Before WATERMAN, SMITH and MARSHALL, Circuit Judges.
Plaintiff John A. Kelly, an employee of defendant Ford Instrument Co., Division of Sperry Rand Corporation (Ford) entered military service while in a laid-off status.On discharge from the service he was reemployed, but as a new employee. A declaratory judgment action seeking a declaration of entitlement to seniority rights on reemployment pursuant to the Universal Training and Service Act, 50 USC App. 459, was dismissed by the United States District Court for the Eastern District of New York, Walter Bruchhausen, Chief Judge, 192 F. Supp. 129, and plaintiff appeals.
The District Court held that under the terms of the employment contract between Kelly and Ford an employment relationship did not exist at the time of Kelly's entry into service within the meaning of the Act. We disagree, and hold that the reemployment provisions of the Act protected plaintiff so that he should have been accorded seniority rights on his return from the military service to his work at Ford.
Plaintiff was employed by Ford March 3, 1952. He and others were laid off April 23, 1954. May 25, 1954 he entered the armed services of the United States. March 28, 1956 Ford sent plaintiff a notice that it needed workers, and that under the collective bargaining agreement under which he was originally employed plaintiff was eligible to apply for reinstatement as a Senior Detailer, to appear April 4, 1956 for interview and employment processing. April 2, 1956 plaintiff's mother wrote Ford that plaintiff was in the service in Alaska, unavailable for reemployment until his enlistment should expire in May 1958. February 25, 1958 he completed military service and was honorably discharged. March 5, 1958, he was employed by Ford as a designer.
The Labor Agreement of May 1, 1953 to April 30, 1955 under which Kelly was originally hired, provides in part:
Subject to the following provisions, the lay-off of employees shall be in order of seniority, as defined in this Article, and recall in reverse order of lay-off provided that the employees retained or recalled are qualified to do the work available: * * *
In computing length of employment for seniority purposes, as defined in Section 3 and 4, time lost as a result of any of the following shall be considered as included within the period of employment.
(a) Military Leave of Absence.
(b) Absence from the plant under the provisions of Article VI or any other authorized leave of absence.
(c) Lay-off for a period less than provided by Section 9 of this Article.
All seniority rights shall be forfeited by:
(1) Voluntary quitting of employment.
(2) Discharge for "cause."
(3) Continuous lay-off for a period in excess of:
The same number of consecutive months of lay-off as equals the number of months of employment where the employee has completed his probational period but had been employed for less than thirty-six months. Thirty-six consecutive months of lay-off where the employee had been employed for thirty-six months, but less than 10 years. Sixty consecutive months of lay-off where the employee had been employed for ten years or more.
The Labor Agreement of May 1, 1955 to June 15, 1957, provides in part: