Citations
- 76 F. Supp. 304
Full opinion text
HARRY E. WATKINS, District Judge.
Does an employee who has been classified and deferred by his draft board as an essential civilian employee at his employer’s request, but who resigns from employment in order to volunteer for induction into the armed services, forfeit his statutory right to be restored, on the satisfactory completion of his military service, to the position from which he resigned, or to one of like seniority, status and pay? Petitioner asks that this question be answered in the affirmative. The respondent says that it should be answered in the negative.
There is no dispute as to the facts. The material facts, briefly stated, are as follows: Petitioner entered the service of respondent railway company in 1936 as a laborer. He was promoted from time to time until 1942 when he was made a first-class, painter. As of December, 1943, he was married, with three minor dependent children. At the request of respondent, and over his own protest, he was deferred by his local draft board as an employee essential to railroad operations. He attempted to enlist in the military forces, but was told that he could not 'be accepted unless he was released from deferred status by respondent. Following its general policy in such matters, respondent refused to release him from deferred status, whereupon he wrote respondent as follows : “Effective Saturday April 8, 1944, I am resigning from the system paint forces. I have tried to get' released from the Railway Co. in order to join the military forces, but I find I cannot get released, so I am resigning in order to join.” Five days later, (April 15, 1944) he entered the United States Navy as a volunteer inductee. He was honorably discharged on October 19, 1945, and six days later made application to respondent for'reemployment in the position from which he' resigned, or to one of like seniority, status and pay, which request was .refused. Respondent offered to employ petitioner as a painter helper with less pay than a first-class painter and with seniority from date of reemployment, which petitioner declined to accept. Petitioner pursued no gainful employment until April 1, 1946 when he accepted employment with a grocery store. On August 15, 1946, counsel for respondent received a letter from the United States Attorney stating that petitioner had applied to that office for aid in securing reinstatement with the railway company, and asking what the position of the railway company would be in the matter. In December, 1946, the railway company replied, and furnished the information requested. On February 13, 1947, this action was instituted under Section 8(e) of the Selective Training and Service Act of 1940, as amended, hereinafter called the Act, 54 Stat. 890, 50 U.S.C.A.Appendix, § 308(e), to compel the respondent to reemploy petitioner in his position as first-class painter, and for damages arising out of respondent’s failure to reemploy him. The relevant provisions of the Act are as follows :
“8(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 * , *
“(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay * * ^ )t
Respondent does not" question the fact that petitioner resigned his position with intent to join the military forces. Indeed there could be no other conclusion. The agreed statement of facts shows that when petitioner learned that respondent sought his deferment on occupational grounds¡ he •wrote his local draft board stating that he did not wish to be deferred. When placed in a deferred classification he attempted to enlist in the military forces, but was told that he could not be accepted unless he was released from his deferred status by respondent. When respondent refused to do this, he resigned his position. His letter makes it crystal clear that his resignation was for only one purpose — to join our military forces in the pending emergency. He had learned that in no other manner could he secure immediate induction. Five days after his resignation he was in the Navy.
Respondent says that when he resigned,