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July 17, 1980


The opinion of the court was delivered by: VANARTSDALEN


The present cross motions for summary judgment require a determination of the applicability of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. § 2011 et seq. (Vietnam Veterans Act), to the millwright apprentice program of the United States Steel Corporation (U.S. Steel). Defendant's motion for summary judgment will be denied. Plaintiff's motion for summary judgment on the issue of liability will be granted.

 U.S. Steel maintains an apprentice program whereby laborers may become millwrights. The program consists of classroom and on-the-job training in nine basic categories, each of which has an assigned number of credit hours toward the required total of 7,280 hours. Each category requires passing a test. The test may be taken after some minimum number of hours training, and if the test is passed, the apprentice is given credit for the total number of credit hours assigned to that category. If an apprentice fails a test, he may remain in the program, but will receive no additional credit hours toward the total of 7,280 for any training required in excess of the assigned number of credit hours for that category.

 During any period in which an apprentice millwright would otherwise be laid off, he may elect to continue in the program in a "lay-off training status," provided he has successfully completed 25% of the required 7,280 credit hours. A lay-off training status permits the apprentice to continue both classroom and on-the-job training, but his pay consists of that which he would receive by way of unemployment compensation and supplemental unemployment benefits (SUB) if he were in fact laid off.

 Plaintiff was recalled as a laborer on September 22, 1975, again laid-off on October 3, 1975, and finally recalled on October 27, 1975. He was able to return to the apprentice program on July 26, 1976 *fn1" and has since successfully completed the program and become a millwright.

 Plaintiff does not seek credit for any apprentice hours lost during his period of active duty against the required 7,280 credit hours. He seeks recognition of his right, as of the date he was originally laid off on February 15, 1975, to have elected to continue in the apprentice millwright program from February 15, 1975 until July 26, 1976 (when he was able to return to the program). Plaintiff contends that he was improperly denied the wages of a millwright, which are substantially higher than those of a laborer, during the approximately 17 months' hiatus in his training program, brought about by his two weeks active summer military duty. *fn2"

 Defendant's position is that successful completion of the apprentice program depends upon work performance and test results, and is not dependent on seniority or merely length of service. It is plain, however, that had plaintiff not been called to active duty, he would not have been laid off and he would have become a millwright about 17 months earlier than he actually did.

 The Vietnam Veterans Act requires that upon return from active military duty, an employee such as plaintiff be restored to his former employment with such seniority, status, pay and vacation as he would have had if he had not been on active duty. 38 U.S.C. § 2024(d). This Act is substantially a reenactment of legislation that has been in effect since 1940. See Selective Training and Service Act of 1940, ch. 720, § 8(b), 54 Stat. 885, 890 (later reenacted as the Military Selective Service Act of 1967, 50 U.S.C.App. § 459, and subsequently recodified as 38 U.S.C. § 2021 et seq.) Thus, cases decided under such predecessor statutes are instructive.

 Tilton v. Missouri Pacific R.R. Co., 376 U.S. 169, 84 S. Ct. 595, 11 L. Ed. 2d 590 (1964), involved seniority rights, but is analogous to the present case. The principle established in Tilton is that a veteran whose completion of a prerequisite for a job classification is delayed by military service, obtains seniority upon completion of such prerequisite, retroactively to the time he would have completed the prerequisite but for the interruption by military service. In Tilton, carman helpers, selected by joint representatives of the union and railroad were "upgraded" in duties and pay, but did not acquire seniority as mechanics until they had completed 1040 days of actual work as carman mechanics in such "upgraded" status. Petitioners had been selected and commenced work as "upgraded" carmen doing carman mechanics' work when they were called to active duty. Upon return from military service, they completed the prerequisite 1040 days of work in such upgraded status. They were granted seniority as of the date of completion of the 1040 days' work. The Supreme Court held that their seniority date should be retroactively established as of the time that, had it not been for military service, they would have completed the 1040 days' work.

 Id. at 181, 84 S. Ct. at 602.

 In Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 284-285, 66 S. Ct. 1105, 1110, 90 L. Ed. 1230 (1946), the Supreme Court held that the returning veteran "does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war."

 If a promotion depends on the mere passage of time, it is a seniority right, to which a returning veteran is entitled. Tilton v. Missouri Pacific R.R. Co., supra, Cohn v. Union Pacific R.R. Co., 427 F. Supp. 717 (D.Neb.1977), aff'd, 572 F.2d 650 (8th Cir.), cert. denied, 439 U.S. 836, 99 S. Ct. 120, 58 L. Ed. 2d 132 (1978); Beard v. Norfolk and Western R.R. Co., 484 F. Supp. 758 (W.D.Va.1980). However, if the promotion depends on the exercise of discretion on the part of the employer rather than mere passage of time, ...

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