Alvado v. General Motors Corporation

• Decision Date: 18 May 1961
• Citation: 194 F. Supp. 314
• Parties: James ALVADO, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of New York

194 F. Supp. 314

James ALVADO, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.

United States District Court S. D. New York.

May 4, 1961.

As Amended May 18, 1961.

Sidney S. Berman, New York City, for plaintiff.

George A. Brooks, New York City, for defendant. Edward B. Wallace, New York City, of counsel.

RYAN, Chief Judge.

This suit commenced on July 29, 1952 has after repeated prodding by the Court been brought on for trial.

Plaintiff¹, a veteran and an employee of defendant, sues individually and as a member of a class², to recover for vacation allowance for the year 1946 alleged to be due him and other veterans similarly situated. Plaintiff alleges that payment of this vacation allowance was unlawfully refused by defendant, acting under one of the provisions of a collective bargaining contract, which the defendant employer allegedly entered into intentionally, discriminatorily and in violation of Section 8 of the Selective Training & Service Act of 1940, Appendix § 308(c) of Title 50 U.S.C.A., which is now embodied in Section 459 Title 50 U.S. C.A.Appendix.

Summary judgment was granted defendant and plaintiff's cross motion for similar relief was denied in 1954. On appeal, judgment was reversed and the action was remanded for trial "* * * on the issue of defendant's intention to discriminate against veterans" (229 F.2d 408, 412). Familiarity with that opinion is assumed.

The trial has now been had on this issue as framed by the Circuit Court of Appeals.

Plaintiff was first employed by General Motors, Fisher Body Division, at Tarrytown, New York, some time in 1929; his seniority date is March 3, 1935; he was granted a military leave of absence on February 24, 1944 and he was reinstated on October 29, 1945.

Shortly after plaintiff's reinstatement, on November 21, 1945, The International U.A.W.-C.I.O. went on strike and it was not until 113 days later that the strike ended.

During the lengthy strike, negotiations were held between the duly certified union³ and defendant; on March 13, 1946⁴ agreement was reached settling the dispute.

A provision of that agreement, Defendant's Exhibit "A", paragraph 151, the focal point of the instant suit, is as follows:

"Vacations:

"(151) Any employe with one or more years' seniority as of July 1, 1946, who works during the pay period beginning June 24, 1946, and ending June 30, 1946, in any General Motors plant or who has been laid off after May 1, 1946, shall be eligible for vacation allowance on the following basis:

"(a) An employe with one year but less than three years' seniority as of July 1, 1946, shall be compensated on the basis of 2% of his gross earnings for the period from January 1, 1945, to December 31, 1945.

"(b) An employe with three years' but less than five years' seniority as of July 1, 1946 shall be compensated on the basis of 3% of his gross earnings for the period from January 1, 1945, to December 31, 1945.

"(c) An employe with five years' or more seniority as of July 1, 1946 shall be compensated on the basis of 4½% of his gross earnings for the period from January 1, 1945 to December 31, 1945.

Each factory employe having one or more years' seniority who is ineligible for vacation pay under the first paragraph above, shall be entitled to a vacation allowance as provided in Paragraphs a, b and c, above, based upon his seniority as of July 1, 1946, provided he has worked during 26 pay periods between the dates of July 2, 1945 and June 30, 1946 in General Motor plants. The vacation allowance of such employes shall be based upon their gross earnings in all General Motors plants during the calendar year 1945.

"Payments shall be made not later than July 31, 1946."

Vacation allowance became a practical subject of collective bargaining in 1940, when it was for the first time included in an agreement for the benefit of hourly rate employees. Subsequent to 1940 and until 1948 it was renegotiated each year. The variations in the vacation allowance provisions of the various contracts for the years 1940, 1941, 1943, 1944 and 1945, are for our purposes slight; on occasion, however, the War Labor Board's assistance was required in reaching agreement on this provision.⁵ In 1946, paragraph 151 was modified from past vacation allowance provisions in that the vacation allowance due each employee was based on earnings during the previous calendar year (1945) rather than the fiscal year as in the past, and further in that it was calculated on the basis of a percentage of gross earnings.

It is this change which plaintiff contends was in violation of Section 308(c), Title 50, United States Code, in that it was made by defendant with bad faith and intention to discriminate.

Plaintiff received a vacation allowance of $7.50 under the 1946 agreement on the same basis as all other employees. However, if a vacation allowance computed by the 1945 formula had been again agreed upon by the defendant and the Union, plaintiff would have received approximately two weeks' salary as a vacation allowance (his seniority in 1946 was almost eleven years).

On the trial defendant reasserted the defenses of the statute of limitations, laches and res judicata. We will briefly consider these defenses before proceeding to the merits of the suit.

The defense of the statute of limitations was pleaded by an amended answer filed on November 16, 1956. It is the plaintiff's contention that this defense has been waived by defendant's failure to assert it prior to the intermediate appeal. However, amendments are allowable after appeal. Moore's Federal Prac., Vol. 3, page 340, para. 1511; Boweles v. Biberman, 3 Cir., 1945, 152 F.2d 700; Emich Motors Corp. v. General Motors Corp., D.C.Ill.1954, 15 F.R. D. 354, 59 A.L.R.2d 159.

The Congress in the Selective Training & Service Act of 1940 did not prescribe a time in which an action arising thereunder may be brought. This void is properly filled by the application of the pertinent New York statute of limitations. Section 1652, Title 28 United States Code; Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 219, 39 L.Ed. 280; Schiffman Bros. Inc. v. Texas Co., 7 Cir., 196 F.2d 695, 697; Rockton & Rion Ry. Co. v. Davis et al., 159 F.2d 291, 293.

The New York statute of limitations to be applied is Section 48(2)⁶ New York Civil Practice Act, which provides for a six-year period of limitation. Leonia Amusement Corp. v. Loew's Inc., D.C., 117 F.Supp. 747, 758.⁷

Both parties agree that this six-year New York Statute of Limitations applies. The defendant in urging the defense of the statute of limitations sets forth four different dates, on any of which it urges the period of limitation correctly can be said to have commenced. They are as follows: the date the collective bargaining contract between the defendant and the Union was ratified, March 19, 1946; the date plaintiff signed the local agreement in his capacity of shop committeeman for the local union at Tarrytown, New York, May 3, 1946; the date plaintiff attended a meeting in which the vacation allowance provision was discussed, June 13, 1946; and July 11, 1946, the date plaintiff was paid his vacation allowance.

The collective bargaining contract of March 19, 1946 provided for the vacation allowance to be paid, "not later than July 31, 1946."

Generally, the purpose of Congress in enacting the pertinent provisions of The Selective Training & Service Act of 1940 was to protect veterans by placing them in the same position they would have been in, with regard to certain protected employment benefits, had they not been called into the Service. Assuming that the plaintiff and the class he seeks to represent have a meritorious claim, it would not have arisen under the Act until they had been deprived of a "benefit" which the Act endeavored to protect. The 1946 agreement as to the defendant and the Union represented a binding expression of specific intention as to how vacation allowances were to be paid. However, the 1946 agreement may be likened to an anticipatory breach of contract in that the plaintiff could have sued after the date of the agreement or waited until he was actually affected by that agreement. The other three dates the defendant reasons should be used in the application of the statute of limitations merely tend to establish that Alvado personally had explicit knowledge of the method of computing the vacation allowance. This is of no moment as this action is brought as a class action. There is no way we can determine against what members of the class the period of limitation would militate and what members it would not affect adversely. We must assume that some employees might have been paid as late as July 31, 1946 as provided by the 1946 agreement; the defense of the statute of limitations is accordingly not a bar to this action. The case of Leonick v. Jones & Laughlin Steel Corp., 2 Cir., 258 F.2d 48, is distinguishable from the instant suit, although its application would not change our decision as to this defense of the statute of limitations.

This Court's consideration on remand of the defense of res judicata has been precluded by the Court of Appeals as it distinguished the cases the defendant relies on for this defense from the instant action. The defense of laches was asserted in the original answer and as such was made part of the record on appeal. Although the Court of Appeals did not expressly rule on the merits of the defense of laches, its opinion cannot be construed to warrant this Court's consideration of that defense. If, indeed, its consideration were within a proper exercise of this Court's power, the defense of laches would not be considered a bar to this suit. Reconstruction Finance Corp. v. Harrisons & Crosfield, 2 Cir., 1953, 204 F.2d 366, 37 A.L.R.2d 1117.

The opinion of the Court of Appeals represents the ground rules for this trial after remand; it is within that opinion that the trial gains direction. Specifically, and we quote from...