of America, Local 610, being respectively copies of the agreements of June 16, 1942, December 17, 1943, and January 1, 1946. The agreements of January 1, 1946, and December 17, 1943, read as follows in respect to vacations:
'Section 1. Employees on the Company's roll during the current calendar year are eligible for vacation with pay based on their total service with the Company to and including December 31 of the preceding calendar year, excluding any service prior to a quit or discharge.
'Section 2. Employees with one (1) or more, but less than five (5) years' service shall be allowed a vacation of one (1) week, and employees with five (5) years' or more service shall be allowed a vacation of two (2) weeks.
'Section 3. The vacation pay for each week of vacation shall be computed by multiplying the average weekly hours worked by all employees in the preceding calendar year by the individual's average earned rate per hour in the preceding calendar year.
'Section 4. Employees with less than one (1) year's service shall be allowed a vacation of one (1) day for each three (3) months' service, with vacation pay computed on the basis of one-fifth of one (1) week's vacation pay for each day of vacation.
'Section 5. Vacations can be taken only during the current calendar year.'
The agreement of June 16, 1942, is the same as those quoted supra, except the fifth section is attached to Section 1 at its foot.
It will be noted that the complaints in both actions have not recited in support of their claims any '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' as set forth in Section 8(c) of the Selective Service and Training Act, other than those of Article VII in each of the contracts mentioned supra. They could not have set forth any varying rules and practices, because the contracts with the Union had crystallized the vacation rules and practices of the employer at the time the plaintiffs were inducted into the military service.
Keeping in mind that the contracts of the defendants with the Union provided that vacations could be taken only during the current calendar year (Section 5), and that employees on the defendants' pay rolls during that year are eligible for vacation based on their total services to and including December 31 of the preceeding calendar year, excluding any service prior to a quit or discharge (Section 1), it is plain that no one of the plaintiffs can claim the Union contract as a support to his action.
In the Union Switch & Signal Company case, No. 6116, the plaintiff, William MacLaughlin, who claims vacation pay for the years 1943 and 1945, was not in the service of the Company on December 31 of either of the years 1942 or 1944, having been released from his military service on January 3, 1945, and having been inducted therein on September 17, 1942. In the same case the plaintiff James T. Hannon was inducted into the military service on December 12, 1943, and discharged April 19, 1946. He claims a week in 1944 and two weeks in 1946, but was not in the service of the Company on December 31 of either 1943 or 1945. And the other plaintiff, Clarence Conn, was inducted on December 22, 1943, and discharged on January 27, 1946. He claims vacation pay for a week in 1944 and for a week in 1946, but was not in the Company's service on either December 31 of 1943, 1944 or 1945.
In the Westinghouse Air Brake Company action (No. 6117), Norris Borland was inducted on October 3, 1942, and discharged on October 18, 1945. He claims vacation pay for two weeks in both 1943 and 1945, but was not on the Company's pay roll on December 31, 1942, or on the same date in 1944. Robert E. Wilding was inducted in May of 1944 and discharged May 21, 1946. He claims one week in 1945 and two weeks in 1946, but was not on the Westinghouse pay roll on December 31 of either the year 1944 or 1945. The plaintiff Robert F. Borgo was inducted on August 23, 1942, and discharged on February 4, 1946. He claims pay for one week in each of the years 1943 and 1946, despite the fact that he was not on the pay roll on December 31 of either the year 1942 or 1945.
The claims of the plaintiffs in the above entitled actions are based upon their interpretation of the Selective Service Act. They parallel their vacation rights with the defendants to the seniority rights conferred by the Act. In effect it is claimed that each plaintiff is to be regarded as being on the pay roll of the defendant during the time he was actually in the military service. In other words, as his seniority rights were not lost by his service so also were his vacation rights preserved. Carried to its logical conclusion, the plaintiffs' contentions should go to the extent of claiming full pay from defendants while they were in the army, but even plaintiffs have not gone to that extent in their claims.
Counsel for plaintiffs have placed great reliance upon the following general language used by Mr. Justice Douglas in Fishgold v. Sullivan Corp., 328 U.S. 275, 285, 66 S. Ct. 1105, 1111:
'This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need. * * * And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act. Our problem is to construe the separate provisions of the Act as parts of an organic whole and give each as liberal a construction for the benefit of the veteran as a harmonious interplay of the separate provisions permits.'
This language was used in an opinion in which the Supreme Court denied the claims of a defendant who claimed the right to employment as against employees of greater seniority when it was necessary to temporarily lay off some of the employees. Arguing from the language quoted, counsel for plaintiffs contend that a liberal construction of the Selective Service Act will justify judgments in their favor.
Admitting that some courts have widened, not to say stretched, the language of the Act to include matters not readily apparent to the casual reader, we know of none which has put 'interpretation' in place of the language of the Act. In Section 8(c) of the Act (quoted supra) the following appears: ' * * * 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.' It cannot be disputed that the rules and practices of the employer relative to vacations were prescribed by Article VII of the contract with Union 610. Plaintiffs have undertaken to cite no 'established rules and practices relating to employees on furlough or leave of absence' other than the contract with Union 610. In fact they in part have based their complaint upon it. Nothing in either the Selective Service Act or the Union 610 contract calls for a 'liberal construction.' Any attempt in that direction would be shocking to common sense, as neither the Act nor the contract presents the slightest doubt as to its meaning.
The motion of the defendant, in each action, to dismiss the complaint must be granted.
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