Pfeifer v. A.F. Lowes Lumber Co.

• Decision Date: 21 December 1955
• Citation: 206 Or. 115,291 P.2d 744
• Parties: , 37 L.R.R.M. (BNA) 2392, 29 Lab.Cas. P 69,704 Dale M. PFEIFER, Respondent, v. A. F. LOWES, LUMBER CO., a corporation, Appellant.
• Court: Oregon Supreme Court

Page 744

291 P.2d 744

206 Or. 115, 37 L.R.R.M. (BNA) 2392,

29 Lab.Cas. P 69,704

Dale M. PFEIFER, Respondent, v. A. F. LOWES, LUMBER CO., a corporation, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Oct. 6, 1955.

Decided Dec. 21, 1955.

John W. Hill, Portland, for appellant. With him on the brief were King, Miller, Anderson, Nash & Yerke, Portland.

Harry George, Jr., Portland, for respondent. On the brief were George & Swink, Portland.

Before WARNER, C. J., and TOOZE, LUSK and BRAND, JJ.

TOOZE, Justice.

This is an action to recover money alleged to be due as vacation pay for the year 1952, brought by Dale M. Pfeifer, as plaintiff, against his employer, A. F. Lowes Lumber Co., a corporation, as defendant. Defendant's general demurrer to plaintiff's complaint was overruled, and, defendant refusing to plead further, judgment was entered in favor of plaintiff. Defendant appeals.

Defendant operates a sawmill at Mollala, Clackamas county, Oregon, and plaintiff is one of its employes. Local 5-40, International Woodworkers of America (C.I.O.) is a voluntary unincorporated labor organization and was, during all the times material to this litigation, the duly certified and acting bargaining agent for all production, maintenance, and transportation employes of the defendant in its sawmill operations at Mollala, excluding office, clerical, and professional employes, guards and supervisors, as to hours, wages, and working conditions, pursuant to the provisions of the National Labor Relations Act.

Plaintiff brought action upon his own claim to vacation pay for the year 1952. In his complaint and as assignee, he also set forth 28 additional causes of action based upon the claims of his coemployes to vacation pay.

On December 8, 1952, an agreement which replaced a prior agreement that expired on March 31, 1952, was entered into between the defendant as employer and Local Union No. 5-40, covering wages, hours, vacations, and other relations between the defendant employer and its employes. This agreement was made effective as of April 1, 1952.

A true copy of the agreement dated December 8, 1952, marked Exhibit 'A', was attached to plaintiff's complaint 'and by reference made a part hereof as though set out in full'. In the light of that fact, the language of the exhibit will control in determining its legal effect, if there be any discrepancy between the averments of the complaint and the terms of the writing. Anderson v. Chambliss, 199 Or. 400, 409, 262 P.2d 298; Somers v. Hanson, 78 Or. 429, 432, 153 P. 43.

The question presented on this appeal must be answered by the interpretation we place upon the contract provisions respecting vacation pay. If we adopt the interpretation placed thereon by defendant, which was rejected by the trial court, we will be compelled to reverse the judgment and order a dismissal of the action.

Under the prior agreement between the parties, an employe was not entitled to two weeks' vacation with 10 days' pay unless he had been employed five years continuously prior to April 1 of the year in which the vacation is taken and had worked 1,400 hours during the vacation base year. Under the agreement of December 8, 1952, the requirement of five years continuous employment was changed to three years. Plaintiff claims that the three-year provision of the new contract applied to vacations during the year 1952; whereas, defendant contends that the three-year provision affects 1953 vacations only, and that the right to vacations in 1952 was determined by the prior agreement, and became fixed and vested both as to employe and employer on March 31, 1952, before the contract of 1952 became effective. That is the dispute between the parties. Plaintiff's several causes of action have as their basis claims to vacation pay for the year 1952, based upon the contract of December 8, 1952.

The provisions of the contract of December 8, 1952, material to our consideration of the matter before us are as follows:

'Article IX--Vacations With Pay

'(a)(1) To be eligible for one week's vacation, an employee must have worked not less than 1400 hours during the vacation base year from April 1 to March 31 of each year, but other employees in the continuous employ of Employer but having worked less than 1400 hours shall receive one week's vacation with pay upon the following basis: Employees having worked not less than 1120 hours shall receive one week's vacation with four days' pay; employees having worked not less than 840 hours shall receive one week's vacation with three days' pay.

'(2) Employees with three or more years of continuous employment prior to April 1 of the year in which the vacation is taken are eligible for two weeks' vacation with ten days' pay if they have worked 1400 hours during the vacation base year. Other employees with such three years continuous employment who have worked less than 1400 hours during the vacation base year and who are in the continuous employ of Employer shall receive two weeks' vacation on the following basis:

'An employee who has worked not less than 1120 hours shall receive two weeks' vacation with nine days' pay.

'An employee who has worked not less than 840 hours shall receive two weeks' vacation with eight days' pay.

'(b) For purpose of vacation, 'continuous employ' is defined as employment uninterrupted by absence due to discharge unless rehired within thirty days, or due to voluntary severance of employment by the employee.

'For the purpose of this provision three (3) years continuous employment is defined to be continuous employ as above defined for three (3) continuous years with the same employer or his predecessor prior to April 1 of the year in which the vacation is taken.

'(c) Time lost as result of an industrial accident and for which the employee receives compensation shall, for vacation purposes, be counted as time worked for the time lost during the period of temporary disability, but limited to the amount of time the employee would otherwise have worked.

'(d) The vacation shall be one week of seven consecutive days and for employees entitled to double vacations shall be two weeks of 14 consecutive days, provided that two-week vacations may be two non-consecutive weeks of seven consecutive days if agreed to by the contracting Union organization with which the Employer has bargained collectively, whether a local union or a District Council.

'(e) Vacations may by given (1) by closing down the operations entirely or by closing down entire shifts at different times, or (2) by staggering vacation weeks on a departmental or individual basis. The Employer may elect either one of the two courses but must announce its choice of procedure by or before May 1, the beginning of the vacation period. The vacation period shall extend from May 1 to November 1, unless otherwise agreed upon by the Employer and the Union Standing or Plant Committee and sanction of the local Union. If the Employer elects to provide vacations by closing down the operations entirely, or by closing down entire shifts at different times it must give 15 days' notice of the vacation week. If the Employer elects to stagger vacation weeks, either on a departmental or individual basis, the schedule of vacations shall be worked out by the Employer but it must give 15 days' notice to employees...