Litwicki v. Pittsburgh Plate Glass Industries, Inc., 74-1174
| Decision Date | 11 December 1974 |
| Docket Number | No. 74-1174,74-1175,Nos. 74-1174,No. 74-1175,74-1174,s. 74-1174 |
| Parties | 87 L.R.R.M. (BNA) 3213, 75 Lab.Cas. P 10,521, 1 Employee Benefits Ca 1516 Frank S. LITWICKI, Appellant in, v. PITTSBURGH PLATE GLASS INDUSTRIES, INCORPORATED, Appellant in |
| Court | U.S. Court of Appeals — Third Circuit |
Carla A. Hills, Asst. Atty. Gen., Richard L. Thornburgh, U.S. Atty., Robert E. Kopp, John K. Villa, Attys., Dept. of Justice, Washington, D.C., for Frank S. Litwicki.
Hugh M. Finneran, Pittsburgh, Pa., for Pttsburgh Plate Glass Industries, Inc.
Before FORMAN, ALDISERT and ROSENN, Circuit Judges.
This appeal presents the question whether benefits under a funded noncontribution pension plan are seniority rights which, by statute, a private employer must accord returning veterans as though they had remained on the job during the period of their military service. See Selective Training and Service Act of 1940, ch. 720, 8, 54 Stat. 890, as amended, Selective Service Act of 1948, ch. 625, 9, 62 Stat. 614, 50 U.S.C. App. 459 (1970) ().
The plaintiff, a veteran represented by the United States Attorney pursuant to 50 U.S.C. App. 459(d)(1970), brought this action to secure pension benefits which he alleges are wrongfully being denied him by his employer, defendant pittsburgh Plate Glass Industries, Incorporated (PPG). Specifically plaintiff claims that PPG, both in determining whether his pension vested and in computing the amount of his pension benefits, must give him 'continuous service' credit for the entire period he spent in military service. On cross-motions for summary judgment, the United States District Court for the Western District of Pennsylvania denied defendant's motion and entered summary judgment for the plaintiff, disposing of the case as follows:
(1) For purposes of determining whether plaintiff's pension vested, plaintiff is entitled to 'continuous service' credit for the entire length of his military service.
(2) For purposes of computing the amount of plaintiff's pension, plaintiff is entitled to 'continuous service' credit only for the portion of his military service which coincided with open hostilities during the Korean War.
Plaintiff appealed and PPG cross-appealed.
The facts have been stipulated and are not in dispute. Plaintiff's first tour of duty in the armed forces of the United States extended from January 27, 1947, until June 14, 1948. He initially became an employee of PPG on January 22, 1951, and continued in its employ until February 2, 1954, when he volunteered during the Korean War for additional military service. This second tour of duty ended on November 26, 1957, after which plaintiff promptly returned to employment with PPG. Plaintiff remained in PPG's employ until September 29, 1969, the date of his retirement.
Under the pension agreement 1 between PPG and plaintiff's union, an employee must accumulate ten years of 'continuous service' before his pension vests. 'Continuous service' is computed according to the method set forth in Part I, section 3(B)(1) of the pension agreement:
Effective for the calendar year 1964 and thereafter, the number of hours actually worked as an Employee in the plants during any calendar year shall be divided by 125; the resulting quotient (rounded off to the nearest integer) shall constitute the number of 1/12 the of a year of continuous service for which the Employee shall be credited for such calendar year; provided, however, that an Employee shall not receive continuous service credit of more than one year in any calendar year. Except (for certain military service, union activity, temporary service in a supervisory or salaried position, jury duty, and absence caused by work-related injury or disease), no continuous service shall be credited for any period not actually worked as an Employee in the plants.
For the period 1950 through 1963,
continuous service in any calendar year shall be credited at the rate of 1/12 of a year for every full 135 hours actually worked as an Employee in the plants during such calendar year, provided, however, that an Employee may not receive continuous service credit of more than one year in any one calendar year. Except (for certain military service, union activity, temporary service in a supervisory or salaried position, and, after 1954, jury duty and absence caused by work-related injury or disease), no continuous service shall be credited for any period not actually worked as an Employee in the plants.
Part I, section 3(C) of the pension agreement makes specific provision for employees who take a leave of absence to serve in the armed forces. 2
Where an Employee, other than a temporary Employee, enters the military service of the United States, is discharged or relieved from active service under conditions other than dishonorable, and returns to active employment within ninety (90) days after such discharge or relief, such absence shall not constitute a break in continuous service, but for the purpose of computing the amount of his pension, only the period of service rendered in time of war or pursuant to a national conscription law plus ninety (90) days shall be considered, and years of continuous service shall be credited at the rate of 1/12 of a year for each calendar month of such period of service.
In determining whether plaintiff's pension vested and in calculating the amount of benefits due thereunder, PPG gave plaintiff 'continuous service' credit only for his 12 months of military service during the Korean War. PPG refused to credit plaintiff's 33 months of military service after the cessation of active hostilities. Credit was denied on the basis that such military service was neither pursuant to conscription or first enlistment, 3 nor rendered during time of war. As a result, plaintiff did not meet the 10-year vesting requirement under the pension agreement and was denied pension benefits.
The district court concluded that the vesting provision of the pension agreement 'deals with a right of seniority or status under Sec. 9(b)(B)(i) of the Act (50 U.S.C. App. 459(b)(B)(i) (1970)), and that (PPG) is required by the Act to restore plaintiff to the status and seniority he would have occupied had he been in continuous service with the employer during the term of his military service.' However, the amount of plaintiff's pension benefits, the district court held, was not an incident of seniority. 'The amount of the pension was subject to a work requirement and was to be determined in accordance with the (pension agreement).' Although we affirm, our rationale is different from that used by the district court in concluding that plaintiff's rights under the pension agreement had vested. 4
The Act provides that a private employer must restore a veteran upon his return from military service to his former position 'or to a position of like seniority, status, and pay.' 50 U.S.C. App. 459(b)(B)(i) (1970). Any person so restored to employment
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 (so restored to employment) 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.
50 U.S.C. App. 459(c)(1), (2) (1970).
Although our primary focus is on the Act, we must carefully consider the provisions of the...
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