Tilton v. Missouri Pacific Railroad Company

PETITIONER:Tilton
RESPONDENT:Missouri Pacific Railroad Company
LOCATION:New York Times Office

DOCKET NO.: 49
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 376 US 169 (1964)
ARGUED: Jan 07, 1964
DECIDED: Feb 17, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – January 07, 1964 in Tilton v. Missouri Pacific Railroad Company

Earl Warren:

Number 49, Donald I. Tilton et al., Petitioners, versus Missouri Pacific Railroad Company.

(Inaudible)

Mr. Heymann

Philip B. Heymann:

Mr. Chief Justice and may it please the Court.

This case arises under Section 9 of the Universal Military Training and Service Act of 1948.

That Section and its predecessor provisions which go back constant — continually to 1940 draft act give veterans certain reemployment rights on their return from military service.

Stating the facts of the case requires making clear the relationship between three of the many categories of employees in the railroads, maintenance and repair shops.

The first category is that of carman.

Carman does the most skilled work of the three.

Gets paid the highest pay and has its own seniority roster.

The second category is that of carman helper that does less skilled work, gets paid on a lower scale and has — the carman helpers have their own seniority roster.

The third category is something of a hybrid between the two.

Because of shortages among carmen, sometimes helpers are upgraded to do carman’s work.

An upgraded carman helper does carman’s work, gets paid a carman’s wage but doesn’t obtain carman’s seniority until he’s worked 1040 days, “a 1040-day training period as an upgraded carman helper.”

In the meantime, he retains his seniority as a helper and he also obtains something very much like seniority as an upgraded helper.

He gets a date when he’s upgraded and that date determines his right to demand work as a carman, work towards 1040 days.

In terms of these three categories, the facts of the case can be simply stated.

Tilton, Beck and McClearn were already upgraded helpers when they went into the military service.

The only discretion that management has had been exercised at that point in their — where there is apparently discretion in upgrading but they’d already been upgraded.

During the time they were in military service, they were passed in the number of days work towards 1040-day requirement by a number of junior upgraded helpers who would’ve had a subordinate right to work had these veterans been present.

Potter Stewart:

Going back just a moment, I just don’t quite —

Philip B. Heymann:

Yes, Justice Stewart —

Potter Stewart:

— understand what determines whether a helper is to become an upgraded helper.

Philip B. Heymann:

The — the record indicates – there was a lot of argument, Justice Stewart in the record about whether upgrading is automatic.

I have no idea why there was that argument.

There is —

Potter Stewart:

Was it not really an issue here?

Philip B. Heymann:

I don’t think it’s an issue at all.

Potter Stewart:

These people all were upgraded.

Philip B. Heymann:

They were all upgraded when they went and this is also true in the next — well, in the next case as an apprentice.

Potter Stewart:

But you’re —

Philip B. Heymann:

I don’t think it’s an issue at all.

Potter Stewart:

But you’re assuming that there maybe or was some discretion, management discretion in determining whether or not a helper, these helpers should become upgraded helper but in any —

Philip B. Heymann:

From —

Potter Stewart:

— event that was water over the bridge.

Is that it?

Philip B. Heymann:

Exactly, exactly.

The purpose of this case we can concede there was discretion at that stage.

Potter Stewart:

Under the bridge or over the dam.

Philip B. Heymann:

But — when — because they were passed by when they return and completed their 1040 days of work, they found that formerly junior upgraded helpers already had carman status and seniority.

They asked to have their seniority dates set back so that they would maintain the same relative seniority position with regard to these people that they had had when they were — when they had gone into the military service, at the time when they were all upgraded helpers.

The employer refused.

The suit resulted.

The District Court held for the employer and the Court of Appeals affirmed saying in substance that the veteran can only claim on his return what would’ve been his absolutely, certainly and forseeably at the time he left.

As it were the employees to be — the veterans to be treated as if he had been on leave of absence and accrued only those rights which are near functions of lapse of time.

I’d like to begin my argument by stating what we conceived to be the issue of the case.

One of the central functions of Section 9, perhaps the central function is to grant to veterans, as a matter of statutory right, those benefits of seniority in position that would’ve come to them as a matter of contract right had they not been away in military service.

In the words of this Court, in the words of Section 9 (c) (2), had they been continuously employed and I — I now use those words in quote so I don’t mean to say anything by them, had they not been away.

Perhaps the most important of these benefits of seniority in position is the relative seniority position of the veteran.

The importance of this benefit of course flows from a large number of other rights that are a function of relative seniority position.

Security on the jobs, security against layoffs, preferences in work, vacation times, each of these is a function of seniority.

The issue in this case is whether the veteran is entitled to be protected in his relative seniority position not only in the position he left but also in the position to which he and his fellow employees have advanced and been able to claim as a matter of right on completion of a 1040-day work period.

Our contention is very simply that the seniority these veterans claim would’ve been theirs a matter of contract right had they have been continuously employed in a sense of continuously present and on the job whenever they would’ve had a right to work.

The Eighth Circuit agreed that they would’ve had a right to a seniority position they claim had they have been continuously present and on the job whenever they had a right to work.

But the Eighth Circuit said that when this Court has said, “continuously employed” or when we’re trying to figure out where the veteran would’ve been — had he not been absent in military service, he’s not entitled to be treated as if he had been at work whenever he had a right to work.

He should be treated as if he had been on leave of absence.

Now, that that frame is the issue as we see it, does continuously employed means continuously on leave of absence, or continuously at work when the veteran had a right to work.

Arthur J. Goldberg:

(Inaudible)

Philip B. Heymann:

Yes, Justice Goldberg.

Arthur J. Goldberg:

Assuming the — that was referred to (Inaudible)

Philip B. Heymann:

The record indicates that this has never happened without the employee’s — without the employee’s agreement in the history — in the — in the memory of anyone that was present.

But I — I would again be prepared to concede that if his performance were inadequate, he could’ve been relieved from his job of upgraded helper.

They’re seen — this is a right but you don’t easily imply away.

Arthur J. Goldberg:

(Inaudible)

Philip B. Heymann:

Adequate — adequate performance Justice Goldberg, we would insist, is always a condition of a — of continuing seniority in the simplest case.

In the case where the veteran has gone and returned at the same position, he wouldn’t have had — he wouldn’t have increased seniority in that position unless he had adequately performed there.

Now, on the issue of whether the —

Earl Warren:

(Inaudible)

Philip B. Heymann:

In the Brooks — the Brooks case which is the next case Mr. Chief Justice is an apprenticeship and I will argue in that case with the exact same rule applies that there’s no difference between the cases.

(Inaudible)

Potter Stewart:

Well, the statute does there say and maybe I’ve missed a part of your argument that he shall be considered as having been on leave of absence.

Philip B. Heymann:

No.

Potter Stewart:

And it also says somewhere else that he should be considered as having been employed continuously, doesn’t it?

It says in 9 (c) (1) that he should be treated as if he had been on leave of absences or furlough.

Right.

Philip B. Heymann:

Says in 9 (c) — that was at — that was in 1940 in 9 (c) (2), provision was added that was — which at — in 1948, a provision was added as 9 (c) (2) which says, “Give him the status he would have had had he been continuously employed.”

Potter Stewart:

And they’re both in the statute?

Philip B. Heymann:

Well, 9 (c) (2) is declared to be the sense of Congress.

I think Justice Burton once said, “How Congress believes 9 (c) (1) should be interpreted.” 9 (c) (1) is a statutory provision in itself.

Potter Stewart:

But if — if — if these people had been on leave of absence, the company would be correct in its position.

Philip B. Heymann:

That’s — there’s no doubt about that but I don’t —

Potter Stewart:

And if they have been continuously employed —

Philip B. Heymann:

We would be —

Potter Stewart:

— I think this whole one side, any question of management discretion, you’d be right in your position.

Philip B. Heymann:

We would be right.

I don’t think —

Potter Stewart:

The statute says both.

Philip B. Heymann:

I don’t think there is — that — that’s right, Your Honor.

There’s no question in this case — I don’t believe, of management discretion.

There’s no place at all where management discretion comes into this case.

Philip B. Heymann:

The question is whether the infirmities of what — of being a human being which can interfere with work when a man has a right to work, prevent him from maintaining his relative position.

But I’d like to go to furlough and leave of absence, if — if I may.

I was going to go on to say that the heart of our case is that the Tilton case is almost a mirror copy of a case decided by this — by this Court in favor of the veteran after full briefing and oral argument in 1955, Diehl versus Lehigh Valley Railroad.

Now, that’s a square precedent as — as one can have.

In Diehl, like as here — oh, let me take — let me use the name Diehl.Diehl like Tilton was an upgraded carman helper when he went into military service.

Diehl like Tilton apparently had rights — had prior rights to work when work — when carman’s work was available over those who had been upgraded after him.

He was passed because of his service time.

On his return, the employer and the union entered into a collective bargaining agreement saying that upgraded helpers should be given carman’s status and seniority after 1160 days of work instead of 1040 days.

Diehl claimed that his date should be set back to preserve his relative position.

He should be given the position he would’ve — he had when he left.

The Third Circuit — the employer refused, the District Court agreed with the employer in grounds very much like those in the Eighth Circuit opinion here.

The Third Circuit affirmed saying, in a way that reflects Justice Stewart’s question, the Third Circuit said, “If this man is entitled to be treated as if he were continuously employed” and the Third Circuit said, “That’s the language the Supreme Court has used in Oakley,” that was one of the leading preceding cases.

If he’s entitled to be treated as continuously employed in the language that Congress used in 9 (c) (2) then Diehl was entitled to be given credit, given the seniority position he claims because he would have had it if he was continuously employed.

However, we believe the leave of absence in furlough language controls.

There was full argument and full briefing in this Court of Appeals — this Court reversed per curiam citing Oakley where the Court had said that the veteran should be treated as if he’d been continuously employed.

Now, we know of no distinction between the Diehl case and this case.

The respondents have suggested that maybe this Court thought in Diehl that the 1160-day period wasn’t actually a work period but that’s simply impossible in the facts.

The Court of Appeals had called it an experience period repeatedly.

In there briefs in this Court, the parties made absolutely clear that the 1160-day period was a required work period.

The Eighth Circuit suggest that Diehl maybe different because there was a stipulation upon what date Diehl would’ve completed his work.

One answer to this is I think, the Eighth Circuit was misled in thinking there was — unintentionally misled in thinking there was a stipulation, there wasn’t stipulation.

The facts were that Diehl had alleged that he would complete his work on a certain date and his complaint was dismissed and for purposes of the complaint it was taken as true.

But this was by no means equivalent to taking as true what was palpably and always will be untrue and that is that there are — that there were no contingencies that could interfere with Diehl’s completion of his work period.

Obviously, sickness and even number of things could.

Now, since we believe that the Diehl case is this case, the only question is whether the — this Court’s only case since Diehl, the McKinney case overruled Diehl.

I — I would be inclined to think that that was at the heart of the Eighth Circuit’s opinion.

The Eighth Circuit wasn’t really trying to say that Diehl was different.

It ended up saying if — how Diehl and McKinney are irreconcilable, it’s up to the Supreme Court to say so and not us.

But McKinney didn’t have anything to do with what is continuous employment.

McKinney was concerned with the very different issue, whether the veteran is entitled to claim as a matter of statutory right.

Philip B. Heymann:

Everything that he would — the he probably would’ve obtained had he been “continuously employed.”

And here I can just put those words continuously employed in quotes.

McKinney doesn’t talk about what continuously employed means even though some of these benefits that he probably would’ve obtained would’ve been in the discretion of the employer.

Or, was the veteran only entitled to what he could have claimed as a matter of right under the collective bargaining agreement or customs of the parties, had he been continuously employed.

This was the position of the parties.

The McKinney facts indicated that the employer’s discretion was required for a promotion that McKinney was asking that McKinney was asking for.

The Government argued in behalf of McKinney that he probably would’ve gotten the promotion in the employer’s discretion.

The railroad responded, “He can only claim it if it could’ve had it as a matter of right had he been continuously employed.”

It distinguish Diehl saying that the Diehl was entirely consistent with their — with their position in McKinney.

Diehl, the railroad said was entitled to the seniority he claimed as a matter of right had he been continuously employed.

McKinney wouldn’t have had any right to the promotion he claimed even if he had been continuously employed.

This Court adopted the railroad’s position in McKinney.

Oh, that’s right, the railroad’s position in McKinney.

It said that the veteran can only claim what have — what have been his as a matter of right, had he been continuously employed.

It continued to use the very language of continuous employment that this Court had used in Oakley which had been interpreted in Diehl to mean continuous — continuous presence on the job whenever the veteran would’ve had a right to work and it stated and which was now incorporated in 9 (c) (2).

There is absolutely no indication that intended to overrule Diehl.

Diehl, I should point out was not even mentioned in McKinney.

It’s not even cited.

I should — I’d only like to add that I think that the result we contend for in this case is almost dictated by the McKinney decision itself.

McKinney had an alternative claim that he would’ve been entitled to his promotion as a matter of right had he been continuously present on the job.

This, he said was the actual way that collective bargaining agreement had been interpreted by the parties.

The Court agreed that if he was entitled to his promotion as a matter of right and not discretion, he should get it and remand it to allow him to try to prove that’s what the collective bargaining agreement meant.

Well, what our veterans are claiming in this case is the improvement in status that would’ve cont — that they had a right to claim had they been continuously employed.

Their status as upgraded helpers improves everyday they work.

They move towards carman everyday they work.

They had contract rights to work ahead of those junior to them exactly the same as McKinney’s claim, contract right to be promoted ahead of those junior to him.

And we’re just claiming that they should be given the benefits of those rights.

I would like to reserve whatever the time I have Mr. Chief Justice.

Earl Warren:

Mr. Yost.

Robert W. Yost:

Mr. Chief Justice and may it please the Court.

Robert W. Yost:

I want to compliment Mr. Heymann on a very fair presentation of the facts and the issues in this case.

And I’ll try to avoid repeating too much but I think it is essential to have a clear understanding of the facts in the case and what the court below found.

In the first place, there were these two entirely distinct classifications of work under the collective bargain agreement.

One was the carman helper and the other was the carman.

Now these veterans were classified before they went into military service, after they went in the — after they came back from military service as carman helpers.

They were not classified as carmen.

These two classes of work had different job descriptions which were provided in the collective bargaining agreement.

The carman helper was confined to doing the unskilled tasks involving repair of cars and the carman was a skilled craftsman who had all the responsibilities such as the master carpenter has in building a house.

The carman helper never had the right to do the carman’s work and the carman never had the right to do the carman helper’s work.

These were entirely different categories.

There were separate seniority as providers.

The carman helper was on one list and the carmen journeymen were on entirely separate list.

These veterans then had no seniority whatever as carmen when they went into military service.

They had no way, there was no possible way under the contract for them to do carmen’s work or to transfer to a carman’s seniority escalator except under the provisions of the specific agreement that was adopted in December 1953 between the collective bargaining agent and the railroad.

And that is what I want to get into primarily.

I’d like to mention before that that this — this Court has recognized that seniority is not inherent in the job.

It is a matter of contract.

Seniority grows out of contract and contract alone.

I might quote this one statement in the case of Aeronautical Lodge against Campbell.

“Barring legislation not here involved, seniority rights derive their scope and their significance from union contracts, confined as they are almost exclusively to unionized industry.”

Now, what was the contract of 1953?

First of all, it said when the qualified carmen were not available, then, the railroad could utilize the services of the helper to do the carmen’s work.

It was only when these qualified carmen were not available that these helpers could work as carmen.

And that vary with conditions, jobs maybe cut off and there would be ample carmen available or jobs might be added to the situation at a particular point and there would be fewer carmen and therefore more helpers would be able to do the carmen’s work.

It provided also that if they were selected to do the carmen’s work, and incidentally, an answer to your question Mr. Justice Goldberg, they were selected on a basis that they have the aptitude and were willing to take over the job, they were not considered qualified at all as carmen when they started out.

They were just like beginning apprentices who were beginning their apprenticeship.

It provided that if they were selected to do this carman’s work, they would retain their helper’s seniority.

They did not go over on the carmen help — on the carmen’s seniority list and they were not considered qualified carmen at that time.

Having retained their helper’s seniority, they could exercise it at anytime they chose to exercise it.

In other words, they didn’t have to take this carman’s work that became available to them.

Robert W. Yost:

They could go back to working as a helper and many times they did that very thing because they might have a better hour, you see they were higher up on the carman helpers list.

They were at the very bottom of the — of the working group of carman.

They could only take the worst positions as carmen and so they might have better hours, they might even work more overtime so that they would earn more pay as helpers and sometimes they did exercise their helper seniority in preference to doing the carman’s work.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

That’s correct.

The term “upgraded” meant that he was selected to do the carman’s work when qualified carmen were not available to do it.

Arthur J. Goldberg:

And there’s no argument (Inaudible)

Robert W. Yost:

They were upgraded —

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

— before they went into military service.

However, it — it — this is not significant but it been only short time.

I mean, one of them had been working for 21 days for example before he went into military service.

Byron R. White:

(Inaudible)

Robert W. Yost:

In a sense, the contract that — that’s what I want to get into immediately.

The — the contract specified that before a man could be considered a qualified carman and acquire carman seniority, he had to have this actual work experience of 1040 days.

So in a sense it was a training period such as an apprenticeship.

However, there was —

Byron R. White:

(Inaudible)the contract with the employer not to call a particular man during his training period if there was work available, and they have to call him.

Robert W. Yost:

During this training period —

Byron R. White:

What could be upgraded —

Robert W. Yost:

During —

Byron R. White:

— to any — any way of determining the up — upgrading?

Robert W. Yost:

If the man proved inept at the work, he could be demoted and — and put back to working as a carman helper, certainly.

That’s — that’s true in any employment contract I think.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

Work in a carman’s position, yes sir.

Arthur J. Goldberg:

(Inaudible)– as a carman helper.

Robert W. Yost:

That’s right.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

And — and — and I want you to bear in mind also that the 1040 days is not a four-year calendar period of any kind.

Robert W. Yost:

A record was kept by the railroad of every single working day that the man worked in a carman’s position and when it — it accumulated to 1040 days whether that be done in four years or whether it be done in 10 years or — or whenever.

Then he was notified that he had accumulated the 1040 days.

Until then, he was not considered a qualified carman and had no contractual right to a carman’s seniority.

(Inaudible)

Robert W. Yost:

At the end of the 1040 days, he had the right to choose between the helper’s seniority and the carman’s seniority.

(Inaudible)

Robert W. Yost:

If he wanted to, he could be a carman at that point provided he gave up this helpers — he — he had no right to keep both the helper seniority and acquire the carman seniority.

(Inaudible)

Robert W. Yost:

Of work experience in carman’s positions.

Byron R. White:

Satisfactory work (Inaudible)

Robert W. Yost:

It didn’t specify satisfactory.

That was certainly implied.

Byron R. White:

Well, in other words, he can be discharged —

Robert W. Yost:

He could’ve been discharged or demoted, sure —

Byron R. White:

Is that a negotiated (Inaudible)

Robert W. Yost:

The 1040 days was negotiated, yes sir.

Byron R. White:

(Inaudible)

Robert W. Yost:

In 1942, the first agreement right at during World War II specified three years.

Byron R. White:

Is there any other part of the — any other aspects of the upgrading period except working underground?

Robert W. Yost:

No, there were not.

There were no courses a man had to take.

There were no special requirements to pass any tests or anything and that’s — it was simply work experience that was required in order to acquire the necessary skills that — that qualify the man to become a journeyman.

Byron R. White:

And if — if — if there were — let’s presume that four or five helpers had finished their 1000 and some-day training or work and then a — then a carman (Inaudible) the employer had no discretion as to whom to choose, did he?

Robert W. Yost:

At the end of the 1040 days, you — did you say?

Byron R. White:

Say that — say that four or five helpers had finished their — their training period —

Robert W. Yost:

Yes sir.

Byron R. White:

And that — that there were any carmen’s positions open?

Robert W. Yost:

They had the right to get on the carman’s seniority list at that time.

Byron R. White:

Yes.

They were on this carman seniority list.

Robert W. Yost:

That’s right.

Byron R. White:

But they went on by — automatically by seniority, the employer had no right to choose among the four or five.

And they went on (Voice Overlap) —

Robert W. Yost:

They — they went on the carmen seniority list as of the date they completed the 1040 days if — if they so chose.

Byron R. White:

Well, that part — that part was automatic?

Robert W. Yost:

The — once they completed the 1040 days, it was — and — and relinquish their helper seniority, it was automatic.

That we concede.

It was automatic at that point but we don’t concede it was automatic up to that point.

Now, this — this should be kept in mind, the contract provided that the only seniority which these people could choose once they completed this 1040 days of experience was the ending date of the 1040 days of service as carman.

They didn’t have any other choice and we say, if they — if they relinquish their helper seniority and chose that date, then they can’t say, “Well, we’re entitled to another date” because that was the only date that was offered to them under this contract.

And I want to point out that the Court specifically found that — that the whole purpose of this agreement was to serve as an — an on-the-job training program so that they could increase their skill and proficiency and become a qualified carman.

And the — and — and the only way they could become a qualified carman was to get this experience just as any apprentice has to take several years of training in order to become a qualified journeyman.

And because of the — the way this was determined, that is their qualification and eligibility to become carmen because of the way this was determined, this was not depended on their seniority as — as helpers at all.

In other words, seniority is a matter that accumulates automatically day by day.

This thing depended on the day they completed the 1040 days of — of service as carmen and that depended in turn on their opportunities that the opportunities available to them to work as Carmen.

It depended on their willingness at all times to work as carmen when the opportunity came.

It depended on the fact that they were always present and that they weren’t — taken a vacation or they weren’t ill for any length of time.

It depended on the fact that they continued to do the satisfactory work as a carman.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

No sir.

The — the opportunity to work as a carman, if the man was present and willing to so work depended upon his date of upgrading could — not — not his seniority as a helper.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

Except that the contract specifically said that wasn’t — not a seniority.

Arthur J. Goldberg:

I understand that.

Robert W. Yost:

Yes.

Arthur J. Goldberg:

(Voice Overlap)

Robert W. Yost:

But it — essentially, that’s what it amounted to.

Now, these veterans are trying to get this Court to construe Section 9 (c) (2) which uses the words continuously employed as if that meant continuously at work in acquiring the skills which a company — that working experience.

Robert W. Yost:

Now we say Section 9 (c) (1) of the Act is completely inconsistent with this interpretation because Section 9 (c) (1), they took mandatory that the Court treat — that the employer treat these veterans as though they had been on leave of absence.

Not at work, no man cannot be on leave of absence and — and be at work at the same time, that’s just impossible.

So, you’ve got to find another construction for the words “continuously employed” if it’s going to be consistent with this leave of absence test.

And we say the Court has already furnished that explanation, that — that interpretation in the McKinney case.

McKinney case said that only the rights which flowed from seniority alone which came about — which accrued to the veteran while he was on leave of absence because of his seniority position which accumulated during that leave of absence could be claimed on the veteran’s return.

But those rights which flowed only and depended upon his experience, his skill, his qualifications, those — those rights could not be claimed as a matter, automatic right.

They — they had to be earned and we say these veterans’ rights as carmen had to be earned under this contract.

Do you think the McKinney case overruled Diehl?

Robert W. Yost:

It’s hard to say because the facts were so unclear in — in the — in the Diehl — in the Diehl case and of course, the Court wrote no opinion in the Diehl case.

What the Court had in mind, I can’t — for the life of me determine the absence of an opinion, I can only guess.

Now — now, I think the — the McKinney case did add this qualification to the Diehl case.

McKinney did take out of — of the interpretation of this “continuously employed.”

The — the rights which flowed from the work experience.

In other words, that the — Justice Frankfurter distinguished between seniority and — and actual work experience in the McKinney case.

And whether the Court had that distinction in mind in the Diehl case, I just don’t know.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

The McKinney decision?

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

Well, what I made out of that is that — if as a matter of actual practice and construction of the contract, the — the parties made a — a new contract or in other words, modified a written contract in such a way that there was no discretion on the part of the employer that in — in actual practice under the contract, the veteran had the right to be promoted to take this group one position.

That could be shown to be the case by the veteran and he’s entitled to that.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

In this — in this case?

Arthur J. Goldberg:

Yes.

Robert W. Yost:

Yes.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

And then there weren’t any —

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

If — if they were depending on whether there were a carmen available of course.

Arthur J. Goldberg:

Yes.

(Inaudible)

Robert W. Yost:

Yes.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

That’s right.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

I’d —

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

Just — Justice Frankfurter said that rights which flow from experience, skill, effort and chance cannot be claimed by the veteran.

That those — those things are not just — just discretionary with the employer.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

That was certainly the — the significant decision of that case.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

Yes, yes.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

Well, if we conclude that the — the matter of management discretion is the only way that that the court decision below can be upheld, then that’s right.

But I — I think we have to find out what is meant by continuously employed in the statute because that — that’s the whole basis for their — their claim in this case.

What is meant by continuously employed?

Does it mean continuously at work, getting the skills that can only be gotten by being continuously at work? Or does it meant — does it mean that a man can be on leave of absences as — as contemplated in Section 9 (c) (1) and still be continuously an employee.

A man might be an employee even though he isn’t at work.

He can be an employee when he’s on weekends, when he’s not at the office on weekends, when he’s on a vacation, when he’s home in the evenings.

He’s not working, he’s not getting experience and skill but he is an employee.

And that’s what we think that this isn’t — Congress meant by the — by the use of those words.

At any rate, we think that whether they intended it or not, it has to be so construed in order to be consistent with the prior Section of the very same statute and I — I want to —

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

Because — well, I think I can explain that by going to the history of this — this statute, I think that’s important in order to understand it.

The House bill, when this thing came up from (Inaudible) in 1948, the House bill had provided that the veteran shall be treated as though he had been continuously at work while he was on military — while in service.

The conference committee rejected that language and he used the words of the Senate bill which said “continuously employed.”

Now, in explaining this language, the Senate Committee said, first of all that this was merely a statement of the escalator principle which had been recognized by the Court in a Fishgold case.

And — and secondly, they said specifically that they did not intend by this amendment to confer any additional rights on veterans under the 1948 Act then had been granted the veterans under the 1940 Act so they did not intend to change the law in any way, you see?

And furthermore, the language which they used here said, it — it shall be this — it should — it — it is a sense of Congress that the veterans should be so treated as if you’ve been continuously employed.

And then, they go on and amend Section (d) which is the enforcement section of the Act so as not to provide any enforcement of this very section that the veterans rely on.

Robert W. Yost:

The — Section (d) says that — that the Court has jurisdiction to enforce Section 9 (b) and 9 (c) (1) but it expressly omits 9 (c) (2) from the enforcement section.

Now, the McKinney case said that this 9 (c) (2) was nothing more than a clarification of the escalator principle.

In the escalator principle, there’s nothing more than a recognition by this Court of the facts of seniority.

In other words, seniority accumulates while a man is on leave of absence and that he is entitled to whatever benefits may accrue to his seniority position while he is on leave of absence.That’s all the Fishgold case held.

And that’s all the escalator principle says and that’s all this 9 (c) (2) means in my opinion.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

That’s right.

If —

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

I don’t see anything in the statute that says a man has a right to have retroactive qualification for a promotion or — can be considered as having qualified prior to the time he actually qualified.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

The — the statute requires that he be restored to his previous position and the — with the previous seniority rights and such rights as have accrued to him during his period of military absence.

That was done, there’s no argument about that part.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

Accumulating during this period of absence.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

Well, I mean —

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

Remember that he didn’t have any seniority as a carman or as an upgrader helper for that matter.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

He had the right to — to work as a carman when such work —

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

— was of —

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

Yes.

Arthur J. Goldberg:

(Inaudible)

Robert W. Yost:

But, remember this that the — the date of completion of this 1040-day period didn’t — didn’t depend on his seniority as a helper.

In other words a man might take 10 years.

A — a senior man might take 10 years and that’s actually the fact.

They might take 10 years to accomplish these 1040 days of service.

Robert W. Yost:

And the junior man might be right there joining on the spot and accomplish it in four years or less.

Now, in — in — in conclusion, I want to merely state that we think that the qualification for a carman’s seniority was not an automatic thing.

It didn’t — it didn’t depend on seniority, it didn’t accompany seniority.

It was something that had to be learned and something that they had to earn by this actual work experience and we think that since Congress rejected the position in which veterans here are taken that they be considered as having been actually on the job during their period of military service that — that this Court should take the same position.

Thank you.

Philip B. Heymann:

Mr. Chief Justice, may it please the Court.

I’d like to address myself to three things I hope without to a great length and rebuttal.

First, I hope it’s clear that we of course are not claiming that the veteran could use his military service as time that would actually satisfy the employer’s requirement of a training period.

He had to complete that when he got back, I think Justice Goldberg stated the position as — that we are espousing and that is that for — only for seniority purposes, he’s entitled to have this.

In line with this, I’d like to say something about 1948 House bill that was rejected.

There are lots of reasons why Congress can choose one bill rather than another.

I think it’s almost not worth speculating when they both are — when they both grant a similar protection as here.

But I would like to point out that the House bill would’ve given the veteran the right to be promoted.

Not just have seniority date reflect the promotion but to be promoted, although the employer only wanted trained men on the job.

Now that’s a good enough reason for me to explain why the House bill was rejected.

And another reason that is mentioned in the Senate Report is that Congress didn’t want to grant veterans after 1948 rights that might take precedents over what they’ve granted before 1948.

A neat way of avoiding doing that was to declare it sense and its — and declare its sense in terms that this Court had used those with continuous employment.

That’s my first point.

My second point is I think that the — the heart of the case can be stated more adequately now than before when I was standing up.

McKinney definitely holds that the employee can’t claim what is in the discretion of the employer to withhold from him.

What would’ve been in the discretion of the employer to withhold them had he not been — had he — even had he been present on the job, that’s certainly the heart of McKinney.

It also — it also holds that the veteran can claim on his return a promotion that he could’ve had on the basis of seniority alone had he been present on the job.

He can claim what he would’ve had as a matter of right.

Now, what this case is about — in — in this case, the veterans are claiming the — the increase in status which comes with exercising the rights they had in their absence to work as carmen.

Justice McKinney exercised — McKinney claimed that he was deprived of his right.

This Court found it was probably discretionary about his right to a promotion.

These veterans are claiming the benefits of the rights they had to work during their absence.

What the case is about is whether — it’s agreed that the veteran — it’s agreed that veterans can claim what would’ve been theirs as a matter of right had they been present.

It’s agreed they can’t claim what would have been theirs only as a matter of discretion had they been present.

This case is about what happens to the acts of nature that fall in the middle.

Philip B. Heymann:

These veterans had a right to claim work on everyday but they had no right not to be sick nor it was not — sickness was not a matter of discretion and not a matter of right.

What happens to those — what happens to the things that could’ve interfered with what the — the veteran claims but is not interference as a matter of employee or his discretion.

To that, we answer that the Diehl case has said that if the only thing as long as what the veteran is claiming depends only upon as being treated as if he had worked when he had a right to work, he’s entitled to that.

This we say is the holding of Diehl.

Byron R. White:

(Inaudible) they must — what was at the Diehl principle, the thought that — that he would have acquired the proper level of skill simply by being on the job.

Automatically, he had exercised his right, he had been there.

He would’ve — let’s call the worst and he automatically would’ve acquired the necessary degree of skills to be a carman.

Philip B. Heymann:

Mr. Justice White, I don’t think we — no, I don’t think this Court should say that he would’ve obtained any degree of skill.

All he had to do was be —

Byron R. White:

But you don’t think there’s any element of that at that stage?

Philip B. Heymann:

No, I —

Byron R. White:

(Inaudible)

Philip B. Heymann:

Actually, all that is required for their two — the two things I have to respond to, all that’s required to do a day’s work as a carman for an upgraded helper is to perform adequately.

In the memory of men in the record, no one had ever been set down without his permission.

No one had ever been taken — his up — had his upgraded work taken away from him.

Byron R. White:

Well, what was the — can you tell me what the purpose is in (Inaudible), wasn’t it in 1040 days and what is the purpose of these three, isn’t this an apprenticeship to learn something or is it just a fact that you’ve got a lot of people that —

Philip B. Heymann:

We’ve —

Byron R. White:

— that are — want the same job.

Philip B. Heymann:

Well, we’ve taken this case on the assumption that it’s a training period, though — though all that is required to become a carman after 1040 days is the 1040th day of work.

Byron R. White:

(Inaudible)

Philip B. Heymann:

Right, we’ve taken it as a training period.

I suspect that’s —

Byron R. White:

But the fact is — but — but the — that one of the — one of the realities is that the situation, if it is a training period, it must be and this is (Inaudible) training, you don’t get any more work.

Philip B. Heymann:

I think it — you have to satisfactorily perform as the carman.

I — I assume that the only training is doing carman’s work.

Its on-the-job training doing that —

Byron R. White:

Did that involved — it does involve —

Philip B. Heymann:

That’s right.

Byron R. White:

— the 1040 days worth of experience as (Voice Overlap) —

Philip B. Heymann:

That’s —

Byron R. White:

— what do you think that —

Philip B. Heymann:

That’s correct.

Byron R. White:

Do you think that’s an automatic thing that anybody would acquire simply by being there based on the work?

Philip B. Heymann:

Your Honor, on the — it — it of course isn’t absolutely automatic.

Someone could’ve failed.

Byron R. White:

Do I understand (Voice Overlap) —

Philip B. Heymann:

Someone could’ve been sick.

Byron R. White:

(Inaudible) the same category of sickness or (Voice Overlap) —

Philip B. Heymann:

That’s all.

I think it’s — I think that failure to respond satisfactorily is far less likely than any of the other alternatives as far as I can tell from the record.

It — the fact — the —

Byron R. White:

Suppose this really —

Philip B. Heymann:

— the possibility of getting —

Byron R. White:

This really isn’t much of a (Inaudible)

Philip B. Heymann:

No, I think it’s —

Byron R. White:

The work period.

Philip B. Heymann:

It’s a work period.

That’s right.

And the ultimate question for this case is whether this — whether an —

Byron R. White:

(Inaudible)

Philip B. Heymann:

Yes.

I’m beginning to worry about that right now Justice White.

The ultimate question is whether — whether the fairness of treating the — obviously the best approximation of where this veteran would’ve been had he not gone into service is to treat them as if he had been work — at work when he had a right to work.

That’s the best approximation.

McKinney tells us that there are certain things that are ultimate imponderables and that courts don’t speculate on.

One of those things is the employers’ discretion.

Now, if you wanted — if you pass the Diehl case which we say has decided this, the question is whether — whether that this Court should come down on the side of avoiding, speculating about the imponderables of discretion, of sickness and all those things or whether it should put the employee where he would most likely have been.

When all that’s involved is the right to — the assumption that the veteran would have been at work, we say should’ve come down on the side where he would’ve been.

Earl Warren:

(Inaudible)

Philip B. Heymann:

If he had — he — Mr. Chief Justice, we would of course say that he would have to complete a training period at the — before he could work in the status that — in any advanced status because the employer would have a right to require that he be trained before giving him the job.

Philip B. Heymann:

The employer could also require him to make up any lost grounds, any ground that he had lost by being away from a highly specialized field.

But, if the only statutory — the only requirement under the collective bargaining agreement for advancement between two positions was a certain number of days of work.

We would say the employee should be treated as if he had worked whenever he had a right to work.

(Inaudible)

Philip B. Heymann:

This — this —

(Inaudible)

Philip B. Heymann:

Yes, Your Honor.

I’ve — the last point I wanted to make and I’ll have to make very quickly, and that is furlough and leave of absence.

We believe that the Court was entirely correct in Diehl in overruling the Third Circuit which had relied on furlough and leave of absence for their decision.

Furlough and leave of absence was added in this way in 1940.

The bill had been written without furlough and leave of absence giving in exactly the way it is now at protected seniority position and insurance and other benefits.

Senator Danaher of Connecticut and a number of Congressmen in the House were worried about the protection of insurance and other benefits.

They said, is the employer going to be paying while the employee is away in service?

Now this was a concern to them.

Senator Sheppard of Texas responded, “No, the only insurance and other benefits that are protected are those that the veteran had when he left.”

Not — he doesn’t get any increment in pay-type benefits while he is away.

This is the way it was left for two weeks and then Senator Davis of Pennsylvania came in with the — he said, “Let’s amend the statute and put in this furlough and leave of absence clauses.”

The statute — this was endorsed by Senator Sheppard, head of the Armed Services Committee who said, “This is wonderful.

Now, veterans are also going to have the protection and the benefits that are given absent, employees who were off from leave of absence.”

To that extent, it was treated — it was considered fair to impose an extra burden on employers.

Now, this just took — it seems to me this is a very different question, it doesn’t as a matter of grammar, it doesn’t modify the seniority provisions or the position — provisions.

As a matter of history, it’s a very different matter than seniority which doesn’t burden the employer in any way.

This isn’t a question of requiring him to pay for services he hasn’t received in any way.

Byron R. White:

Mr. Heymann, is there any record at all of the (Inaudible)

Philip B. Heymann:

I wouldn’t — I wouldn’t think so Your Honor.

This Court — if there’s one thing that’s basic under the statute, it is that a man who leaves position A with seniority of — of two years and returns after three years of service — after three years of service gets seniority of five years in position A.

There’s no dispute about that at all.

Byron R. White:

(Inaudible)

Philip B. Heymann:

Well, that — that assumes that he was — that he performed his work —

Byron R. White:

What (Inaudible)

Philip B. Heymann:

— satisfactorily.

Byron R. White:

Assume there was some record (Inaudible) in the company history that every now and then a — a — an upgraded helper (Inaudible) out during the — during the 1040 days, he just doesn’t — but really, some people could do the work but some people can’t.

And (Inaudible) — enough examples of upgrading carman to be — to be voted.

Would — would that — wouldn’t that (Inaudible) could not bother you at all if you are to —

Philip B. Heymann:

I — I would say that the statute should be implied on the assumption that people continue doing satisfactory work that the veteran would’ve continued doing satisfactory work even if a sizable proportion did not do satisfactory work —

Byron R. White:

(Inaudible)

Philip B. Heymann:

— 10%, 15%.

Byron R. White:

(Inaudible) well it seems to me that there is as a matter of (Inaudible) that you have to put it in the discretion example of (Inaudible) because somebody wants you to know.

Philip B. Heymann:

Oh, I don’t — that I don’t think would be a matter of discretion.

That would be a matter of grievance arbitration, wouldn’t be on — certainly wouldn’t be in the employer’s discretion —

Byron R. White:

Well, he is (Voice Overlap) —

Philip B. Heymann:

— Mr. Justice White.

Byron R. White:

(Inaudible) so definitely they’ll put (Inaudible)

Philip B. Heymann:

Correct.

Byron R. White:

(Inaudible)

Philip B. Heymann:

Correct, but it would have to be in a–

Byron R. White:

Somebody challenge it — let’s assume the union did challenge it.

Philip B. Heymann:

Would have to be for cause.

Byron R. White:

If the degree — if — you’re doing it, well what this means is that, is that just working everyday for 1040 days that — let’s not imagine gets to be a carman, you have to demonstrate the — the ability to be a carman and satisfactory as with his skills.

Philip B. Heymann:

You have to work satisfactorily as a carman during this 1040 days.

Byron R. White:

(Inaudible)

Philip B. Heymann:

Just the — just the way every carman who continues to accu — let’s say a carman went into service and came back and — and claimed accumulated seniority, his claim would —

Byron R. White:

(Inaudible) you said it earlier, not — from the history of men, as an upgraded helper ever — ever —

Philip B. Heymann:

Been demoted.

Byron R. White:

— demoted.

Philip B. Heymann:

Well then — the only man — I did say that but I wouldn’t think it was different if they had been — if some had failed to do their job adequately.