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KIND v. PENN CENT. TRANSP. CO.

March 18, 1975

JOHN E. KIND
v.
PENN CENTRAL TRANSPORTATION COMPANY, a Corporation


Fogel, District Judge.


The opinion of the court was delivered by: FOGEL

This action, brought by John E. Kind against his employer, the Penn Central Transportation Company, (Penn Central), *fn1" presents the recurring problem of a returning veteran's eligibility for vacation benefits when he has failed to fulfill a "compensated service" requirement imposed by the applicable collective bargaining agreement. *fn2"

 All material facts have been stipulated by the parties, who agree that the case may be decided on cross motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. *fn3" The pertinent facts may be summarized as follows:

 Kind was first employed by Penn Central on or about May 20, 1969. Thereafter, he left his job as an electrician mechanic, a position which was other than temporary, because he was inducted into the armed forces of the United States on or about December 6, 1969. He remained in military service until November 24, 1971, when he was honorably discharged, and received a certificate of satisfactory completion of training and service, pursuant to 50 U.S.C. App. § 459(a). After discharge, Kind made timely application for restoration to his pre-service employment, and was reinstated in his former post on or about December 1, 1971. During the remainder of calendar year 1971, he rendered compensated service on twenty-three days.

 Penn Central denied vacation benefits to Kind for the years 1971 and 1972; it did so on the basis that the national vacation agreement between the railroad and certain labor unions, which was controlling as to Kind as a member of a class of employees represented by the International Brotherhood of Electrical Workers (IBEW), did not entitle him to a paid vacation in either year. That contract provided vacation benefits only for those employees who had satisfied a "compensated service" requirement in the preceding calendar year. The pertinent language follows: *fn4"

 
Effective with the calendar year 1968, an annual vacation of ten (10) 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 ten (110) days during the preceding calendar year and who has two (2) or more years of continuous service and who, during such period of continuous service renders compensated service on not less than one hundred ten (110) days * * * in each of two (2) of such years, not necessarily consecutive.

 Because Kind did not render any compensated service in 1970, and gave such compensated service only on twenty-three days in 1971, he was ineligible for a vacation with pay under the terms of this agreement until 1973. *fn5"

 Kind now argues, however, that notwithstanding any contractual provisions to the contrary, the vacation benefits which he claims for the years 1971 and 1972 are perquisites of seniority, and as such, are statutorily protected rights of a returning veteran. In support of this claim, he cites Accardi v. Pennsylvania R.Co., 383 U.S. 225, 86 S. Ct. 768, 15 L. Ed. 2d 717 (1966), and Eagar v. Magma Copper Company, 389 U.S. 323, 88 S. Ct. 503, 19 L. Ed. 2d 557 (1967).

 We reviewed the development of the law in this area in extenso in Dufner v. Penn Central Transportation Company, 374 F. Supp. 979, 986-994 (E.D. Pa. 1974), and consider it unnecessary to repeat that discussion in the instant case. With respect to the validity of a "compensated service" requirement of the type here in question, we noted:

 
* * * If the compensated service requirement is nominal * * * or relatively insubstantial, the benefits are held to automatically accrue with the passage of time and are protected. If, on the other hand, the compensated work requirement is substantial * * * then, because something more than the mere passage of time is required for eligibility, the benefits will not receive the protection of the Act.

 Id., 374 F. Supp. at 994 (footnote omitted).

 In Dufner, we expressly relied upon the rationale of the decision in Kasmeier v. Chicago, Rock Island and Pacific Railroad Co., 437 F.2d 151 (10th Cir. 1971). In that case, a 110 day "compensated service" requirement, a time span which coincides with the requirement in this case, was held to be substantial, with the result that the associated vacation benefits were held to be beyond the zone of protection established by the statute for "seniority" rights. See also Dugger v. Missouri Pac. R.R., 276 F. Supp. 496, (S.D. Tex. 1967), aff'd 403 F.2d 719 (5th Cir. 1968), cert. den. 395 U.S. 907, 89 S. Ct. 1752, 23 L. Ed. 2d 222 (1969).

 Kind contends, however, that the "compensated service" requirement under the pertinent vacation agreement, although admittedly substantial on its face, must be construed in light of a long-standing interpretation of that agreement by a distinguished referee, the late Senator Wayne Morse, who ruled in 1942, that a day of compensated service, for the purpose of vacation eligibility in any work year, is any work shift during which an employee performs any service and receives any compensation, irrespective of the length of time worked and the amount of compensation paid. *fn6" To this effect, the parties have stipulated, "it is possible for * * * employees to complete two or more work days in one calendar day by performing any service and receiving any compensation in two or more shifts or tours of duty in one and the same calendar day," and, further, "[it] is theoretically possible for any of defendant's employees, including the plaintiff, to receive the same vacation benefits regardless of whether they render compensated service consisting of one hour or less in each work day; or, render compensated service of a total of 880 hours or more consisting of a full 8-hour shift in each of 110 calendar days." *fn7"

 Plaintiff contends that these provisions of the vacation agreement, as interpreted by the referee, permit the "bizarre results" condemned by the Court in Accardi, supra, 383 U.S. ...


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