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FOSTER v. DRAVO CORP.

June 20, 1975

Earl R. Foster, Plaintiff
v.
Dravo Corporation, Defendant


Gourley, S.J.


The opinion of the court was delivered by: GOURLEY

 The court has afforded the parties a full and complete trial and has considered the briefs and arguments of counsel. It is the considered opinion of this court that the transcript in the original trial directly reflects that the plaintiff properly raised and the defendant was on notice at all stages of the proceeding in the case of plaintiff's demand for vacation benefits including pro rata vacation benefits for the years 1967 and 1968. It is also the considered opinion of this court that judgment should be entered for the plaintiff and against the defendant in the amount of $166.28, which is based on the stipulation of the parties for the amount of the pro rata benefits which the plaintiff earned for the years 1967 and 1968.

 The relevant facts to be considered can be briefly stated. On March 6, 1967, plaintiff, Earl R. Foster, was given leave of absence to be inducted in the military. After an honorable discharge, plaintiff timely filed his application for and was reinstated to his former job on October 2, 1968. Plaintiff worked nine weeks in 1967 and thirteen weeks in 1968. Although on military leave of absence, veteran plaintiff received no vacation pay in lieu thereof either in full or on a pro rata basis for his nine weeks of work performed for defendant in 1967, up to March 6, 1967, when he left for the military leave of absence, or for his thirteen weeks of work performed for defendant [after his return] to defendant's employ on October 7, 1968. There were two Collective Bargaining Agreements in force during the time of plaintiff's absence in military service. One was dated 1966 to 1968, and was succeeded by one effective September 17, 1968 through 1971. Article 14, Section 2 of the 1966 agreement provided:

 
". . . employees who are laid off during the year immediately preceding December 31, and because of such lay-off do not qualify for the vacation under this section will be given a pro rata vacation to which they might otherwise be entitled on the relationship of the weeks they did work to 25 weeks. . . ."

 The 1968 agreement expanded the above to include:

 
". . . employees who are laid off or are absent because of non-occupational sickness or injury during the year immediately preceding December 31, and because of such lay-off or absence due to non-occupational sickness or injury, do not qualify for the vacation under this section will be given a pro rata vacation to which they might otherwise be entitled on the relationship of the weeks they did work to 25 weeks. . . ."

 Since the court, on review of the record, is convinced that plaintiff did preserve his claim for pro rata benefits at the original trial of this matter, the only question before this court is whether or not the petitioner is entitled to pro rata vacation benefits in view of the Collective Bargaining Agreement, and Section 9(c)(1) of the Selective Service Act of 1967, 50 USCA Section 459(c)(1).

 The Collective Bargaining Agreement which existed between plaintiff and defendant provided pro rata vacation rights to those employees who are unable to accumulate a minimum of twenty-five weeks because of lay-offs. Section 9(c)(1) of the Selective Service Act of 1967, 50 USCA Section 459(c)(1), provides under the "other benefits" clause that vacation benefits be available to returning veterans on the same basis as they are to those on furlough or leave of absence.

 The Supreme Court in Fishgold v. Sullivan Corp., 328 U.S. 275, 66 S. Ct. 1105, 90 L. Ed. 1230, concluded that a "furlough," "leave of absence," and "discharge" are three terms used in Section 8(c) in the Act which relates to various types of cessation of work. The court went on to conclude that a furlough and leave of absence are not to be considered a discharge but a form of lay-off. This being the case, the only conclusion which can be reached is that the petitioner is entitled to pro rata vacation benefits for the time he worked in 1967 and 1968.

 Findings of Fact and Conclusions of Law have not been separately stated, but are included in the body of the Opinion as specifically authorized by Rule 52(a) of the Federal Rules of Civil Procedure.

 An appropriate Order is ...


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