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DWYER v. CROSBY CO.

January 3, 1947

DWYER
v.
CROSBY CO. (UNITED STEELWORKERS OF AMERICA, CIO, et al., Interveners)



The opinion of the court was delivered by: KNIGHT

Petitioner alleges that, from July 21, 1941, to the present date, he has been in respondent's employ as a stamping operator; that, on April 16, 1943, he enlisted in the Armed Forces of the United States and, on December 20, 1945, was honorably discharged; that he made application for reemployment and was reemployed on January 7, 1946; that, under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., and under Article VII of a union contract between respondent and United Steel Workers of America, of which he is a member, he is entitled to one week's vacation consisting of forty-four hours pay, or approximately $ 38.60, which respondent refuses to give him.

Respondent denies that petitioner has been in its employ since July 21, 1941, that he is entitled to the vacation pay, that it has failed and refuses to comply with the cited statute and union contract. As a defense, respondent alleges that, under said union contract, 'vacation or vacation pay is earned and credited to an employee solely on the basis of time actually worked;' that such vacation plan was inaugurated by respondent in or about June, 1941, 'based on and applicable solely to persons on the actual payroll as of June 30 (1941) for twenty-six weeks prior actual work;' that this policy and plan has been practiced by respondent and concurred in by petitioner and his union since the inauguration thereof; that this plan as practiced is incorporated in and made part of the union contract set forth in the petition.

 Respondent further alleges that, on June 28, 1943, it paid to petitioner his accumulated vacation pay for time actually worked by him prior to his enlistment.

 By an order of this court, granted on October 1, 1946, United Steel Workers of America, CIO, and Philip Murray, as President of United Steel Workers of America, CIO were permitted to intervene.

 Intervenors make the same allegations as the petitioner and also quote from Article VII of said union contract.

 Article VII is quoted as follows:

 '1) Each employee who prior to July 1, 1946, who has been in the employ of the company for at least twenty-six (26) weeks shall receive during such year one week's vacation consisting of 44 hours' pay and every employee who has been in the employ of the company for five or more years shall receive two weeks' pay at the rate of 88 hours. Those employees who are working more than 44 hours per week during the period March 13, 1946 to June 30, 1946 shall receive that equivalent as their vacation pay period. Duration of the strike from January 21, 1946, to March 13, 1946 is to be considered time worked.

 '2) The hourly pay shall be the average hourly earnings received during the twelve (12) pay periods prior to June 1st of each year.

 '3) The right to allotment of vacation period is exclusively reserved to Management in order to insure the orderly operation of the plant.'

 Petitioner alleges that his petition is made under Section 8(e) of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 308(e). This provides:

 'In case any private employer fails or refuses to comply with the provisions of subsection (b) or subsection (c), the district court of the United States for the district in which such private employer maintains a place of business shall have power, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, to specifically require such employer to comply with such provisions * * * .'

 Respondent is a private employer maintaining a place of business in the City of Buffalo, New York. It appears that, on January 7, 1946, petitioner was restored to his former position as stamping operator. 50 U.S.C.A.Appendix, § 308(b) (B) required the employer to restore him 'to such position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so.'

 Subsection (c) provides:

 'Any person who is restored to a position in accordance with the provisions of paragraph * * * (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of training and service in the land or naval 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 establish rules and practices relating to employees on ...


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