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
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
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
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