Before L. HAND, AUGUSTUS N. HAND and CHASE, Circuit Judges.
This is an appeal from a judgment, dismissing a petition, demanding $38.60 - vacation pay for one week - alleged to be due under § 8(e) of the Selective Training Act of 1940.*fn1 The United Steelworkers of America, CIO, and Philip Murray, its president, have intervened as co-plaintiffs. The facts as stipulated were as follows. Since December 8, 1941, the respondent, a manufacturing corporation, and the United Steelworkers of America, CIO, had been parties to a series of collective bargaining agreements, one of which was in force in the year 1946. The petitioner, Dwyer, a member of the union, had, from July 21, 1941, been in the employ of the respondent "as a stamping operator"; on April 16, 1943, he enlisted in the United States Army; he was honorably discharged on December 20, 1945; and within ninety days thereafter, that is, on January 7, 1946, he was "restored" to his former "position." He demanded one week's vacation pay which Article VII of the union contract gave to all those "in the employ" of the company for twenty-six weeks before July 1, 1946, but the respondent refused the demand; hence the action. The only parts of the contract contained in the record we quote in the margin.*fn2 The respondent's position is that the word "employ" as used in § 1 of Article VII means only "time worked"; and in support of this it relies upon the last two sentences of the section, which speak of "employees who are working," and of a past period, during which the men were on strike, as one "to be considered time worked." The judge took this view and dismissed the complaint.
Subdivision (b) of § 308*fn3 presupposes that a discharged veteran, who "leaves a position * * * in the employ of an employer," shall not be deemed to have left his "employ." The language is (subsection B): "if such position was in the employ of a private employer, such employer shall restore such person to such position"; it is the "position," not the "employ," to which the veteran is to be "restored." In confirmation of this is the language of subdivision (c) that a veteran so "restored to a position * * * shall be considered as having been on furlough or leave of absence," for an employee "on furlough or leave of absence" is still in his employer's "employ." Nevertheless, subdivision (c) does recognize that by entering the Army the veteran leaves his "position," and that he is entitled only to such "benefits" as are "offered by the employer pursuant to established rules or practices relating to employees on furlough or leave of absence." Hence, although it was unlawful to attempt by contract to provide that a veteran should be deemed not to be "in the employ" of the company while he was serving in the Army, it was not unlawful to deny him vacation, unless it was an "established rule of the company" to give vacation to those who were on "leave of absence."
Turning then to the contract, although § 1 of Article VII gives vacation pay to "each employee who prior to July 1, 1946, has been in the employ of the company for at least twenty-six (26) weeks," it nowhere even intimates that the prescribed period may include any part of the time during which the employee has been "on leave of absence"; and there is not the least antecedent reason to ascribe such a purpose to the parties. Indeed, a priori it would seem highly improbable that they should have thought a man "on leave of absence" entitled to a vacation; for vacations ordinarily presuppose relief or release from work. Be that as it may, it was an essential element of the case that the company have a rule or practice treating employees "on leave of absence" as entitled to include their leave within the twenty-six weeks, and it was not proved. Perhaps indeed, the respondent's position gets some faint support from the fact that it was thought necessary to provide especially that the out-of-work period of the strike should count as "time worked."
If it appeared elsewhere in the contract that the parties had intended all employees "on leave of absence" to be entitled to include their leave in the computation of their right to vacation, the petitioner would be right in invoking subdivision c. There is nothing of the kind. Apparently he supposes that §§ 4 and 5 of Article V have that meaning; if so, he is wrong. The article relates only to rights of seniority, and we should have no warrant for extending it in any way to cover vacations; obviously the considerations which might make it proper that service in the Army should not affect a man's seniority are utterly different from those which should count in computing vacations. Indeed, the statute expressly secured him his seniority, and the provision in § 5 of Article V was unnecessary.