BROOKS v. MISSOURI P. R. CO.

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Argument of Philip B. Heymann

Chief Justice Earl Warren: Number 53, Robert C. Brooks versus Missouri Pacific Railroad Company.

Mr. Philip B. Heymann: Now, this -- this case is in most respect similar to Tilton or at least that's how I intended to begin the argument though I can see that -- that will require some arguing.

Brooks was an apprentice when he went off to the service.

He was an apprentice machinist not a carman.

The apprenticeship program consists of 1040 days of work plus successful completion of a correspondence course.

After 1040 days of work, the apprentice automatically obtains the status of a journeyman machinist but he doesn't obtain machinist seniority until -- unless he's in the language of the contract continued in the employment in the language of common sense employed for one day as a journeyman machinist.

He has to be employed for one day after completion of 1040-day apprenticeship period.

He does -- the journeyman machinist does, however, have a right to do work of a journeyman ahead of anyone who has less status than a journeyman, less than upgraded apprentices.

I'd -- I'll remind you of that when we get later on in the case.

Brooks was called away as an apprentice from Monroe, Louisiana.

He returned to Monroe, Louisiana and worked there in his -- after his military service and worked there on his apprenticeship until the -- there was a layoff at Monroe.

The Monroe was actually disappearing as a shop where work was being done.

He transferred to St. Louis where the railroad was calling for apprentices and a year later in the summer of 1955, he trans -- I think it was 1955, he transferred with the Railroad's permission to North Little Rock.

He completed his 1040 days at North Little Rock and was thereupon assigned -- he immediately went to work but he claimed his seniority date which would have been his, had he been continuously employed in his apprenticeship program during the period he was away in military service.

The railroad rejected this.

The District Court this time found in favor of the veteran saying that his process would have been -- now, every step was a matter of right.

The Court of Appeals again for the Eight Circuit reversed this time merely citing its Tilton opinion.

It relied on the fact that obtaining work as a journeyman for a day was not absolutely certain and foreseeable as the ground for reversal.

I've said that in most respect, this case is in our view similar to Tilton.

As in Tilton, we rely and deal for the proposition that the veteran can claim as a matter of right what would have been his had he merely been continuously on the job and at work.

We say that Brooks' job was the job of being an apprentice and had he been continuously on the job, he would have had the seniority date he claims here.

It's true, as my discussion would -- in line of my discussion with Justice White that he had to complete a correspondence course.

However, we do not see any reason for treating this part of his job, a required correspondence course, as different from any other part.

We think that continuous employment includes the right to be treated as continually measuring up to accept its standards for the job, and we think that accepted standards for the job of apprentice is accepted progress is -- is expected progress in learning during your apprenticeship and is satisfactory completion of whatever correspondence course is required.

I'd like to make an alternative argument to that though on this point on the correspondence course.

We would argue that a veteran has a right to be treated as -- at a later date as if he had passed a qualifying test at an earlier date, once he's passed it.

Now, let me step back on that.

There's no question between any parties, I don't think that -- that a veteran who says and makes out a claim that by seniority alone would have been -- he would have been entitled to fill a vacancy during his absence, is entitled to have that position on his return.

I think everybody agrees on that.

Now, the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip B. Heymann: Yes, Your Honor.

Justice Arthur J. Goldberg: -- the whole period.

Mr. Philip B. Heymann: Yes, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip B. Heymann: You --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip B. Heymann: You also assume that he was present and wasn't ill and --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip B. Heymann: You -- you -- you assume that he elected to give up seniority.

I'd -- I'd like to bring this out, all the factors that are supposed to be troublesome in this case are conceded in that case.

You assume that he elected to give up seniority in the lower job in order to get the higher position but anyway, that is conceded.

Now the question is what happens if the employer says the senior man in category one is entitled to a promotion to group two if he has vision of 20/50 or no better or no worst.

We would say, when that employee returns and takes an eye test and is shown he has 20/20 vision, he can still claim the vacancy that was filled during his absence and that he would have been entitled to even though he had to pass a qualification test, and he couldn't pass it because he was away in military service.

Now, we would say the same thing of any objective tests, it doesn't make a difference to us whether it says he has to have an IQ of 100 or whether it says he has to satisfactory -- satisfactorily pass any objective test, any test that doesn't involve management -- the -- the marking of which did not involve management discretion and we would treat the correspondence course that way even if we weren't -- if even if we didn't simply sweep it in with --

Justice Byron R. White: What really (Inaudible) after he got back and then proves he could've done it but the (Inaudible) during the war?

Mr. Philip B. Heymann: Yes.

Justice Byron R. White: Could have done it also.

Mr. Philip B. Heymann: We -- we have to do that because the largest extent advancements could be denied to veterans --

Justice Byron R. White: Are those -- were discretionary (Inaudible)

Mr. Philip B. Heymann: Not for discretion --

Justice Byron R. White: Suppose that (Inaudible)

Mr. Philip B. Heymann: No it doesn't apply to discretion.

I don't think Your Honor.

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Argument of Philip B. Heymann

Chief Justice Earl Warren: Robert C. Brooks, Petitioner, versus Missouri Pacific Railroad.

Mr. Heymann, you may continue your argument.

Mr. Philip B. Heymann: Thank you Mr. Chief Justice, and may it please the Court.

I'd like to begin my argument by making clear one point that is crucial to our case and then I'm afraid I left very obscure yesterday.

We are not claiming that the veteran has any rights in a higher position until after he has fully completed any work requirement that the employer imposes.

He must actually work the number of days the employer requires before he has any rights in a higher position.

Now, to take an example that will make that absolutely clear.

If the employer -- if the employee has worked 100 days before he goes into military service and then misses, let's say 600 days of a 1040-day period, because of his military service.

When he returns, he must work 940 more days.

He must get in 1040 days of actual work.

This -- this case, the Brooks case, and the Tilton case which was the last one, only arise after he's actually completed 1040 days of actual work.

At that point, he says, “I'd like my seniority date to be placed so I haven't lost my relative seniority position.”

And that's where these cases begin after 1040 days of actual work.

Justice William J. Brennan: (Inaudible)

Mr. Philip B. Heymann: That's it Justice Brennan.

He has to work 1040 actual days of work -- military service not counted towards those.

Justice William J. Brennan: He has no -- he has no right to work those 1040 days that's involved, doesn't he?

Mr. Philip B. Heymann: He has no right -- he has actually under the contract on his return, certain rights to work ahead of other people.

In the Brooks case, an apprentice has a right to continue his apprenticeship.

In the cases before this, a upgraded helper has a right to work ahead of those who were junior to him in upgrading but does it on -- he has certain contract rights but --

Justice William J. Brennan: But that's all --

Mr. Philip B. Heymann: That's all --

Justice William J. Brennan: -- is it layoff or a shutdown?

Mr. Philip B. Heymann: In -- if there is a layoff, if there's a shutdown, anything that happens after his military service is at the employee's peril.

Justice William J. Brennan: He is subject to all those perils --

Mr. Philip B. Heymann: He's subject to all those perils.

Now, we -- I had argued yesterday that the function of the statute, or the most important function is to grant the veteran as a matter of statutory right, what would've been his as a matter of contract right, had he been “continuously employed.”

Those words have been used all the way back to fiscal decision at the very beginning.

I then argued that the quotes were taken from around the words “continuously employed” in a Diehl for the first time.

The issue what “continuously employed” meant was squarely faced and decided and it was held that it means continuously at work when -- when the veteran would've had a right to work.

That was the only case that has taken the quotes away from the words “continuously employed.”

And I finally said that in the McKinney case, the McKinney case was a case that again could be decided with the quotes around continuously employed.

It said the veteran can only claim what would be his as a matter of right, had he been continuously employed when he was in military service.

He cannot claim what would've been his only in the employer's discretion, had he not been in military service.

But only one case has passed on exactly what “continuously employed” means and that's the Diehl case and that's never been overruled.

I had begun to discuss Brooks yesterday, Brooks was an apprentice in contrast to Diehl who was an upgraded helper.

And I'd said that the requirement of finishing 1040 days of apprenticeship was, we believed, identical to the requirement of working 1040 days as an upgraded helper in Diehl, I'd also talked about the requirement of a correspondence course.

There are two other things I should mention in Brook -- Brooks, two other points that I do not think are difficulties but they are points.

The first is, the respondent suggests that the fact that Brooks transferred a number of times after returning to Monroe, Louisiana, maybe relevant to this case.

One of those transfers was apparently a discretionary transfer with the employer.

My answer to that is very much what I answered Justice Stewart before.

“We're only reconstructing his time of military service.

He left Monroe, Louisiana and he returned to Monroe, Louisiana.

He claims the right to be treated during that gap in his employment career as if he had been continuously employed.”

There are no transfers as to the rest of his career after his return, he takes that as it falls, that's his actual history of -- he gets lot of days of work, that's fine if doesn't, that's fine too.

When Brooks returned to Monroe, Louisiana after his military service, he had certain statutory rights because there would've been contract rights had he been continuously employed.

One of those was a right to be treated as if he had worked whenever he would've had the right to work, had he not been in service.

He -- he carried this with him wherever he went later.

And later when he actually completed 1040 days of actual work, he could count these days in setting his seniority date.

Later transfers just aren't relevant in the case.

The final variation in the case is --

Justice John M. Harlan: (Inaudible)

Mr. Philip B. Heymann: I'm -- I'm not sure I understand Mr. Justice --

Justice John M. Harlan: (Inaudible) the same kind of work (Inaudible) in the location.

Mr. Philip B. Heymann: He -- he was doing the same kind of work.

Justice John M. Harlan: (Inaudible)

Mr. Philip B. Heymann: It would -- it -- yes, they're certainly relevant in the sense that he has to actually work and that the days of actual work are counted up and had he -- had he failed to get work after he returned from Monroe, Louisiana, could he -- and had he not been able to find work as an apprentice, that would've slowed him down very much.

The last -- their variation is the one the Eighth Circuit decided on.

The Eighth Circuit said in its decision in this case that Brooks had no right to be employed as a journeyman in North Little Rock on November 3rd, 1955, the date everyone has agreed for purposes of this case or for purposes of dating that he would've finished his apprenticeship.

They say moreover, it was certainly unforeseeable that there would've been a shortage of a -- of journeymen machinist at that time.

I'm -- I'm sorry, I have to take the Court back.

I had said yesterday that seniority as a journeyman begins on the first date that an apprentice works as a journeyman after completing his apprenticeship period.

It doesn't begin on the last date of completing the apprenticeship period but on the first day of work as a journeyman.

Well, to the Eighth Circuit's decision, we say that Brooks had the very sort of right to work as a journeyman on November 3rd, 1955 but the statute gives him a statute that the statute protects.

He had a right to be employed ahead of all those who were actually doing journeyman work on that date.

Not all of those, all those upgraded apprentices.

The record is clear that there were number of vacancies for a journeyman's work on November 3rd, in November, 1955, that these were being filled by upgraded apprentices and that any journeyman would've had a right to bump all -- what of -- well, the first or anyone of the upgraded apprentices and take that work.

All the statute requires in the way of a right to a promotion or a right to a seniority date or a right to work, is a right to fill a vacancy ahead of all the other claimants.

That's -- that's the holding of the Mckin -- of McKinney on remand, I don't know.

The Court remanded McKinney to determine whether McKinney would've had a right ahead of all other claimants to a -- a vacancy in group 1, he had been in group 2.

And the -- the only right that the Court required was a right ahead of all other claimants to fill a vacancy that in fact, existed.

Brooks had a right ahead of a number of claimants to fill a vacancy that actually existed at the time he would've completed his apprenticeship, he had a right to work as a journeyman at that time.

It's -- as a practical matter, it's hardly necessary to add that he -- as a practical matter, he had a right against his employer too.

His employer could only have failed to hire him as a journeyman by discharging a number of upgraded apprentices and seen a great deal of -- of machinist work left undone.

The other fork of the Eighth Circuit's decision was that even if this maybe so, the fact that vacancies would exist on November 3rd was certainly unforeseeable when he left.

This is the heart of the Brooks decision and the foreseeability is very much part of the decision in Tilton.

We believe that foreseeability is plainly not required under the statute.

This again was decided in the McKinney remand.

When McKinney left for service, he couldn't have known that there would be a vacancy in group 1 during his absence.

The Court held that if he had a right to be the one to fill that vacancy, he was entitled to, on his return, to be given that vacancy.

Now, that was unforeseeable but the Court squarely held that he had that right.

Foreseeability simply doesn't -- isn't simply -- isn't a requirement for the veteran to assert his rights.

Now, in conclusion, I'd like to say just about three or four sentences.

I've argued this case very largely in terms of it having been decided in Diehl that a veteran should be treated as if he were continuously at work, and this decision not having been later reversed by the Court in McKinney, McKinney involving a quite different problem.

I'd like to say in conclusion that even if Diehl were not there, the Diehl result seems to me, to be almost dictated by the statute.

The statute directs the employer in the courts to return the veteran without loss of seniority.

The veterans in a case like this where they haven't been able to complete a number of days work requirement, 1040 days in both this cases and in Tilton, have sustained a very substantial loss of seniority.

There is no question but the best approximation of maintaining their seniority position is to treat them as if they had been at work whenever they had a right to work and not to treat them as if they had been on a leave of absence, which is one thing they wouldn't have been on.

Against that best approximation, the only fact -- there are no factors as there were in McKinney that weigh against adopting that best approximation.

There is no interference with the employer's discretion which were in the Court in McKinney.

There's no invitation for the Court to plunge into a -- an attempt to litigate imponderables, would the employer have promoted this man.

It's simply a question of treating this if he had worked when he had a right to work.

I think the Diehl result would be reached if it were fresh and it was certainly reached in Diehl.

Thank you Your Honor.

Chief Justice Earl Warren: Mr. Light.

Argument of Robert V. Light

Mr. Robert V. Light: Mr. Chief Justice and may it please the Court.

This case was tried in the Eastern District of Arkansas like Tilton that came here through the Eighth Circuit.

There are a number of factual distinctions between this case and Tilton.

In the first instance, Mr. Brooks was engaged in a traditional type of apprenticeship, a formalized traditional arrangement requiring coincidentally, 1040 days as did the -- which was the day requirement in Tilton.

However, it's quite clear in this case that this was a training period, not simply a work period.

This is made clear by the correspondence course that Mr. Justice White referred to yesterday.

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: A journeyman machinist --

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: Your Honor.

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: He works under the journey -- you mean when he's on the job working as a machinist apprentice?

Justice Byron R. White: Yes.

Mr. Robert V. Light: During the training period, he works under the supervision of the journeyman machinist performing machinist type of work in order to qualify to ultimately become a journeyman machinist.

But it all --

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: The record is unclear on that, I'm -- I'm certain they have apprentices --

Justice Byron R. White: If the -- in the announcements, they have to know (Inaudible)?

Mr. Robert V. Light: Your Honor, frankly that is not in the record -- that was not developed, unlike --

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: The -- the point that this is a training period?

Justice Byron R. White: Yes.

Mr. Robert V. Light: Well --

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: Well really, the only thing in the record on that, Your Honor is that the correspondence course which is a two --

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: The Railroad Company through its apprentice instructor who testified in this case --

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: That again was not developed in the trial court, Your Honor but he does testify and as I say, the only thing in the record on that point, that if the apprentice machinist gets as much as three months behind and his correspondence course is either two lessons per month by correspondence, that he's in a subject to dismissal from the apprenticeship.

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: Well, I think we must infer that there are some -- some skill and some learning involved in -- in -- either that's implied from the course itself, the course -- correspondence course of study.

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: Well, the standard of sufficient proficiency be retained in the apprenticeship.

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: Well, perhaps we -- we find the -- the criteria that Your Honor is searching for in the written collective bargaining agreement as it pertains to apprentices.

There's a provision in there that during the first period which happen to be 130 days in apprenticeships, divided into eight periods, that if he does not show proficiency to become an apprentice or to become a -- a journeyman that he would be dismissed, that he will not be retained.

That's what the labor organization and the Railroad Company have agreed that he will not be retained if during the first period, he doesn't demonstrate proficiency, a positive standard.

Chief Justice Earl Warren: Then when he has finished this training period, is the employer at liberty either to employ as a machinist or to -- or to -- not to?

Mr. Robert V. Light: Yes, Mr. Chief Justice and that is another significant factor in this case that -- that distinguishes it from Tilton, argued yesterday.

The apprentice machinist under the collective bargaining agreement in this case, on completing his 1040 days, does not thereby acquire, on the 1040th day or the 1041st day, seniority as a journeyman.

In Tilton, the upgraded carmen helpers did acquire or make it on finishing their 1040th day and on making the election to forfeit their helper seniority, they did then acquire seniority on the carman -- journeymen carmen's seniority roster.

He does not, as an apprentice.

He has no right to an employment by the Railroad Company.

The practical affect to that is that if there were four carmen -- upgraded carmen helpers who had finished their 1040 days and one vacancy for a carman, then the one that would get it would be the one that first finished his 1040 days.

And contemporaneously, elected the forfeiters helper seniority and at that time, he went on the carmen's roster.

However, in this case, if there were four apprentices who had competed and one vacancy for an -- for a journeyman machinist, the one that would get it is the one that the Railroad Company would select from among the four regardless of whether he had finished the day before or year before because he has no seniority whatever on the journeymen's seniority roster until he's employed by the Railroad Company.

Selected and employed and works his first day and that's the day that he establishes on that roster.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert V. Light: Your Honor, I believe that rule is at page 62 of the record, Rule 37 (e) which states, “If an apprentice is retained -- if an apprentice is retained --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert V. Light: -- in service.”

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert V. Light: I --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert V. Light: I believe Mr. Justice Goldberg, subject to Mr. Heymann's correcting me when he makes his rebuttal that perhaps that is a -- a misprint and it should read Rule 37.

Now --

Unknown Speaker: 37?

Mr. Robert V. Light: Yes sir, it's Rule 37 (e).

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: Yes, Your Honor.

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: The trial court's findings of fact which of course were accepted by the Court of Appeals as it must accept them.

They were based on substantial evidence, were to the effect that there was a shortage of journeymen mechanics at the North Little Rock shops during this November period that we -- were talking about and I'll talk about a little bit more in a moment.

And that --

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: Apprentices that presented --

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: That -- that their -- that whatever discretion management had would've been readily -- readily exercised.

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: That was the situation it found as the fact existed in North Little Rock at that time.

Now, I'll -- I do not say that the trial -- in fact, I contest that trial court's conclusion of law --

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: -- that this would make it automatic within McKinney is -- is correct, that I think that it's not.

Chief Justice Earl Warren: Mr. Light, would it disturb your argument if I ask you to state briefly how the Missouri Pacific Railroad would be injured if this case was reversed?

Mr. Robert V. Light: Your Honor, wouldn't -- it would not disturb my argument at all.

There is no immediate prospect of injuring -- a monetary injury at Railroad Company.

It doesn't cost the Railroad Company anymore to employ Mr. Brooks than it -- than it would to employ whoever is now ahead of him on the seniority roster that he would jump if he's successful in this case.

There is a possibility that I haven't researched and reached the point of the finding -- searched and researched it that we would have claims from persons like Mr. Brooks if -- if this case is reversed, saying, “You had me in the wrong place on your seniority roster all these years, as the consequence, I was laid off when I should not have been and you owe me a back pay for that.”

The other disadvantages that a man could sustain as a result of being on the wrong place in the seniority roster, it'd be hard to measure the monetary damage but he could've been in a better job that might've had either more convenient hours as a result of his seniority or might've produced more overtime pay than -- than the job he was able to hold because of his relative position on the seniority roster.

Really, I'm here and the Railroad Company is here and in more or less, a representative capacity for the Railroad Brotherhood, that's an unusual position to be in but the labor organization of which the petitioner is a member, the AF -- AFL Railway Employees Department has filed an amicus brief here in support of the position that -- that I present.

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: No, I don't quite follow you that --

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: And I don't recall that is in either case, nor I don't think there's been any -- any suggestion to that effect here.

If -- if I'm following you on what sort of mistake --

Justice Byron R. White: (Inaudible)

Mr. Robert V. Light: The Government emphasizes in its brief that Brooks had a contract right to complete his apprenticeship once he had gotten into it and once he got over the first 130 days which was more or less a probationary or trial period.

I'd like to point out that that is not what it -- it might imply, his contract right to complete the apprenticeship.

He was not employed for a term of days or months adding up to 1040 year -- 1040 days.

He was employed to complete his apprenticeship specifically provided in the agreement that he could be discharged for cause during the entirety of the 1040 days and certainly, he was subject to layoffs, which an employee contracted to work for a -- a period of time would not be.

This is best evidence by what happened to Mr. Brooks in this case.

He came back from the middle of his service to Monroe and resumed his apprenticeship.

And thereafter, the -- there was a change and the work done at Monroe and he was laid off.

The machinist work was no longer available to him as an apprentice there.

So he had no right to continue his employment as such.

Now, he was able to some several months later, to find a vacancy in the St. Louis shops of the Railroad Company and transferred there in response to a system call.

But his so-called right to complete the employmentship -- to -- the employment to the extent that it is relevant isn't really what it implies.

That is, that he was employed subject to the layoff if -- if the work diminished and subject to a discharge for cause.

There is a stipulation in this case that I want to discuss to a certain extent.

November 3, 1955 was the date that Mr. Heymann has referred to that all parties agreed that -- and to use his expression “that he would have completed his apprenticeship but for the military interruption.”

What that was, that was not intended as a stipulation to make this ideal type of case that is an agreement that the 1040 days were simply a work period and was not a training period.

It was not intended to -- to take it out of the -- or to resolve the uncertainties, a non-automatic type of -- of criteria that was laid down in McKinney.

In 1945, the Railroad Company and the Railroad Brotherhood entered into an agreement which is referred to in this record as the Memorandum of Understanding of 1945, which provided the apprentices more.

The apprentices, who had been employed by the Railroad Company and then went to service during the course of their apprenticeship, went to the military service.

It provided them more than the Act provided.

It provided that upon return and completion of their apprenticeship with the Railroad Company after the military service, their seniority as journeymen would be fixed as of the date they would have completed their apprenticeship but for the military interruption.

Now, having made that provision and having apprentices now returning in the 1940s from the military service and completing their apprenticeship, it was necessary for these contracting parties, the Railroad Company and the Brotherhood to device a method of computation under that contract by which they would assign those seniority dates to these apprentices.

And it is that method of computation by which the November 3, 1955 date is reached.

That is we -- we do not agree by saying that he would have finished on November 3, 1955.

That all of these uncertainties that may have kept him from finishing are resolved, are no longer in the case.

All we say and it's quite clear in the parts of the record that I've quoted in the brief that operating under the Memorandum of Understanding on 1945 and computing the time as all such computations have been made, the date of November 3, 1955 is developed.

In fact, the Railroad Company contends and concedes that in this case, he's entitled to that date retroactive seniority at Monroe, Louisiana under the agreement, without reference to any right he acquires under the Act.

He doesn't want the seniority at Monroe and has rejected it because it's of little practical value to have seniority there where the work is not done or there's insufficient work done for him to be employed.

The -- the Court of Appeals made reference to that stipulation and -- and concurred in what I've just said that it was clearly made with the reservation that it was a method of computation, not a stipulation that he would have in fact, finished on that date had he not had to go to the military service.

I find no difficulty with either McKinney or Diehl.

In this case, the McKinney rule is that the Act reserves for the returning veteran what he automatically, as a matter of right and that Mr. Heymann says that it certainly must be contact right.

I don't know where else he would acquire such right.

It preserves those things he automatically, as a matter of right would've acquired had he remained out of the military service and in the employment.

Diehl involved in an allegation in the complaint by the veteran that he would have in fact finished the apprenticeship on such and such a date.

And the case being decided on motion in the lower court, that must be taken as admitted which we don't have here.

The Government argues, I think, that this Court should overrule McKinney.

At page 36 of the Government's brief, it argues that what it is advocating for a veteran, is that he'd be able to have under the Act, all of those benefits proved with that degree of certainty, normally requisite to the established legal rights.

That he probably would've gotten had he remained in the employment instead to go in the military service.

I do not know what the reference or the phrase with that degree of certainty -- showed with that degree certainty, normally requisite to establish legal rights.

I don't know what that could mean other than preponderance of the evidence which is the usual standard by which legal rights are established on a civil case.

Now in McKinney, this Court rejected the proposition that a veteran was entitled under the Act to those things that it's highly probable that he would have acquired had he stayed in the employment.

It specifically rejected that and adopted the automatic -- as a matter of contact right standard.

If the Court concurred in the Government's approach in this case, it would not only go back to approving the highly probable standard but it would be down to a point of a preponderance of the probabilities because that's all the preponderance of the evidence is.

The Government is really asking the Court to go much further back than even the McKinney case.

I think that the position taken by the Railroad Brotherhood in their amicus brief is deserving of consideration.

They point out that this law has been a fertile breeding ground for litigation from the time of its original enactment.

And that the Diehl case didn't resolve that but perhaps prompted additional litigation, has been a great deal since Diehl, since this Court did dispose of Diehl without an opinion.

But with the standards laid down in McKinney and they're clear standards, they're standards that the Courts of Appeals have had no difficulty with.

I think that Courts of Appeal are not in conflict as to the application of the McKinney standards.

That will resolve the litigation that we've had so long for 20 years which is expensive as pointed out by the Brotherhood and which engenders unhappiness in the entire industry and all the industries affected by this, by constant litigation among fellow workers seeking to obtain relative benefits to the relative detriment of their fellow workers.

The transfer feature which is novel in this case, arises from the fact that the veteran employee seeks assignment of a seniority day, a retroactive seniority day, had a place other than that at which the collective bargaining agreement would assign it.

The railroad industry has traditionally had a system of point seniority that is an apprentice or a journeyman at Monroe, Louisiana shops, has no seniority at North Little Rock shops for the same Railroad Company or the St. Louis shops.

And if he transfers from Monroe as a journeyman, to North Little Rock, he goes to the bottom of the journeyman seniority roster.

That permits -- it obvious purposes to permit, the men on a seniority roster to be able to look at it and know where they stand down, where they will continue to stand with reference to the people ahead of them on the seniority roster.

And doesn't permit men from other shops or other points on the Railroad Company to come in and get ahead of them on a seniority roster to the point that they maybe affected by a layoff where they otherwise would not.

That's the traditional, basic concept in -- with these threats and seniority with railroad companies.

Now, in this case, Mr. Brooks was entitled under the collective bargaining agreement to retroactive seniority at Monroe but in fact, he seeks it in North Little Rock.

Now, there's only one Court of Appeals case that has come to grips with the problem of where the rights arising out of transfer, benefits accruing from transfer are subject to the McKinney standard in the same sense that benefits arising out of promotion are.

That is whether it must be automatic and as a matter of contract right, that's the Horton case from the Fifth Circuit and they clearly said that there's no distinction that -- that transfer and promotion, benefits arising from those things are subject to the McKinney standard and certainly, I can find no logical reason why that shouldn't be a applied.

The District Court concluded that the significant factor was not -- that he had no contract right to be at North Little Rock -- to transfer at North Little Rock and thereby seek his retroactive seniority there.

He had none and no contract right, the District Court said the significant thing was that he did do it, he did do it in fact.

It's clear he -- he was in St. Louis, he requested the transfer of his master mechanic in St. Louis who gave his approval and then he requested the transfer of the master mechanic at North Little Rock where he was seeking to go, who gave his approval.

There's no doubt that that was a result of exercise managerial discretion.

In the District Court's conclusion that the significant factor was that he did transfer.

And not where they had a right to do it, is contrary to this Court's holding in McKinney which was specifically that a gratuitous benefit conferred by management.

The one required does not thereby enlarge the veteran's rights.

In McKinney, the man had been assigned to the group 1 position on return, it appeared that he did not -- that -- that he -- that the company wasn't required to put him in it.

The company contended they put him in it through a mistake of law.

And this Court says, they're making a difference whether the mistake of law or not, it was a gratuitous benefit to which he wouldn't entitle as a matter of right and didn't enlarge his rights.

I think to have the case in the proper perspective, appropriate to again, referred to the remarks I've made in response to the Chief Justice's question about the Railroad Company's direct interest and it's liability to direct injuries that result to this.

I think that the Railroad Company's probable injury would not be great and then certainly, it somewhat remote at this stage.

They're probably doing here is dealing with -- of course they're not seeking some absolute benefit against the Railroad Company such as it seems on an hour increase in pay.

We're dealing with employees, co-employees seeking benefits relative to their fellow employees and which they can have and enjoy only at the detriment of their fellow employees.

Now, these fellow employees who aren't veterans have earned seniority.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert V. Light: I think that's the underlying purpose of the Act sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert V. Light: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert V. Light: Alright I'm -- I'm --I've been unclear on that and I'm glad you asked the question Mr. Justice Goldberg.

He had his basic rights granted under this Act when he returned at Monroe and was reemployed as an apprentice with the same place on the apprentice seniority roster, the same relative position and was retained there for the year required by the Act and was returned at the same rate of pay.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert V. Light: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert V. Light: Yes, sir but I believe the answer to the overall general question you asked is in McKinney and that is that there's much that he was called to the colors cannot lay claim to that might've come by chance or effort or training.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert V. Light: And I think, the very basic thing that they intended to protect by this Act.

Justice Hugo L. Black: Now, I see you referred toward the brief on this date by the Government, on the amicus brief existing.

In other words on this, I have such a brief.

Mr. Robert V. Light: The -- the amicus brief I referred to Mr. Justice Black was filed in both this case in Tilton, number 49 and 50 (Voice Overlap) --

Justice Hugo L. Black: Amicus brief.

Mr. Robert V. Light: Yes sir.

Unknown Speaker: As to the same brief?

Mr. Robert V. Light: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: That's -- that's correct sir.

Justice Hugo L. Black: (Inaudible)

Mr. Robert V. Light: I beg --

Justice Hugo L. Black: (Inaudible) in the other case and they don't have a separate brief for this case.

Mr. Robert V. Light: Oh, I see.

No -- no sir -- no sir, they filed consolidated --

Justice Hugo L. Black: (Inaudible)

Mr. Robert V. Light: -- brief.

Rebuttal of Philip B. Heymann

Mr. Philip B. Heymann: Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Heymann.

Mr. Philip B. Heymann: I'd only like to make clear that we of course, do not claim what was cut -- what we did claim in McKinney and that is that the veteran is entitled to everything that would've come to him as a matter of probability had he been continuously employed, we claim that he's entitled to what he could have had as a matter of contract right --

Justice Byron R. White: (Inaudible)

Mr. Philip B. Heymann: There --

Justice Byron R. White: (Inaudible)

Mr. Philip B. Heymann: There are many cases on that Justice White.

They generally go on whether the employer has sufficiently indicated that he's paying for work service -- for actual work.

If he will not count time of -- on leave of absence towards five years' pay, a special pay increase for five years then we don't claim it for the veteran.

If there's an -- if he calls it a work training but he counts time on leave of absence and sick leave and anything else, then we claim it for the veteran.

Justice Byron R. White: (Inaudible)

Mr. Philip B. Heymann: I don't think that is either of these cases because I think, the odds are very much in favor of them.

But in that situation, if -- if I maybe permitted to say, that -- that -- to change your example just a little, I don't think I'll be changing its content.

And they -- let's say the inquirer gave a test to the employees in a certain group during his absence and was a very hard test and it's in a -- subjective test and if you get, “Oh, I could make it.”

And I say if they have perfect eyesight, and any employee with perfect eyesight is entitled to be promoted from fireman to engineer.

We would say, in a -- any employee of a particular seniority or any employee in a particular group, we would say that even though 50% failed that test, as an average.

When the employee returns and takes the test and finds that he has absolutely perfect eyesight, he's entitled to be given the position of engineer with the seniority that he would've had, had he gotten it --

Justice Byron R. White: (Inaudible)

Mr. Philip B. Heymann: Right.

Justice Byron R. White: (Inaudible)

Mr. Philip B. Heymann: We would say that.

The only -- the only issue on this case is dating.

What date should the man be given and for dating purposes, we would say if all that's required is that he's -- have completed it, that he performed satisfactorily in the training requirement and worked --

Justice Byron R. White: (Inaudible)

Mr. Philip B. Heymann: Well, I think -- I read McKinney is simply saying that the employee cannot claim what was -- what could've been withheld from him as a matter of discretion of the employer.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip B. Heymann: I -- I believe it is Justice Goldberg, I'm certain.

I should say that the rule that we rely on very strongly which gives the -- which gives the journeyman a right to claim work away from upgraded apprentices is an unwritten rule that appears -- now, conclusively in the record, we've set out the evidence for it -- never great, but it's an unwritten rule.

I -- I think that's all I had to say.

Thank you very much.