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March 15, 1971


The opinion of the court was delivered by: Will, District Judge.


The plaintiffs in these consolidated cases are each suing their employer, Automatic Electric Company, under Section 9 of the Universal Military Training and Service Act, 50 U.S.C. App. § 459 (hereinafter referred to as the "Act"), claiming that they are entitled to certain vacation benefits under their collective bargaining agreement which would have accrued to them but for the temporary termination of their employment for active duty in the armed services of the United States. The issue presented to this Court for resolution is whether vacation benefits are a perquisite of "seniority" as that term is used in Section 9 of the Act, which must be granted an employee upon his return from military service. The facts are largely stipulated and each side has moved for summary judgment. For the reasons stated below, we grant defendant's motion for summary judgment and deny plaintiffs' motion for same.

The work history of the three plaintiffs can be summarized as follows:

           Date of   Date Left Work     Date       Approximatetime
            Hire   to Enter Service  Reemployed   of Non-employment
Connett    6/8/64      6/14/68        5/26/70     1 yr., 11 1/2 mos.
Eblin      6/12/67     4/19/68        4/20/70     2 yrs.
Watkins   11/30/64     2/16/68        3/18/70     2 yrs., 2 mos.

The controlling collective bargaining agreement states that for an employee to be entitled to vacation benefits during a year, he must have at least one year seniority and have been on the payroll on December 31st of the preceding year. The one year requirement is not here involved since all three plaintiffs have more than one year's seniority. Also not at issue herein is the amount of vacation to which these plaintiffs are currently entitled based upon their seniority. For this purpose, the defendant computes their seniority as if they had never left its employ for military service.

The sole issue here is whether or not the plaintiffs are entitled to full vacation pay for the years 1969 and 1970. The employer claims that they are not entitled to such benefits because they were not on the payroll on December 31, 1968, and December 31, 1969. The plaintiffs did receive full vacation benefits in the year 1968, which accrued to them by being on the payroll on December 31, 1967, even though each only worked part of 1968. And they will be entitled to vacation benefits in 1971 because of being in defendant's employ on December 31, 1970, although they worked less than a full year in 1970. Thus, the plaintiffs have only been deprived of vacation benefits for two calendar years, which corresponds to the approximately two years that each did not work for defendant because of his military obligations.

Plaintiffs' claim to vacation benefits for 1969 and 1970 is said to arise under Section 9 of the Act. Section 9(b)(B)(i) of the Act provides that reemployed veterans must be restored by their employer to "a position of like seniority, status, and pay" to that which they had prior to their induction. Section 9(c)(1) of the Act provides that reemployed veterans

2 "shall be considered as having been on furlough or
  leave of absence during his period of training and
  service in the armed forces, shall be so restored
  without loss of seniority, shall be entitled to
  participate in insurance or other benefits offered by
  the employer pursuant to established rules and
  practices relating to employees on furlough or leave
  of absence in effect with the employer at the time
  such person was inducted into such forces * * *."

Section 9(b)(B)(i) thus deals with rights that relate to seniority and Section 9(c)(1) deals with "other benefits." As to "other benefits", a reemployed veteran is entitled under the wording of the statute solely to those benefits that are provided to employees who are on leave or furlough for non-military reasons. Because the defendant does not provide vacation benefits to employees on non-military leave or furlough from employment, the plaintiffs are not entitled to vacation under 9(c)(1)'s provisions for "other benefits." Recognizing this, the plaintiffs argue that the defendant's denial of their vacation benefits for 1969 and 1970 has caused them to incur a "loss of seniority."

Prior to 1966, the lower federal courts compartmentalized the "seniority" benefits protected by § 9(b)(B)(i) from the "other benefits" protected by § 9(c), with vacation benefits considered to be "other benefits." See, e.g., Siaskiewicz v. General Electric Company, 166 F.2d 463 (2d Cir. 1948); Brown v. Watt Car and Wheel Company, 182 F.2d 570 (6th Cir. 1950); cert. denied, 340 U.S. 875, 71 S.Ct. 121, 95 L.Ed. 636 (1950); Alvado v. General Motors Corp., 229 F.2d 408 (2d Cir. 1956), cert. denied, 351 U.S. 983, 76 S.Ct. 1050, 100 L.Ed. 1497 (1956); Foster v. General Motors Corp., 191 F.2d 907 (7th Cir. 1951); Seattle Star, Inc. v. Randolph, 168 F.2d 274 (9th Cir. 1948); Monticue v. Baltimore & O.R.R. Co., 91 F. Supp. 561 (N.D.Ohio 1950). In 1966, however, the United States Supreme Court, in Accardi v. Pennsylvania Railroad Co., 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966), blurred this compartmentalization which it had never directly endorsed.

Accardi involved a dispute as to the amount of severance pay due to a group of reemployed veterans. Under the terms of an agreement between their employer and their union, the amount of severance pay was based upon the length of an employee's "compensated service." A month of "compensated service" was defined as one in which the employee worked at least one day, and a year of "compensated service" as one in which he had worked at least seven months. The employer did not include the time spent by veterans in the armed forces in determining the length of their "compensated service" on the ground that the amount of severance pay was based on the total actual service rendered by an employee, rather than just his "seniority."

The Supreme Court disagreed:

  "The term `seniority' is not to be limited by a
  narrow, technical definition but must be given a
  meaning that is consonant with the intention of
  Congress as expressed in the 1940 Act. That intention
  was to preserve for returning veterans the rights and
  benefits which would have automatically accrued to
  them had they remained in private employment rather
  than ...

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