The opinion of the court was delivered by: ZIEGLER
(1) This is a civil action for pension benefits allegedly wrongfully withheld by United States Steel Corporation in violation of the Veteran's Reemployment Act. 38 U.S.C. § 2021(b)(1).
(2) Jurisdiction is based on 28 U.S.C. § 1331.
(3) Plaintiff, Albert T. Gall, contends that defendant, United States Steel Corporation, failed to properly calculate pension benefits when he retired on June 30, 1982 because plaintiff was an employee of defendant when he was inducted into the armed forces on September 14, 1943, and not a new employee when he returned to defendant's employ on April 2, 1946, following military service.
(4) Plaintiff testified that he was hired by defendant at the Duquesne Works on October 14, 1939; transferred to the Homestead Works on August 2, 1943; inducted into the armed forces on September 14, 1943; worked for defendant until September 17, 1943; served in the armed forces until February 1, 1946; returned to defendant's employ at the Duquesne Works on April 2, 1946; and retired on June 30, 1982. Thus, according to plaintiff, United States Steel Corporation improperly calculated his pension benefits when it utilized April 2, 1946 as the date of commencement of continuous employment.
(5) The term "continuous service" is important for pension purposes because an employee's pension is calculated from the last hiring date prior to retirement. See Defendant's Exhibit N at 69-70. The pension plan between defendant and the United Steelworkers of America provides that continuous service shall not be broken by qualified military service after May 1, 1940 if the employee is reemployed as required by law. Id. at 70. Thus, if the last hiring date of plaintiff prior to retirement was April 2, 1946, plaintiff's monthly pension of $ 852.29 is correct. On the other hand, if plaintiff was an employee of defendant prior to qualified military service, he is entitled to credit for the period from September 17, 1943 to April 1, 1946, and this credit, according to defendant's counsel, will produce an approximate monthly pension increase of $ 85.
(7) We find that plaintiff has established by a preponderance of the evidence that, when Albert T. Gall was reemployed by defendant on April 2, 1946, he was entitled by 38 U.S.C. § 2021(b)(1) to be "restored or reemployed without loss of seniority." Moreover, there is no longer any dispute that pension benefits, under the circumstances here presented, are protectable seniority rights under 38 U.S.C. § 2021(b). Alabama Power Co. v. Davis, 431 U.S. 581, 52 L. Ed. 2d 595, 97 S. Ct. 2002 (1977).
(8) Congress has provided that an employee who is reemployed following service in the armed forces shall be entitled to "such status" the employee "would have enjoyed if such person had continued in such employment" from the time of entering the military service until the time of reemployment. 38 U.S.C. § 2021 (b)(2).
(9) We find the evidence preponderates that Albert T. Gall was inducted for training and service on September 14, 1943, while employed by defendant, as required by 38 U.S.C. § 2021(a), although he did not report for basic training at Camp Meade until October 5, 1943.
(10) We reject the notion that an employee who has been inducted, sworn and ordered to report within three weeks is not entitled to the protections of the Act. Congress did not intend to deny protection under such circumstances because an employee could be otherwise discharged by an employer, without recourse, merely because the employee had been inducted in the armed forces but had not reported for training.
(11) Having determined that plaintiff was entitled to the protections of the Act following his induction on September 14, 1943, we turn to the question whether plaintiff was an employee of defendant following induction. The records of defendant establish that plaintiff was an employee until September 17, when he allegedly was suspended, subject to discharge, for refusing an assignment and threatening a foreman. Plaintiff testified that the incident never occurred. Plaintiff further testified that he was unaware of any Act of Congress protecting employees when he left defendant's employ for training and service on September 17, 1943.
(12) The personnel records of defendant contain the following notation: "I want to get my pay at once. I hereby waive the 5 day notice of termination given me on 9/17/43. Albert Gall. September 20, 1943." The same exhibit notes: "9-20-43. Refused to do work assigned. Says he is going to the Army also." See Defendant's Ex. G. According to defendant, this evidence establishes that plaintiff waived his rights under the Act because plaintiff ...