McKinney v. Missouri-Kansas-Texas R. Co., 357 U.S. 265 (1958)

McKinney v. Missouri-Kansas-Texas R. Co.

No. 93

Argued January 27, 1958
Decided June 23, 1958
357 U.S. 265

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Syllabus

Under § 9 of the Universal Military Training and Service Act, petitioner, who had been promoted by respondent railroad to an advanced position upon his return from military service, though, under the collective bargaining agreement between his union and the railroad, such promotion depended on fitness and ability, was not entitled to seniority in his new position from the date he would have had the opportunity to qualify for it had he remained in the continuous employment of the railroad. Pp. 266-274.

(a) Before bringing suit under § 9(d) of the Act, petitioner was not obliged to pursue remedies possibly available under the grievance procedure set forth in the collective bargaining agreement or before the National Railroad Adjustment Board. Pp. 268-270.

(b) Since promotion to the higher position in this case was not automatic, but was dependent on fitness and ability, petitioner received a promotion which was not required under the Act, and respondent was not obliged to give him a seniority date earlier than that to which any employee similarly promoted would have been entitled. Pp. 270-273.

(c) Because his complaint was dismissed and he had no opportunity to prove that, by custom and practice under the collective bargaining agreement, he would necessarily have been promoted to the new position had he remained continuously in respondent’s employ, petitioner is granted leave to amend his complaint to allege, if such be the fact, that, in actual practice under the collective bargaining agreement, his promotion was automatic. Pp. 273-274.

240 F.2d 8, affirmed.