Division of Labor Law Enforcement, Dept. of Indus. Relations v. Ryan Aeronautical Co.

• Decision Date: 28 September 1951
• Docket Number: No. 166054,166054
• Citation: 106 Cal.App.2d Supp. 833,30 A.L.R.2d 347,236 P.2d 236
• Court: California Superior Court
• Parties: 106 Cal.App.2d Supp. 833, 29 L.R.R.M. (BNA) 2027, 30 A.L.R.2d 347, 20 Lab.Cas. P 66,624 DIVISION OF LABOR LAW ENFORCEMENT, DEPARTMENT OF INDUSTRIAL RELATIONS v. RYAN AERONAUTICAL CO. Appellate Department, Superior Court, San Diego County, California

Page 236

236 P.2d 236

106 Cal.App.2d Supp. 833, 29 L.R.R.M. (BNA) 2027,

30 A.L.R.2d 347, 20 Lab.Cas. P 66,624

DIVISION OF LABOR LAW ENFORCEMENT, DEPARTMENT OF INDUSTRIAL RELATIONS v. RYAN AERONAUTICAL CO.

No. 166054.

Appellate Department, Superior Court, San Diego County, California.

Sept. 28, 1951.

B. Kenneth Goodman, San Diego, for appellant.

Pauline Nightingale, Edward M. Belasco and Leon H. Berger, Los Angeles, for respondent.

BURCH, Judge.

Defendant appeals from a judgment for $107.52, representing an employee's vacation pay. The employment of plaintiff's assignor by the defendant was under the provisions of a collective bargaining agreement signed by defendant, The Ryan Aeronautical Company, a corporation, and the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 506, an affiliate of the Congress of Industrial Organizations.

Article XVII of the agreement has to do with 'Leaves with Pay, Vacation, Sick Leave, Etc.' It provides, 'Each hourly paid employee upon the completion of a year's service shall be granted during the following twelve month period a leave of absence with pay at straight time rate plus any applicable shift differential, of twelve (12) eight (8) hour work days (ninety-six (96) hours) which may be used by the employee as vacation, and/or sick leave. * * * Employees with more than one year's service will be given credit for the pro rata part of the year worked past their anniversary and/or accrual date when laid off because of a reduction in the working forces. * * *'

Plaintiff's assignor, Donald Ellis Wescoat, was employed November 8, 1948, by defendant as a shipping clerk at the rate of $1.12 an hour, and continued in this employment through October 31, 1949. Without fault on his part the employment was discontinued by the employer because of a reduction in working forces. It is stipulated that if the plaintiff's assignor is entitled under the contract to vacation with pay, he is likewise entitled to pay in lieu thereof in the amount of the judgment, $107.52.

It is the contention of defendant that the quoted clause of the collective bargaining agreement discloses an intent by the contracting parties to make the right of the employee to vacation with pay dependent upon the completion to the letter of a full year's service, and implies a provision that there can be no credit in favor of the plaintiff until the full year has expired.

We assume that the contract clause controls and its applicability is established. Literal performance would have been complete after five more working days. The trial court applied to this issue the doctrine of substantial performance, found that there had been substantial performance, and rendered the judgment. Our sole question is whether the trial court has reasonably and properly applied to this part of the contract the doctrine of substantial performance.

The contention of the defendant assumes that the clause must be read as stating a condition precedent to the right to recovery. In this respect we believe the clause is ambiguous and does not necessarily purport to declare a condition precedent. It was conceded at the trial that the clause was inserted in the contract to accomplish continuous and faithful service and as an inducement to the employee to remain in the employment. Under these circumstances, the object having been substantially procured, the benefits of which have inured to the employer, equity and justice would seem to require a liberal construction of the clause as a promise rather than a condition precedent. In this connection it has been stated: "Courts are disinclined * * * to construe the stipulations of a contract as conditions precedent, unless compelled by the language of the contract plainly expressed.' Front St. [M. & O. R.] Co. v. Butler, 50 Cal. 577; Deacon v. Blodget, 111 Cal. 418, 44 P. 159 and particularly so when the result would be to work a forfeiture. Antonelle v. Kennedy & Shaw Lumber Co., 140 Cal....