Tynan v. KSTP, Inc.

• Decision Date: 27 April 1956
• Docket Number: No. 36557,36557
• Citation: 77 N.W.2d 200,247 Minn. 168
• Parties: Thomas TYNAN, Respondent, v. KSTP, Incorporated, Appellant.
• Court: Minnesota Supreme Court

Page 200

77 N.W.2d 200

247 Minn. 168

Thomas TYNAN, Respondent, v. KSTP, Incorporated, Appellant.

No. 36557.

Supreme Court of Minnesota.

April 27, 1956.

On Appeal from Clerk's Taxation of Costs

June 1, 1956.

SYLLABUS BY THE COURT.

1. It is a well-recognized rule in the law that the express enumeration of one or more instances of many belonging to the same class impliedly excludes the others.

2. Vacation rights with pay have no legal basis except in contract, nor has liability as to vacation-pay rights, it being wholly contractual.

3. Plaintiff, in his effort to establish his right to earned vacation with pay, sought his relief under the express terms of collective bargaining agreement and upon no other theory or support in pleading, proof, or fact.

4. Plaintiff, having relied upon and proceeded to enforce his claim pursuant to terms of express contract, cannot recover in quantum meruit or base his claim herein on the theory of substantial performance or quasi-contract.

5. Likewise, failure to establish fault on the part of defendant as a basis for his claim bars plaintiff from a quantum meruit recovery.

6. Mutual assent to the continuance of the employer-employee relationship between parties, plaintiff and defendant, for more than 6 months without interruption, after the annual expiration date of September 30, 1949, impliedly renewed the agreement for another annual term.

7. The record supports the inference as legally justifiable that the parties assented to another agreement for a term of the same length with the same salary and conditions of service.

8. Plaintiff as technician performed services for employer continuously for 6 months, the period commencing October 1, 1949, thereby fulfulling the conditions of the vacation terms of the implied agreement in that regard and earning for him 14 consecutive days of vacation with pay which became choate upon end of period.

9. No other, or pro rata, vacation rights are permitted under the terms of said agreement as impliedly continued for another year, plaintiff having failed to meet the required conditions of performing continuous service for one year according to vacation provisions which, if fully performed, would entitle him to 21 consecutive vacation days with pay.

Paul C. Thomas, Thomas, Bradford King & Collatz, St. Paul, Benedict S. Deinard, Leonard, Street & Deinard, Minneapolis, for appellant.

Thomas O. Kachelmacher, Minneapolis, for respondent.

NELSON, Justice.

Plaintiff brought this action in the municipal court of Minneapolis to recover vacation pay allegedly owed him. Plaintiff was employed by KSTP, Incorporated, defendant, as a technician. He had been so employed for approximately 17 years. He had continued his employment without interruption until on or about April 5, 1950, when a strike was called in which it appears that the plaintiff became involved; at least he voluntarily left the employ of the defendant on that date. As a member of Local No. 1216 of the Radio Broadcast Technicians Union, plaintiff's employment rights were prescribed in a collective bargaining agreement between the local and the defendant.

The provisions of said collective bargaining agreement here pertinent are set out below. ¹

The basic principles setting forth the purposes of the collective bargaining agreement may be found in the second paragraph thereof which reads as follows:

'The Employer, the Union and the Employees have a mutual interest in the broadcast industry. Stabilized conditions of employment improve the relationship between the Employer, the Union, the Employees and the Public. All will benefit by harmonious relations and by adjusting any differences on a rational common sense basis and through rational, commonsense methods.'

The agreement was subject to the approval of the international president of the International Brotherhood of Electrical Workers. It was dated January 24, 1949, and approved March 15, 1949. This agreement took effect as of October 1, 1948, for a term of one year.

The agreement provided for an automatic renewal from year to year thereafter unless changed or terminated in the way therein provided. In July of 1949 the union through its representatives served notice on defendant of proposed changes in the agreement. The notice was served more than 60 days prior to October 1, 1949. The proposed changes were as follows: Change in the duration of the agreement; change in wage scales; and change in vacation plans. The proposed change in vacation plans called for an amendment to subd. (b) of section 3.08, Article III, to entitle employees to pro rata vacation pay on leaving 'the employ of the Company either by lay-off or resignation.' The collective bargaining agreement in force at the time of the notice of the proposed change provided that technicians who enter the armed forces of the United States, or technicians who were laid off because of a reduction in the technician staff, should be entitled to receive vacation pay on a pro rata basis for the year under consideration. The change, no doubt, was suggested by the union representatives because it was recognized that the latter provision was exclusionary with regard to the rights of all other members of the technicians staff to receive vacation pay on a pro rata basis for the year under consideration.

1. It is a well-recognized rule in the law that the express enumeration of one or more instances of many belonging to the same class impliedly excludes the others. ²

The negotiation for the proposed changes extended beyond the expiration date of the agreement and continued until the union went on strike April 5, 1950, at which time the plaintiff left the employ of the defendant. On February 14, 1951, the plaintiff commenced this action for the recovery of the alleged portion of his vacation pay which he claims had accrued up to April 5, 1950.

In essence, it is plaintiff's position that the claimed vacation pay had been earned and had accrued during the period he worked for defendant after September 30, 1949. It is defendant's position that section 3.08 by all of its terms and provisions creates a condition precedent which requires full compliance by plaintiff in order to be entitled to any earned vacation pay by reason of continuous service after September 30, 1949, which was the date when the annual term of the collective bargaining agreement expired. It is conceded that the plaintiff continued in the employ of the defendant without interruption through September 30, 1949, and up to April 5, 1950, when he voluntarily left, without returning, because of the strike.

The plaintiff based his suit upon the terms of the agreement dated January 24, 1949, effective for one year beginning October 1, 1948, and continuing through September 30, 1949, which provided that it shall continue in effect from year to year thereafter unless changed or terminated in the way later therein provided. He attached a copy of this agreement to his complaint and alleged that, under the terms of the contract, he was entitled to vacation pay at the rate of $95 per week for each week of vacation to which he might be entitled, and prayed for judgment accordingly. His weekly pay as a technician during his period of service under consideration here was the sum of $95 per week.

Defendant by its answer admitted the existence of the collective bargaining agreement providing for an annual term and automatic renewals; that the plaintiff was a member of Radio Broadcast Technicians Local Union No. 1216, affiliated with the American Federation of Labor, which organization is the labor organization referred to herein as the union; and that the plaintiff, at all times up to April 5, 1950, was one of the employees of the defendant for and on whose behalf the said agreement had been negotiated and executed. Defendant also admitted that the plaintiff had continued his employment as technician for a period of several years prior to his leaving the employ of defendant April 5, 1950, and that a labor dispute had theretofore existed between the union and the defendant due to the notice of proposed changes on defendant by the union in July 1949. ³ Defendant, however, denied plaintiff's right to recover vacation pay in any sum whatsoever on the ground that he had failed to fulfill the conditions of the agreement, which, if met, would entitle him to earned vacation pay.

The court below held the plaintiff entitled to recover from the defendant earned vacation pay on a pro rata basis covering the period beginning October 1, 1949, and ending April 5, 1950, under said section 3.08, subd. (b), of the agreement which provides for an annual vacation of 21 consecutive days with pay. Judgment was entered accordingly, after defendant had moved for amended findings and conclusions of law, or in the alternative for a new trial. This appeal is from the judgment.

The transcript of the testimony as disclosed by the record indicates oral stipulations entered into between counsel for the respective parties and testimony by the plaintiff on direct and cross-examination. The record is clear that the plaintiff was continuously in the employ of the defendant as a technician through September 30, 1949, to April 5, 1950; that no vacation rights for that period had been determined; and that he had no claim to prior vacation rights last determined as of May 1, 1949. He also testified that after April 5, 1950, he was on strike with the union and that he was a striking employee for some months thereafter. It appears from the record that the collective bargaining agreement herein involved was initially entered into in 1946, insofar as the inclusion of the vacation clause is concerned; that it was renewed in the same form in 1948; and that in 1949 the union attempted to have inserted, in the article granting to technicians vacation with pay, a clause granting additional vacation benefits in the event the employees quit or were discharged on a...