John P. Locaynia v. American Airlines, Inc., a Corporation

457 F.2d 1253

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 30, 1972
• Docket: 24861
• Status: Published

Opinions

HUFSTEDLER, Circuit Judge:

Locaynia, Golden, and Specht filed an action against their employer, American Airlines (“American”) to recover vacation pay claimed due them under the terms of a collective bargaining agreement and 50 U.S.C. § 459(b) and (c) (Universal Military Training and Service Act). They appeal from a summary judgment in favor of their employer.

Locaynia was hired on November 4, 1964, worked for the airline until he entered military service on May 22, 1965, and was reemployed on his return from the service on June 5, 1967. Golden was employed on March 29, 1965, entered the service on October 22, 1965, and was reemployed on October 16, 1967, after his separation. Specht was employed on April 27, 1964, entered the service on May 22, 1965, and was reemployed on June 12, 1967, when he had completed service.

Each appellant received his vacation benefits for the years 1964 and 1965. American refused to grant any of appellants’ vacation benefits in 1967, the year of their reemployment. In 1968, Locay-nia was given seven days paid vacation, and Golden received three days.

Appellants contend that each was entitled to ten days paid vacation in 1967 and 1968 in accordance with the terms of 50 U.S.C. § 459(b) and (c)¹ and articles 8(a) ² and 18 ³ of the collective bargaining agreement. American argues to the contrary, relying primarily on section 459(c) (1) ⁴ and article 8(e) ⁵ and article 17 ⁶ of the collective bargaining agreement. The narrow issue presented is this: Was this vacation pay a perquisite of seniority, as appellants claim, or was it within the category of “other benefits,” as American contends? Resolution of the issue turns on the appropriate interpretation of Accardi v. Pennsylvania R. R. (1966) 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717 and Eagar v. Magma Copper Co. (1967) 389 U.S. 323, 88 S.Ct. 503,19 L.Ed.2d 557.

In Accardi the Supreme Court noted that nowhere in the act is the term “seniority” defined, “but it derives its content from private employment practices and agreements. . . . 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 the returning veterans the rights and benefits which would have automatically accrued to them had they remained in private employment rather than responding to the call of their country.” (Accardi v. Pennsylvania R. R., supra 383 U.S. at 229-230, 86 S.Ct. at 771. See also Hollman v. Pratt & Whitney Aircraft (5th Cir. 1970) 435 F.2d 983, 989; Morton v. Gulf, Mobile & Ohio R. R. (8th Cir. 1969) 405 F.2d 415, 419; Edwards v. Clinchfield R. R. (6th Cir. 1969) 408 F.2d 5.) Referring to the “other benefits” clause, the Court observed that “it is enough to say that we consider that it was intended to add certain protections to the veteran and not to take away those which are granted him by § 8(b) (B) and the other clauses of § 8(c).” (Accardi v. Pennsylvania R. R., supra 383 U.S. at 232, 86 S.Ct. at 773; See also Hollman v. Pratt & Whitney Aircraft, supra 435 F.2d at 986-987; Morton v. Gulf, Mobile & Ohio R. R., supra at 405 F.2d 419 — 420.)

Eagar was a per curiam reversal of this court’s decision in Magma Copper Co., San Manuel Division v. Eagar (9th Cir. 1967) 380 F.2d 318 in which we held that vacation pay was not an attribute of seniority, but a fringe benefit, adopting the language of Siaskiewicz v. General Electric Co. (2d Cir. 1948) 166 F. 2d 463, 465-466:

“ ‘Since vacation rights are not pay unless they are for work actually done, and since they are not merely a perquisite of seniority, they must fall under the heading of “other benefits.” Hence, under the language of the Act, appell[ees] must be treated like non-veteran employees on furlough or leave of absence. But non-veteran employees of [Magma] who were on leave of absence . . . would not be entitled to vacation pay for that year. Therefore, appell[ees] are not so entitled. . . .’” (380 F.2d at 321.)

We read the Supreme Court’s summary reversal of Eagar as an explicit rejection of American’s contention.⁷ Accordingly, the judgment is reversed with directions to enter judgment in favor of appellants.

1 . In pertinent part, § 459 provides:

“(a) Any person inducted into the armed forces under this title

“(b) . . . who, in order to per-

form such training and service, has left or leaves a position (other than a temporary position) . . .

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“(B) if such position was in the employ of a private employer, such person shall—

“(i) if still qualified to perform the duties of such position, be restored by such employer ... to such position or to a position of like seniority, status, and pay;

“(2) It is declared to be the sense of the Congress that any person who is restored to a position in accordance with [the foregoing provisions] should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.”

2 . Article 8, in pertinent part, provides:

“(a) Employees hereunder shall become entitled to and receive vacation allowance in accordance with the following:

“(1) As used herein the term ‘year’ is used to mean a calendar year.

“(2) As of December 31 of each year, each employee hereunder who has had one (1) year or more of continuous service with the Company will be entitled to a vacation period of two (2) weeks (ten regular workdays) to be taken in the following year.

“(3) As of December 31 of each year, each employee hereunder who has had five (5) years or more of continuous service with the Company will be entitled to a vacation period' of three (3) weeks (fifteen regular workdays) to be taken in the following year.” [Emphasis added.]

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“(d) Vacation allowances shall not be cumulative and a vacation to which an employee becomes entitled on December 31 of any year shall be forfeited unless taken during the following year.”

3 . Article 18 says :

“(a) The reemployment and seniority status of any employee hereunder, who, while in the active service of the Company entered the armed services or the Merchant Marine of the United States, shall be governed by the provision of the Selective Training and Service Act of 1948, as amended, or other applicable law.

“(b) Time spent on military leave shall count as time worked for purposes of seniority, [status, and] wage rates within the employee’s classification and vacation.

“(c) An employee granted a leave of absence to go on a tour of duty with the National Guard or other reserve unit shall accrue length of service for pay purposes for the period of such leave.”

4 . 50 U.S.C. § 459(c) (1) states:

“(1) 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 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, and shall not be discharged from such position without cause within one year after such restoration.”

5 . Article 8(e) provides:

“(e) An employee hereunder wlio takes a leave or leaves of absence which exceeds or the total of which exceeds sixty (60) calendar days during any calendar year shall have his vacation allowance to which he becomes entitled on December 31 of that year reduced by one (1) workday for each thirty (30) calendar days of said leave or the total of sucli leaves exceeds sixty (60) days if lie has less than five (5) years of service with the Company, by one and one-half (1½) workdays . . . . ”

6 . Article 17 provides :

“(a) When the requirements of the service will permit, an employee hereunder may be granted a leave of absence for a period not in excess of ninety (90) days. When such leaves are granted, the employee shall retain and shall continue to accrue seniority during such leave.

“(b) When the requirements of the service will permit, such leave or leaves may be extended for additional periods of not to exceed ninety (90) days for each such leave when approved by the Company in writing.”

7 . The dissenters’ opinion (per Douglas, J.), 389 U.S. 323, 325, 88 S.Ct. 503, 19 L.Ed.2d 557, reinforces our construction of the per curiam opinion. The Fifth, Sixth, and Eighth Circuits have reached similar conclusions: Hollman v. Pratt & Whitney Aircraft, supra, 435 F.2d 983; Edwards v. Clinchfield R. R.., supra, 408 F.2d 5; Morton v. Gulf, Mobile & Ohio R. R., supra, 405 F.2d 415. The Tenth Circuit is to the contrary: Kasmeier v. Chicago, Rock Island & Pacific R. R. (1971) 10 Cir., 437 F.2d 151.