of limitations relating to actions at law of like character. Under ordinary circumstances, a suit in equity will not be stayed for laches before, and will be stayed after, the time fixed by the analogous statute, but if unusual conditions or extraordinary circumstances make it inequitable to allow the prosecution of a suit after a briefer, or to forbid its maintenance after a longer, period than that fixed by the analogous statute, a court of equity will not be bound by the statute, but will determine the extraordinary case in accordance with the equities which condition it. When a suit is brought within the time fixed by the analogous statute, the burden is on the defendant to show, either from the face of the complaint or by his answer, that extraordinary circumstances exist which require the application of the doctrine of laches. On the other hand, when the suit is brought after the statutory time has elapsed, the burden is on the complainant to aver and prove the circumstances making it inequitable to apply laches to his case." Shell v. Strong, 151 F.2d 909, 911 (10th Cir. 1945). See also, Leonick v. Jones & Laughlin Steel Corp., 258 F.2d 48 (2d Cir. 1958).
Some confusion has arisen in the cases dealing with returning veterans as to what analogous cause of action at law is created under the federal statute. Congressional intent is likewise unclear because no reference is made in the legislative history or in the statute itself regarding the length of time in which a veteran must assert his rights under the statute.
The Second Circuit in Leonick v. Jones & Laughlin Steel Corp., supra, affirmed the District Court's granting of Summary Judgment on the ground that plaintiff was barred by the analogous statute of limitations. The District Court correctly applied a six year period of limitation in "an action to recover upon a liability created by statute, except a penalty or forfeiture," because the rights of the returning veteran are created by statute. However, in Blair v. Page Aircraft Maintenance, Inc., 467 F.2d 815 (5th Cir. 1972), the Fifth Circuit characterized the statutory right to re-employment as being tortious in nature and applied a one year period of limitation which barred plaintiff's claim for lost wages under the Act.
This Court is of the opinion that if the doctrine of laches or a statute of limitations applies at all, the rights of the returning veteran are contractual in nature and that the federal statute creating the right to re-employment is a part of the veteran's employment contract with his employer.
Employment rights and seniority rights arise out of contract and not tort. The Supreme Court of Pennsylvania in Madera v. Monongahela Railway Co. et al., 356 Pa. 460, 52 A.2d 329 (1947) adopted the conclusions of the trial court with respect to the analogous statute of limitations applied to the employment issue involved therein:
". . . As seniority rights arise only out of contract, it is appropriate that the statute of limitations should be applied by way of analogy to actions at law: . . . " (citations omitted). Madera v. Monongahela Railway Co. et al., 356 Pa. 460, 464, 52 A.2d 329 (1947).