Hollman v. Pratt & Whitney Aircraft

• Decision Date: 01 March 1971
• Docket Number: No. 29283.,29283.
• Citation: 435 F.2d 983
• Parties: Alvin J. HOLLMAN, Plaintiff-Appellee, v. PRATT & WHITNEY AIRCRAFT, etc., Defendant-Appellant. Howard B. BLAKELY, Plaintiff-Appellee, v. PRATT & WHITNEY AIRCRAFT, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

435 F.2d 983 (1970)

Alvin J. HOLLMAN, Plaintiff-Appellee, v. PRATT & WHITNEY AIRCRAFT, etc., Defendant-Appellant.

Howard B. BLAKELY, Plaintiff-Appellee, v. PRATT & WHITNEY AIRCRAFT, etc., Defendant-Appellant.

No. 29283.

United States Court of Appeals, Fifth Circuit.

December 15, 1970.

Rehearing Denied and Rehearing Denied March 1, 1971.

W. Reynolds Allen, Greene, Hogg & Allen, Miami, Fla., for defendant-appellant.

Beverly R. Worrell, Regional Atty. U. S. Dept. of Labor, Atlanta, Ga., Alan S. Rosenthal, Robert E. Kopp, Attys., Dept. of Justice, Washington, D. C., William D. Ruckelshaus, Asst. Atty. Gen., Robert W. Rust, U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before BELL, THORNBERRY and CLARK, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied March 1, 1971.

THORNBERRY, Circuit Judge:

In this appeal an employer attacks as erroneous the district court's judgment awarding vacation pay under Section 9 of the Universal Military Training and Service Act¹ to two returning employees for the year in which they left appellant's employ to enter the military service. We affirm.

Plaintiffs-appellees, Alvin J. Hollman and Howard B. Blakely, are veterans who were employed by defendant-appellant Pratt & Whitney Aircraft Division of United Aircraft Corporation (Pratt & Whitney) prior to their entry into military service. Hollman began working for Pratt & Whitney in 1960 and continued in that employment until December 4, 1964, when he left his position to serve in the armed forces. Upon his release from active duty Hollman applied for reinstatement and was re-employed by the company on November 29, 1966. Similarly, Blakely entered Pratt & Whitney's employ in 1961 and remained there until March 6, 1964, when he was summoned to military service. After satisfactorily completing his tour of duty, Blakely applied for reinstatement and was remployed on March 22, 1966.²

At the completion of the 1966 work year, Hollman received $20.83 in vacation pay based on his gross earnings from November 29, 1966 through December 31, 1966. At the same time Blakely received $192.93 in vacation pay based on his gross earnings from March 22, 1966 through December 31, 1966. Both employees asserted that they were entitled to additional vacation pay for 1966 for the portion of the year they spent in military service and to vacation pay for 1964 and 1965. The applicable bargaining agreements³ and company rules to which appellees were subject stated that to be entitled to vacation pay an employee (1) must have been continuously and actively employed for at least six months prior to December 31 of the eligibility year (the year in which the vacation is earned); (2) must have been on the active payroll on December 31 of the eligibility year or, if he were on leave of absence, furlough or in the military service on December 31 of the eligibility year, must have returned to appellant's active payroll and employ before December 31 of the year immediately following the eligibility year;⁴ and (3) must have had gross earnings⁵ during the eligibility year to which to apply certain set percentages to arrive at the proper compensation.⁶

In accordance with these guidelines Pratt & Whitney refused appellees any vacation pay for 1964 — even though they had gross earnings during the year — inasmuch as they were not on the active payroll as of December 31, 1964 and did not return to the company's active payroll and employ during 1965. In addition, since appellees were not on the active payroll as of December 31, 1965 and had no gross earnings during that year, they received no vacation pay for 1965. Both employees were on the active payroll as of December 31, 1966, however, and thus were awarded vacation pay for 1966 based on their actual gross earnings during that year. In response to Pratt & Whitney's determination to award them no further vacation pay, Hollman and Blakely filed this action in district court, alleging that the company's policy deprived them of their rights under Section 9 of the Universal Military Training and Service Act. The district court, though rejecting appellees' claims for vacation pay for 1965 and the portions of 1964 and 1966 that they spent in military service, held that under Eagar v. Magma Copper Co., 389 U.S. 323, 88 S.Ct. 503, 19 L.Ed.2d 557 (1967), appellees were entitled to vacation pay for 1964 based on their actual gross earnings during that year. Accordingly, the court awarded Hollman $206.77 and Blakely $45.53, with interest at six percent from date of judgment. The sole question before the Court in this appeal by Pratt & Whitney is whether the trial court erred in granting vacation pay for 1964.⁷

At the heart of this controversy is Section 9 of the Universal Military Training and Service Act, the pertinent provisions of which follow:

(a) Any person inducted into the armed forces under this title * * * for training and service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service * * * shall be entitled to a certificate to that effect upon the completion of such period of training and service, which shall include a record of any special proficiency or merit attained. * * *

(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position (other than a temporary position) in the employ of any employer and who (1) receives such certificate, and (2) makes application for reemployment within 90 days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year —

* * * * * *

(B) if such position was in the employ of a private employer, such person shall —

(i) if still qualified to perform the duties of such position, be restored by such employer or his successor in interest to such position or to a position of like seniority, status, and pay; or

(ii) if not qualified to perform the duties of such position by reason of disability sustained during such service but qualified to perform the duties of any other position in the employ of such employer or his successor in interest, be restored by such employer or his successor in interest to such other position the duties of which he is qualified to perform as will provide him like seniority, status, and pay, or the nearest approximation thereof consistent with the circumstances in his case, unless the employer\'s circumstances have so changed as to make it impossible or unreasonable to do so * * *.

* * * * * *

(c) (1) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section shall be considered as having been on furlough or leave of absence during his period of training and service in the armed forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.

(2) It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.

Pratt & Whitney argue that vacation pay is an "other benefit" under Section 459(c) (1) of the Act and assert that a veteran's entitlement to vacation pay therefore is limited by the statute to those rights "offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence." Under appellant's analysis of the Act, an employer who denies a returning veteran vacation pay has not infringed upon his rights so long as he has treated the veteran precisely the same as he would have treated an employee on furlough or leave of absence for the same period of time that the returning veteran was in the service. Since under the applicable bargaining agreement and Pratt & Whitney's rules and procedures an employee on furlough or leave of absence for the period that Hollman and Blakely were in the military service would have received no vacation pay for 1964, appellant asserts it follows as a matter of law that appellees were not entitled to vacation pay for 1964 and that the district court thus erred in granting it to them.

This proffered path, however, was barricaded by the Supreme Court in Eagar v. Magma Copper Co., supra, which was decided per curiam on the authority of Accardi v. Pennsylvania R. Co., 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966).⁸Accardi arose out of a tugboat fireman's assertion that his employer was required by what is now Section 9 of the Act⁹ to include his years in the armed forces in calculating his separation allowance, which increased in proportion to the length of time an employee had rendered "compensated service." The Second Circuit¹⁰ read the statute as distinguishing between rights flowing from "seniority" and "fringe benefits." With regard to seniority rights, the Court held that veterans were entitled to be treated as if they had not left their civilian employment. "Fringe benefits," in the Court's view, were governed by the clause of Section 9(c) (1) dealing with "insurance or other benefits," which placed the returning veterans in no better position than an employee furloughed or on leave of absence for non-military reasons. Since the applicable bargaining agreement did not treat time spent by employees on furlough or leave of absence as "compensated service,"...