Dougherty v. General Motors Corporation

• Decision Date: 08 August 1949
• Docket Number: No. 9785.,9785.
• Citation: 176 F.2d 561
• Parties: DOUGHERTY v. GENERAL MOTORS CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

176 F.2d 561 (1949)

DOUGHERTY v. GENERAL MOTORS CORPORATION.

No. 9785.

United States Court of Appeals Third Circuit.

Argued February 10, 1949.

Decided August 8, 1949.

Edward V. Ryan, Asst. U. S. Atty., Newark, N.J. (Alfred E. Modarelli, U. S. Atty., Newark, N.J., on the brief), for appellant.

Thomas L. Morrissey, Jersey City, N. J. (Carpenter, Gilmour & Dwyer, Jersey City, N. J., John Backes, New York City, Patrick A. Dwyer, Jersey City, N. J., on the brief), for appellee.

Before BIGGS, Chief Judge, and O'CONNELL and KALODNER, Circuit Judges.

O'CONNELL, Circuit Judge.

We are asked to decide whether, under the provisions of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 308, and of the union contracts here involved, a reemployed serviceman was entitled to vacation pay for the year of his return. Like the district court, we hold that he was not.

Virtually all the facts were stipulated. In October, 1938, Dougherty began working for, and remained an active employee of, General Motors Corporation (hereinafter referred to as "General Motors") until his induction into the United States Army on January 30, 1943.¹ Honorably discharged in April, 1946, he made timely application for restoration, and did resume work with General Motors on June 3, 1946.

When Dougherty was inducted, the 1942 contract then in effect between General Motors and the union of which he was a member contained four paragraphs governing the allowance of vacation pay. Identifiable by number as 110, 110a, 110b, and 110c, those paragraphs, in so far as is here material, set forth that "for the year 1942" each employee with one year of seniority would receive forty hours of pay, and each with five years of seniority would be given eighty hours of pay. The amount of such pay was determined by multiplying 40 or 80, whichever applicable, by the rate of pay per hour which the employee was earning on July 1, 1942. It was further provided that the employee had to be working on July 1, 1942, or had to meet other standards.² Dougherty did receive forty hours of vacation pay before his induction, so that he had received all vacation allowances "which had accrued and to which he was entitled up to the time of his entry into" the Army.

Had the vacation pay provision of the 1942 contract been continued without change so as to be in effect in 1946, Dougherty doubtless would have been granted vacation pay for that year; for he was working for General Motors on July 1, 1946, had a rate of pay on that day, and possessed the necessary length of service. The contracts subsequent to 1942, however, did embody changes in the vacation pay sections, including paragraph 110, our primary concern in this case. Thus, the National War Labor Board in 1943 approved by directive an amendment to the paragraph, by which 48 hours of vacation pay instead of 40 were granted; the union and General Motors further amended it in 1944 so that the eligibility of an employee depended upon his working "during the pay period beginning June 26, 1944 and ending July 2, 1944 in any General Motors Plant," rather than his working on the single day July 1; and substantially the same provision was retained in 1945.

In 1946, another collective bargaining agreement was made, in which this vacation paragraph again was altered and renumbered as 151. The new standards for vacation pay, as far as they are here relevant, were: (a) at least one year of seniority by July 1, 1946; (b) work during the pay period of June 24-June 30, 1946; and (c) compensation on the basis of graduated percentages of the gross earnings of the employee "for the period from January 1, 1945 to December 31, 1945."³ Satisfying the requirements listed above as (a) and (b), Dougherty was an "eligible" recipient; but, since Dougherty had no gross earnings as an employee of General Motors in 1945, General Motors took the position that, the stated percentage of zero being zero, Dougherty was entitled to nothing. We are not unaware that, since few veterans were restored to their positions with General Motors until the closing months of 1945 at the earliest, the interpretation of the contract which General Motors espouses and the district court adopted means that veterans restored to duty with that company receive little, if any, vacation pay for the year 1946.

The background for the changes made in the 1946 contract does not appear in the stipulation of facts; and General Motors, apparently under the impression that such statements might be detrimental to its position, has objected to the notation in Dougherty's brief that the reason for basing 1946 payments upon 1945 earnings was "to eliminate the 1946 portion of a strike period when all employees had no...