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MONTICUE v. BALTIMORE & O. R. CO.

June 26, 1950

MONTICUE
v.
BALTIMORE & O.R. CO.



The opinion of the court was delivered by: KLOEB

This matter is before the Court on the motion of the defendant for summary judgment based upon the complaint, answer and affidavit accompanying the motion. The complaint is based upon the provisions of Section 8(c) of the Selective Training and Service Act of 1940, as set forth in Title 50 U.S.C.A.Appendix, § 308(c).

The question is whether, under the law and under the agreement governing vacation and vacation pay in lieu thereof for the benefit of the employees of the defendant, the plaintiff was entitled to one week vacation or two weeks' vacation after his return from the military service and reemployment.

 The governing statute provides that returning veterans shall be reemployed upon application and shall be entitled, among other things, to be restored to their former position, the subject of vacations being included in the following paragraph: '(c) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of active military service, 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 ordered into such service, and shall not be discharged from such position without cause within one year after such restoration.' (Emphasis supplied.)

 Vacation and vacation pay in lieu thereof was established for the craft and class of car men employed by the defendant, of which the plaintiff was one, by a national agreement of December 17, 1941. That agreement did not accord more than six consecutive work days with pay to any employee of this craft and class. The pertinent provision is Article 1 of the agreement, which reads as follows: '1. Effective with the calendar year 1942, an annual vacation of six (6) consecutive work days with pay will be granted to each employee covered by this agreement who renders compensated service on not less than one hundred sixty (160) days during the preceding calendar year.'

 In claiming two weeks' vacation with pay, plaintiff is asserting a claim under supplemental agreement of February 23, 1945, which amended and supplemented Article 1 above quoted and further provided in Section 2 as follows:

 '(A) Effective with the calendar year 1945 an annual vacation of six (6) consecutive work days with pay will be granted to each employee covered by this Supplemental Agreement who renders compensated service on not less than 160 days during the preceding calendar year.

 '(B) Effective with the calendar year 1945 an annual vacation of twelve(12) consecutive work days with pay will be granted to each employee covered by this Supplemental Agreement who renders compensated service on not less than 160 days during the preceding calendar year and who has five or more years of continuous service and who, during such period of continuous service, renders compensated service on not less than 160 days in each of five (5) of such years not necessarily consecutive.' (Emphasis supplied.)

 The undisputed facts are as follows:

 In 1942, on April 4th, he was inducted into the military service. In that year, prior to his induction, plaintiff performed 50 days of compensated service.

 Plaintiff continued in the military service until he was discharged on November 19, 1945. He was reemployed on or about February 17, 1946, and in that year performed 214 days of compensated service. He was allowed no vacation in that year because the defendant took the position he was entitled to none under the established rules and practices because he had not performed any compensated services during 1945, as he was then in military service.

 In 1947, plaintiff performed 265 days of compensated service, and on the basis of his work during the preceding year (having performed not less than 160 days of compensated service during that year) he was allowed a vacation of 6 days, in accordance with the established rules and practices of the defendant. In 1948, plaintiff performed 239 days of compensated service, and on the basis of his work during the preceding calendar year was allowed a vacation of 6 days. In 1949, plaintiff performed 242 days of compensated service and was allowed 6 days vacation. On the basis of his performance of 242 days of compensated service in 1949, the plaintiff is eligible for a vacation of 5 days in 1950 under the established rules and practices of the defendant.

 Section 2(B) of the supplemental agreement of February 23, 1945 is the basis for the two weeks' vacation contended for by the plaintiff. That section conditions the grant of the longer vacation upon the rendition of compensated service on not less than 160 days during the preceding calendar year. The plaintiff here did not render compensated service on 160 or more days in the year 1945, during which he was absent in military service.

 Leaving out of consideration the time spent by plaintiff in the military service of the United States, the year 1949 was but the fourth year of continuous service of the plaintiff, within the meaning of paragraph (B) of Section 2 of the supplemental agreement of February 23, 1945.

 There is no provision in the union agreement, or in the established rules and practices of the defendant relating to its employees, by which an employee, such as the plaintiff, in figuring the vacation benefits to which he is entitled, would be entitled to count the time spent on furlough or leave of absence as 'compensated service' with defendant under the terms of the contract.

 A leading case involving the construction of this statute is that of Fishgold v. Sullivan Drydock & Repair Corp., 1945, 328 U.S. 275, 66 S. Ct. 1105, 90 L. Ed. 1230, 167 A.L.R. 110, which held that, while this legislation is to be liberally construed, so far as seniority is concerned, Sections 8(b) and (c) of the Selective Training and Service Act of 1940 do not grant the veteran 'an increase in seniority over what he would have had if he had never entered the armed services.' 328 U.S.at page 285, 66 S. Ct. 1105, 1111, 90 L. Ed. 1230, 167 A.L.R. 110. The Court further said, with reference to these provisions: 'As we have said, these provisions guarantee the veteran against loss of position or loss of seniority by reason of his absence. He acquires not only the same seniority he had; his service in the armed services is counted as service in the plant so that he does not lose ground by reason of his absence. But we would distort the language of these provisions if we read it as granting the veteran an increase in seniority over what he would have had if he had never entered the armed services. We agree with the Circuit Court of Appeals (2 Cir., 154 F.2d 785) that by these provisions Congress made the restoration as nearly a complete substitute for the original job as was possible.'

 In the case of Aeronautical Industrial District Lodge 727 v. Campbell, et al., 1948, 337 U.S. 521, 69 S. Ct. 1287, 93 L. Ed. 1513, the Supreme Court held with regard to the seniority rights of the returned veteran under Section 8 of the Act: 'After his discharge from military service in World War II, a veteran was reemployed by his former private employer, in accordance with Sec. 8 of the Selective Training and Service Act of 1940. During his military service, the collective bargaining agreement between his union and the employer had been modified so as to give union chairmen top seniority in the event of layoffs. Within one year after his reemployment, the veteran was laid off temporarily, although union chairmen who had less time with the company were retained. The employer refused to compensate the veteran for the period of the layoff. Held: The veteran's rights under Sec. 8 of the Act were not infringed. 337 U.S.at pages 521-529, 69 S. Ct.at pages 1287-1291, 93 L. Ed. 1513.'

 In addition to seniority, it has been held that the reemployment provisions of the Act 'indicate that the act was intended to protect, among others, such employment benefits as pensions, bonuses, participation in insurance programs, and vacation pay.' MacLaughlin et al. v. Union Switch & Signal Co., 3 Cir., 1948, 166 F.2d 46.

 In Horan v. Todd Shipyards Corp., 13 Lab. Cas. #63,942 (D.C.N.Y. 1947), an action was brought under Section 8(e) of the Selective Service Act of 1940, as amended, for $ 81.90 alleged to be due plaintiff for pro rata vacation pay.

 The labor agreement with the employees required 1,200 actual working hours of regular time in the vacation year ending May 6, 1946 to entitle an employee to a vacation with pay in the year beginning May 6, 1946. The defendant contended that this rule had been applied without any exception to employees on furlough or leave of absence, both at the time plaintiff was inducted and at all times thereafter. There was no rule or practice of the defendant, nor any provision of the labor agreement, providing for pro rata vacation pay for rehired veterans or for any employee returning to work after a furlough or leave of absence. After his return from service, and in the vacation year May 7, 1945 to May 6, 1946, Horan worked 979 1/2 hours between November 13, 1945 and May 6, 1946. Including overtime, which could not be counted, he worked 1,139 hours between November 13, 1945 and May 6, 1946. The Court held: 'A reemployed veteran was not entitled to vacation pay under Section 8(c) of the Act providing for his participation in insurance or other benefits offered by his employer pursuant to established rules and practices relating to employees on furlough or leave of absence, where the right to vacation pay was governed by the terms of a union contract which required employment for a designated number of hours worked as a prerequisite for vacations and the veteran failed to meet that requirement.' (Emphasis added.)

 The case of Woods v. Glen Alden Coal Co., D.C. Pa. 1947, 73 F.Supp. 871, was a consolidation of three cases brought by returned and reemployed veterans for benefits in the way of vacation compensation under the provisions of Section 8(c) of the Selective Service Act of 1940, as amended. All three were restored to their positions with the same seniority status and pay as guaranteed by the law. The problem before the Court involved the claim of the plaintiffs for vacation compensation for the year June, 1945 to June, 1946.

 The agreement covering this period provided: 'Vacation compensation for the employment period subsequent to June 15, 1945 shall be at the rate of * * * $ 100 * * * per year for each employee and payment of the full amount of $ 100 per year shall be predicated on an employee having worked in each of the twenty-four ...


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