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September 19, 1973

Frank S. LITWICKI, Plaintiff,

Weber, District Judge.

The opinion of the court was delivered by: WEBER

WEBER, District Judge.

In 1940 the Selective Service Training and Service Act gave re-employment rights to veterans, and these rights have been readopted without substantial change in the Universal Military Training and Service Act of 1948 and the Military Selective Service Act of 1967. [ 50 U.S.C.A. App. ยงยง 451-473]. The legislative history of the Act shows that it was intended to be remedial in scope and the courts have followed the mandate of liberal construction in order to protect the veteran. Much of the language is broad and ambiguous and it has engendered a large body of court interpretation as well as the embroidery of academic analysis and speculation in the law reviews.

 With all this body of precedent it is striking to note that we have before us the first reported issue of a contested pension case. When the Cincinnati of World War II returned from Anzio or Iwo Jima to their plowshares they were more immediately concerned with questions of re-employment, promotion, vacation pay and unemployment benefits, and only now the advancing years force their eyes upon the effect of their military service on the company pension plan. We have found no decided cases on pension rights under the Act. [The 1972 consent judgments entered in the Eastern District of Pennsylvania reported in 68 Lab. Cas. paras. 12,832, 12,833, 12,834 and 12,835 are not weighty precedents]. Thus we enter into the consideration of the immediate issue in the case at hand unenlightened by any wisdom of our colleagues but unencumbered by any misplaced confidence.

 Frank S. Litwicki, the plaintiff, served in the military service of the United States from January 27, 1947 to June 14, 1948. He was initially employed by the defendant on January 22, 1951 and he worked continually for defendant until February 2, 1954. On February 2, 1954 he voluntarily enlisted in the military service of the United States and was given a military leave of absence by defendant. He served on active military duty until November 26, 1957, was honorably discharged and made a timely application for re-employment by defendant. He returned to defendant's employment on December 1, 1957 and has continued in defendant's employment until he terminated his employment on September 29, 1969. He thus had a continuing relationship with his employer of 18 8/12 years. However, for the purpose of calculating "continuous service" in determining pension rights in accordance with the pension agreement under which plaintiff worked, the agreement provides that:


Section 3 -- Determination of Continuous Service.


B. (1) "Continuous service in any calendar year shall be credited at the rate of 1/12 of a year for every 125 hours actually worked as an Employee in the plants during such calendar year, provided, however, that an Employee may not receive continuous service credit or more than one year in any one calendar year. Except as provided in paragraphs C, G, and I of this Section 3 of this Part I, no continuous service shall be credited for any period not actually worked as an Employee in the plants." [Stipulation, Exhibit E].

 The pension agreement further provides:


Section 3. C. "Where an Employee, other than temporary Employee, enters the military service of the United States, is discharged or relieved from active service under conditions other than dishonorable, and returns to active employment within ninety (90) days after such discharge or relief, such absence shall not constitute a break in continuous service, but for the purpose of computing the amount of his pension, only the period of service rendered in time of war or pursuant to a national conscription law plus ninety (90) days shall be considered, and years of continuous service shall be credited at the rate of 1/12 of a year for each calendar month of such period of service . . .". [Stipulation, Exhibit A].

 The eligibility requirements of the defendant's pension plan require as a condition of vesting of pension rights that the employee have ten or more years of continuous service under the Pension Agreement. [Stipulation, Exhibit E, Sec. 1A(5)]. In accordance with the foregoing Agreement the defendant has calculated the "continuous service" of the plaintiff as follows: For the period January 22, 1951 to February 2, 1954 3 1/12 years For the period of military service from February 2, 1954 to November 26, 1957, credit for the period of the Korean War (June 27, 1950 to Jan- uary 31, 1955) during his service, February 2, 1954 to January 31, 1955 1 year No continuous service was granted for the period after January 31, 1955 to December 1, 1957 because this was determined to be after the end of the Korean War, in accordance with the collective bargaining agreement. For the period December 1, 1957 to September 29, 1969 4 9/12 years For a total "continuous service" of 8 10/12 years


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