the earliest Crane Extra Board Date. (G.A. para. 12).
Returning to the particular facts before us concerning plaintiff Gruca, it appears from the plaintiff's affidavit that, during the time that he was in military service four employees, Shupe, Menhart, Krusek, and Matejik, who had come into the Open Hearth Department after Gruca, signed up for training in Crane Operation and were assigned to the Crane Extra Board. Defendant United States Steel concedes that, had the plaintiff not entered the service, had he continued to be employed, had he been physically fit, and had no one senior to him apply for the Crane Extra Board, and had he himself applied, he would have been entitled to take the training in Crane Operation before these four men by virtue of his earlier Department Date.
Shortly after returning to United States Steel, Gruca signed up for training in Crane Operation, passed his test, and joined the Crane Extra Board on March 28, 1963. That date became his "Crane Extra Board" Date. (G.A. para. 16).
On May 1, 1963, United States Steel posted for bid a permanent vacancy for Stockyard Cranemen. Plaintiff applied for this position on May 6, 1963. The position was awarded to Mr. Shupe on May 22, 1963 on the basis of his earlier Crane Extra Board Date. (G.A. para. 17). On December 11, 1963 United States Steel posted notice of two other vacancies for Stockyard Cranemen, plaintiff Gruca bid for these positions but the positions were awarded to Krusek and Menhart, again on the basis of their earlier Crane Extra Board Dates.
In February of 1969, two further vacancies were posted, plaintiff bid for the positions, and both he and Mr. Matejik were awarded the promotions. Plaintiff's Stockyard Crane Date became March 8, 1969. (G.A. paras. 17, 18, 19).
In light of the particular facts of this case, the complaint of the plaintiff may be stated in specific terms. Gruca contends that when he passed the Crane Operation test on March 28, 1963 he should have been given a retroactive Crane Extra Board Date of January 8, 1962, the day before Shupe's Crane Extra Board Date, instead of March 28, 1963 date which he was given. Had this been done, Gruca would have been promoted to Stockyard Craneman in place of Shupe, due to his Department seniority over Shupe, on May 22, 1963 instead of on March 8, 1969. He asks now that he be given Shupe's job and that the intervening employees be bumped back a step on the seniority roster.
One additional factor is of utmost importance to our determination in this case. In February of 1963, Gruca, upon learning that Shupe, Krusek, Menhart, and Matejik held superior positions to him on the Crane Extra Board, spoke with a Union Grievance Committeeman in order to determine whether he could have his full seniority restored. Plaintiff was told, according to his affidavit, that a veteran was entitled only to get his old job back. As a result, he believed that the filing of a complaint with management or the submission of a grievance would be a futile gesture, and no such action was taken. (G.A. para. 37). In April of 1969, Gruca did request Union officials to process a grievance on his behalf and was then advised to seek the assistance of the United States Department of Labor. (G.A. para. 39.) The instant suit was not filed until August 15, 1972.
Section 9 of the Military Selective Service Act of 1967, 50 U.S.C. App. § 459, on which plaintiff's claim is premised, reads in relevant part, as follows:
"(a) Any person inducted into the armed forces under this title . . . for training and service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service under section 4(b) . . . shall be entitled to a certificate to that effect upon completion of such period of training and service . . . .
"(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position (other than a temporary position) in the employ of any employer who (1) receives such certificate, and (2) make application for reemployment within ninety days after he is relieved from such training and service or from hospitalization, continuing after discharge for a period of one year --