The opinion of the court was delivered by: RYAN
This suit commenced on July 29, 1952 has after repeated prodding by the Court been brought on for trial.
a veteran and an employee of defendant, sues individually and as a member of a class,
to recover for vacation allowance for the year 1946 alleged to be due him and other veterans similarly situated. Plaintiff alleges that payment of this vacation allowance was unlawfully refused by defendant, acting under one of the provisions of a collective bargaining contract, which the defendant employer allegedly entered into intentionally, discriminatorily and in violation of Section 8 of the Selective Training & Service Act of 1940, Appendix § 308(c) of Title 50 U.S.C.A., which is now embodied in Section 459 Title 50 U.S.C.A.Appendix.
Summary judgment was granted defendant and plaintiff's cross motion for similar relief was denied in 1954. On appeal, judgment was reversed and the action was remanded for trial '* * * on the issue of defendant's intention to discriminate against veterans' (229 F.2d 408, 412). Familiarity with that opinion is assumed.
The trial has now been had on this issue as framed by the Circuit Court of Appeals.
Plaintiff was first employed by General Motors, Fisher Body Division, at Tarrytown, New York, some time in 1929; his seniority date is March 3, 1935; he was granted a military leave of absence on February 24, 1944 and he was reinstated on October 29, 1945.
Shortly after plaintiff's reinstatement, on November 21, 1945, the International U.A.W.-C.I.O. went on strike and it was not until 113 days later that the strike ended.
During the lengthy strike, negotiations were held between the duly certified union
and defendant; on March 13, 1946
agreement was reached settling the dispute.
A provision of that agreement, Defendant's Exhibit 'A', paragraph 151, the focal point of the instant suit, is as follows:
'(151) Any employe with one or more years' seniority as of July 1, 1946, who works during the pay period beginning June 24, 1946, and ending June 30, 1946, in any General Motors plant or who has been laid off after May 1, 1946, shall be eligible for vacation allowance on the following basis:
'(a) An employe with one year but less than three years' seniority as of July 1, 1946, shall be compensated on the basis of 2% of his gross earnings for the period from January 1, 1945, to December 31, 1945.
'(b) An employe with three years' but less than five years' seniority as of July 1, 1946 shall be compensated on the basis of 3% of his gross earnings for the period from January 1, 1945, to December 31, 1945.
'(c) An employe with five years' or more seniority as of July 1, 1946 shall be compensated on the basis of 4 1/2% of his gross earnings for the period from January 1, 1945 to December 31, 1945. Each factory employe having one or more years' seniority who is ineligible for vacation pay under the first paragraph above, shall be entitled to a vacation allowance as provided in Paragraphs a, b and c, above, based upon his seniority as of July 1, 1946, provided he has worked during 26 pay periods between the dates of July 2, 1945 and June 30, 1946 in General Motor ...