The opinion of the court was delivered by: GIBSON
The defendant in each of the above mentioned actions has moved to dismiss the action, asserting that the complaint fails to state a claim upon which relief can be granted.
As the claims present substantially parallel causes of action, the two cases are considered together.
The complainants in each case were World War II veterans who returned to their employment with the defendants within the statutory period of ninety days after discharge from the service of the United States.
William MacLaughlin had more than five years service with Union Switch & Signal Company when he entered the military service on September 17, 1942, and was discharged on December 21, 1944. He returned to his employment with the Company on January 3, 1945. On his behalf it is asserted that the Company, under the contract between it and Local 610, United Electrical Radio and Machine Workers of America, CIO (of which he was a member), was required to allow him two weeks vacation with pay in the calendar year 1943, and a like vacation with pay in the year 1945. The total amount of the vacation benefits claimed as unpaid by William MacLaughlin for the two years was the sum of $ 246.85.
The plaintiff, Clarence Conn, had more than two years service with the Union Switch & Signal Company on December 22, 1943, when he entered the army, was discharged from the military service on December 21, 1945, and returned to employment with the Company on January 27, 1946. He claims one week of vacation with pay in the year 1944, and a like one week's vacation in 1946. The total amount claimed was $ 105.75. His vacation claim is also based upon the contract with Local Union 610.
Norris Borland, Robert E. Wilding and Robert F. Borgo are complainants in the action against The Westinghouse Air Brake Company, Civil Action No. 6117. All of them are members of Local 610, United Electrical Radio and Machine Workers of America, CIO, and each of them bases his claim upon the contract between Westinghouse Air Brake and that Labor Union under which he asserts that Westinghouse Air Brake Company was required to allow him a vacation with pay.
Norris Borland had been in the employ of the defendant for more than five years when he entered the military service on October 3, 1942. He was discharged on October 8, 1945, and resumed employment with defendant on October 18, 1945. He claims a vacation of two weeks with pay in the calendar year 1943 and a like vacation in the year 1945, the total amount of the unpaid vacation allowance being $ 287.45.
Complainant Robert E. Wilding entered the military service in May of 1944, and was discharged on March 10, 1946. He had been employed by the defendant for four years when he entered the military service, and returned to its employment on May 21, 1946. He asserts that he was entitled to a vacation of one week in the year 1945, and for two weeks in 1946. The total amount of his vacation pay, earned but unpaid as he avers, was $ 156.07.
Robert F. Borgo started work with the Westinghouse Air Brake Company on December 24, 1941, and had been employed eight months when he entered the military service on August 23, 1942. He was discharged on January 6, 1946, and resumed his employment with defendant on February 4, 1946. He claims the right to a vacation with pay for one week in the year 1943, and for a like vacation in 1946. The total amount claimed was $ 106.86, which is unpaid.
Each complainant in both actions has based his right to recover upon the contract of his Union, Local 610, with the defendants and Section 8 of the Selective Service and Training Act of 1940, 50 U.S.C.A.Appendix, § 308.
Section 8 of the Selective Service and Training Act declares, in substance, that any person who has left his employment to perform military and training service who makes application for reemployment within ninety days after his discharge, shall be restored to his position or to a position of like seniority, status and pay. Subsection (c) of said Act is as follows:
'(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 training and service in the land or naval 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.'