Marion J. Imel v. Laborers Pension Trust Fund for Northern California

904 F.2d 1327 134 L.R.R.M. (BNA) 2313 , 58 USLW 2717 , 115 Lab.Cas. P 10,102 , 12 Employee Benefits Ca 1680 Marion J. IMEL, Plaintiff-Appellee, v. LABORERS PENSION TRUST FUND FOR NORTHERN CALIFORNIA, Defendant-Appellant. No. 88-15668. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 8, 1990. Decided May 22, 1990. Thomas E. Stanton, Stanton, Kay & Watson, San Francisco, Cal., for defendant-appellant. Mark S. Flynn, U.S. Dept. of Labor, Washington, D.C., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before CHOY, THOMPSON and TROTT, Circuit Judges. THOMPSON, Circuit Judge: 1 The Laborers' Pension Trust Fund for Northern California ("Fund") appeals the district court's judgment, after a bench trial, granting Marion J. Imel ("Imel") pension credit for the time Imel spent in military service. The Veteran's Readjustment Act (the "Act") 1 , 38 U.S.C. Sec. 2021 et seq. (1982), requires that an employee who leaves employment for compulsory military service and returns to the same employer not lose his position, seniority or status because of his military service. The Fund argues that because it never…

The Laborers’ Pension Trust Fund for Northern California (“Fund”) appeals the district court’s judgment, after a bench trial, granting Marion J. Imel (“Imel”) pension credit for the time Imel spent in military service. The Veteran’s Readjustment Act (the “Act”) 1 , 38 U.S.C. § 2021 et seq. *1329 (1982), requires that an employee who leaves employment for compulsory military service and returns to the same employer not lose his position, seniority or status because of his military service. The Fund argues that because it never employed Imel, the district court did not have jurisdiction under section 2022 which creates jurisdiction in the district court for suits by a person returning from compulsory military service against his previous employer. The Fund also argues that Imel did not return to his previous employer because, upon his return from military service, while he returned to work in the Northern California construction industry, the Union dispatched him to work for a different construction company within that industry. We have jurisdiction under 28 U.S.C. § 1291 (1982) and we affirm.

FACTS

The Fund was established in 1963 by two groups of contractors (two chapters of the…

dissenting:

The majority opinion reaches its result by effectively stretching the word and the concept “employer” beyond all recognition, giving it new meaning that no ordinary person could possibly anticipate or comprehend. All of a sudden, “employer” includes possibly an industry as a whole, a trust fund, or a union of which Mr. Imel was a member but for which he never worked. Unions in this circuit, as the Fund in this case, will certainly be surprised to discover that their members may be really their employees for certain purposes, and they will be more than interested to discover that they may have unexpected financial responsibilities for which no provisions *1335 have been made. I find the Second Circuit’s answer to the “Alice in Wonderland” indictment of this type of abuse of the English language and the plain meaning of words to be unpersuasive. We construe statutes, yes, but we do not redefine words, especially when the redefinition carries important policy implications with it. That is up to the people who write dictionaries or Congress — not judges. The majority opinion calls this a “liberal construction” of the key word and the statute: I respectfully see it as…