The opinion of the court was delivered by: WEINER
Presently before the Court for our decision are cross-motions for summary judgment filed by plaintiff Robert L. Gruca and defendant United States Steel Corporation. Plaintiff has asked us to restore him in his employment to a position of seniority, status, and pay to which he is entitled in accordance with the provisions of the Military Selective Service Act of 1967, 50 U.S.C. App. § 459 et seq.,
which, in essence, require a private employer to rehire an honorably discharged veteran who had left a permanent position to enter military service and to restore that veteran "to such position or to a position of like seniority, status, and pay" as he held when he left to enter the service. 50 U.S.C. App. § 459(b) (B) (i). Specifically, Gruca seeks to compel the defendant to grant him a position and seniority adjustment which would put him ahead of those employees who were junior to him prior to his departure for military service but who were promoted in the applicable promotional sequence during his absence. He asks now to be paid lost wages for that 10 year period and to be placed in a seniority position superior to that of four employees who have held senior positions to him during that entire period.
Defendant United States Steel contends, to the contrary that plaintiff is barred from now recovering the relief which he seeks by the doctrine of laches and the Statute of Limitations as a result of the delay of almost 10 years in the filing of the instant suit.
Upon his return from military service, plaintiff was rehired by the defendant on January 18, 1963 in the same job classification which he had occupied on December 8, 1960, that of General Laborer, Job Class 2, in the Open Hearth Department. However, plaintiff returned to an employment status better than that which he had left in that he was accorded seniority for the time he was in the service, as if he had been working at United States Steel during this period of time. Workers in the plaintiff's category are temporarily assigned to higher rated and higher paid jobs in various promotional sequences according to their Department Date, which in plaintiff's case is September 30, 1958. Due to the fact that upon his return to work, plaintiff retained his Department Date of September 30, 1958, he held priority for such assignments over other General Laborers who had Department Dates later than his but who, in fact, had actually worked longer in the Open Hearth Department than did plaintiff.
A slight digression will be helpful at this point in order to clarify the general method of promotion which is employed by United States Steel pursuant to the Collective Bargaining Agreements between that Corporation and the defendant United Steelworkers of America.
Persons in the General Laborer category of which Gruca was a member prior to and upon his return from military service, are essentially unskilled laborers. From the position of General Laborer, Job Class 2, an employee has a choice of numerous promotional sequences to follow in moving to more skilled and higher paid positions. The choice of which promotional ladder to follow is an essential career decision because, once in the promotional ladder, there is a very limited opportunity to transfer to another ladder. The choice as to which ladder to follow is based on personal preferences, and in some instances, the speed with which a given employee can move up in any given ladder. The speed of that advancement is often dependent upon the competition for a particular promotional position.
One of the promotional sequences available to employees is "Seniority Unit No. 8 -- Cranes". An employee wishing to enter that sequence signs up for special training in crane operation when the corporation advertises the need for additional cranemen. Upon satisfactorily passing a test in the operation of the Stockyard Crane, that employee is assigned to a special category called "Crane Extra Board." (G.A. para. 11).
While on Crane Extra Board, an employee is still classified as a General Laborer and receives a General Laborer's pay. However, a Crane Extra Board craneman will, from time to time, be called upon to operate a crane when permanent crane operators are temporarily absent. During these times, he makes the higher pay of a Stockyard Crane Operator. (G.A. para. 13).
Obtaining Crane Extra Board status is a necessary requirement for a General Laborer who wishes to become a Stockyard Crane Operator. (G.A. para. 12). When permanent vacancies in the position of Stockyard Crane Operator become available, employees on Crane Extra Board move up, if they bid for the opening, and where the factor of physical fitness is relatively equal on the basis of 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.
"(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 ...