The opinion of the court was delivered by: WEBER
Lucius Quinctus Cincinnatus was a Roman of the early days of the Republic, from whence is drawn so many of the role models of classical education. He was a small farmer but he must have possessed some prior military experience because one day the Roman army got caught on a mountain by some enemy tribes and the Roman citizens came to Cincinnatus at his farm for help. Cincinnatus agreed, accepted the post of dictator, freed the besieged legion in a one day operation, returned to Rome for the usual parade and then went back to the farm. His friends advised him that he should avail himself of all the benefits of victorious Roman veterans, dictatorship for life, running for the senate or president, bonuses, and the like. But Cincinnatus refused them all and went back to his farm. For this he is remembered as the model citizen-soldier, and the officers of Washington's army refreshed his memory after the American Revolution.
Kenneth H. Waltermyer is a late 20th century model of the citizen soldier. He has been employed by Aluminum Company of America (ALCOA) since 1966. Since April 1972 he has been a member of the Pennsylvania Air National Guard.
Waltermyer is also a member of the Aluminum Brick & Glass Workers International Union which had a collective bargaining agreement with defendant employer covering terms and conditions of employment of employees, including Waltermyer.
During the course of employment Waltermyer several times sought and received leaves of absence from employment to fulfill his military obligations as a member of the Air National Guard as employer is required to give under 38 U.S.C. 2024(d). One such occasion was leave from May 18, 1984 until June 3, 1984. Another occasion was from July 3, 1982 until July 17, 1982. On both of these occasions Waltermyer had received orders to report for Active Duty for Training. He is paid by the Air National Guard for this duty.
Waltermyer brings this suit against ALCOA because it refuses to pay him holiday pay for Memorial Day, May 28, 1984 and for Independence day, July 4, 1982, both of which are recognized as paid holidays by the collective bargaining agreement. The pay claimed for these holidays is $112.66 and $102.04 respectively.
Both sides have moved for summary judgment on a stipulated set of facts. Briefs have been filed and there is clearly no genuine issue of material fact, and the matter is entirely a question of law.
Plaintiff's claim, which is pressed by government counsel from the Department of Labor and the U. S. Attorney, arises from their interpretation
of a statutory provision in the Vietnam Era Veteran's Readjustment Assistance Act of 1974, contained in 38 U.S.C. 2021(b)(3) that any employee of a private employer
shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a reserve component of the Armed Forces.
It is the plaintiff's position that a member of the reserve is to be treated the same as any other employee on any type of leave of absence with respect to any incident or advantage of employment.
However, plaintiff points out that under the collective bargaining agreement certain employees on certain types of non-military leaves of absence receive holiday pay despite not being at work during the week in which the holiday falls, i.e. jury service, being on sick leave for more than one week.
In Hanning v. Kaiser Aluminum, 82 CCH Labor Case 10.070 (E.D. La 1977) the District Court in a similar case held the reservist entitled to holiday pay when other employees on other types of non-military leaves of absence received it:
Defendant could easily have read a reservist on active duty as being in para materia with these other excused employees and ...