APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (District Court Civil Action No. 72-1610)
Aldisert, Gibbons and Rosenn, Circuit Judges.
The question raised by this appeal is whether a veteran's claim for legal and equitable relief under the Military Selective Service Act of 1967, 50 App. U.S.C. § 459,*fn1 is barred by laches or the Pennsylvania six year statute of limitations*fn2 because the veteran failed to commence his action until at least nine years had elapsed from the date his cause of action accrued. The district court viewed the claim as equitable in nature and held that the doctrine of laches governed plaintiff's demands for adjustment in job seniority dates and back pay. It concluded that plaintiff's claim was not barred by laches, granted plaintiff's motion for summary judgment, awarded damages in the amount of $4,937.66 and ordered the defendant to amend plaintiff's job service dates.*fn3 The employer has appealed. We reverse.
The material facts are not in dispute. The United States Steel Corporation employed Gruca as a general laborer in its Open Hearth Department at its Fairless Works beginning September 30, 1958. This became Gruca's Department Date for seniority purposes. Plaintiff worked continuously in that position until he left on December 8, 1960, to enter the military service. He was honorably discharged from the United States Army on December 14, 1962, returned to Pennsylvania and was reemployed by U.S. Steel on January 18, 1963. He was assigned his previous job classification of general laborer, and retained his original Department Date of September 30, 1958.
From the position of general laborer a U.S. Steel employee has the choice of following several promotional ladders. One of these ladders is Seniority Unit No. 8 - - Cranes. To reach the rung of craneman a general laborer must first obtain Crane Extra Board Status. This is achieved by receiving special training in crane operation and passing a test. Once an employee obtains Crane Extra Board status he is assigned a Crane Extra Board Date, which is essentially a seniority date. Therefore, employees on Crane Extra Board climb to the position of Stockyard Crane Operator, if they bid for the opening, on the basis of the earliest Crane Extra Board Date and if the physical fitness factor is relatively equal.
While Gruca was on active duty, U.S. Steel had, from time to time, advertised openings for crane operators. Four employees responded, each having Open Hearth Department Dates later than plaintiff's. They completed their training, passed the test and were assigned to the Crane Extra Board. Therefore, because of plaintiff's absence from his civilian occupation due to military obligations, employees junior to him had the chance to, and did, hold positions superior to him.
Shortly after his reemployment,*fn4 plaintiff learned of his plight and took the matter up with his union grievance committeeman. Specifically, he asked "whether something could be. . .done about the men moving ahead of. . .[him] to Crane Extra Board." The union representatives knew that it was company policy that "a returning veteran did not have a statutory right to any promotion for which he might have been entitled to apply had he been employed at the time that the promotion became available." Therefore, plaintiff was told that he "was only guaranteed that he would get his old job back." Because plaintiff thought "it would be useless to try to grieve this matter" and "it would do no good" he neither submitted a grievance nor complaint to management.
However, Gruca remained undaunted in his career aspirations. He later signed up for training in crane operation, passed his test and was assigned a Crane Extra Board date of March 28, 1963. But, because Gruca's board date was later than the other four employees, he was not awarded the position of Stockyard Craneman until March 8, 1969.
Plaintiff did nothing to pursue his veteran's rights until, in April, 1969, he again requested the union to process a grievance on his old claim. This request came approximately seven months after Judge Sorg's decision in Foremsky v. United States Steel Corporation, 297 F. Supp. 1094 (W.D. Pa. 1968), which held that a returning veteran is entitled to enjoy the seniority status which he would have acquired by virtue of continued employment but for his absence in the military service if, as a matter of foresight, it was reasonably certain that advancement would have occurred, and if, as a matter of hindsight, it did in fact occur. The union denied his grievance request and advised him to seek assistance from the United States Department of Labor, which he did on April 18, 1969. Finally, on August 15, 1972, more than nine years after his being rehired, and three years after he applied to the Department of Labor, plaintiff commenced this action.
Defendant does not deny that Gruca was wrongfully denied his seniority status upon his return from the military.*fn5 In fact, the defendant has applied the Foremsky rationale on a prospective basis. But, because of "extraordinary" practical problems, U.S. Steel "felt that it would be impossible to grant retroactive promotions to veterans reemployed prior to the judgment in Foremsky who, like the plaintiff in this case, had not presented their claims promptly after reemployment or pursued them effectively ...