before this court are whether the petitioner, Earl R. Foster, adequately preserved his claim at the original trial for pro rata vacation benefits under the Collective Bargaining Agreement, and, if so, whether or not he is entitled to any pro rata benefits.
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. . . ."