The opinion of the court was delivered by: HENDERSON
JOHN O. HENDERSON, Chief Judge.
This case has been submitted to the court on an agreed statement of facts.
Mr. Messina was first employed by Consolidated Freightways Corporation of Delaware, in Buffalo, New York, on April 24, 1962, as a casual (or temporary) dock worker. Mr. Messina worked from time to time in that capacity until September 30, 1963, when he was transferred to the regular payroll and became a regularly employed dock worker with seniority dating from that date.
Mr. Messina left his employment with Consolidated on February 15, 1965, for the purpose of performing military training and service, and was on that date inducted into the Armed Forces of the United States.
On January 26, 1967, Mr. Messina satisfactorily completed his period of military training and service and received a certificate so indicating. Mr. Messina applied for reemployment with Consolidated within the time prescribed by section 9 of the Universal Military Training & Service Act, and, on February 6, 1967, was reemployed by Consolidated as a dock worker at Buffalo, New York, at an hourly rate of pay of $3.29.
On March 11, 1967, upon application, Mr. Messina was granted a temporary leave of absence for personal reasons. On March 28, 1967, Consolidated notified Mr. Messina to return to work from that absence on April 3, 1967, or to show cause as to why he was unable to so report for work. In that notification, it was stated that failure to return to work, or to show a justification why it was not possible to do so, would result in Mr. Messina's removal from the seniority list. No reply to this notification was received from Mr. Messina and he did not report to work on April 3, 1967. Accordingly, Mr. Messina's name was removed from the seniority list at Buffalo and, in practical effect, his employment with Consolidated terminated. At the time of Mr. Messina's termination of employment, if he were entitled to any vacation, he would receive pay in lieu thereof.
During his employment with Consolidated, Mr. Messina was a member of the Teamsters Union and, at the time he entered and returned from military service, his wages and working conditions were governed by the National Master Freight Agreement and the New York State Teamsters Joint Council Freight Division Local Cartage Supplemental Agreement. At page 34 of the National Master Freight Agreement, Article 15 thereof provides that employees who enter military service shall be accorded all rights and privileges guaranteed by law. At page 73 of the New York State Supplemental Agreement, Article 50 provides for vacations. That article has been consistently interpreted and enforced as follows. Regular employees who work at least 150 days in the contract year receive one week's paid vacation during the twelve month period next following each of their first two years of employment (computed from the date upon which they were hired), and receive two weeks' paid vacation during the twelve month period next following each of their third and subsequent years of employment.
The "contract year" here involved runs from August 1 of each year to July 31 of the following year.
(A copy of Article 15 and Article 50 are attached hereto as Exhibit "A".
Between February 6, 1967, when Mr. Messina returned from military training and service, and the time his employment was terminated, he worked twenty-six (26) days. But for Mr. Messina's performance of military training and service, he might have been available for work, and possibly could have worked, 134 days between August 1, 1966 (the beginning of the contract year) and February 6, 1967, the date he actually returned to work. Had Mr. Messina actually worked those 134 days, he would have worked a total of 160 days during the contract year. Accordingly, at the time his employment was terminated, Mr. Messina would have been entitled to receive pay for two weeks' vacation. Article 56 of the New York State Supplemental Agreement provides that the standard guaranteed workweek shall be 40 hours. Therefore, two weeks vacation pay (80 hours) at Mr. Messina's hourly rate of pay of $3.29 would be $263.20.
On or about March 11, 1967, Mr. Messina made application to Consolidated for two weeks paid vacation. Consolidated refused Mr. Messina's claim because he had not actually worked 150 days during the contract year.
The Selective Service Act of 1967 provides, at Title 50 App. § 459(c):
(1) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) [of this section] shall be considered as having been on furlough or leave of absence during his period of training and service in the armed 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 established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.
(2) It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) [of this section] should be so restored in such manner as to give him such status in this employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.
The issue presented can be stated as follows: Is a contract requirement, which establishes as a prequisite to vacation time that the worker be employed a certain number of days, a denial of rights secured to the veteran by the above quoted statute? Until recent years, courts have endeavored to distinguish between seniority rights and collateral benefits, and have rather uniformly held that vacation was a type of collateral benefit to which the returning veteran was not entitled unless a fellow employee on leave of absence for a similar length of time would receive the same benefit. Magma Copper Co. v. Eagar, 380 F.2d 318 (9th Cir. 1967). See generally Alvado v. General Motors Corp., 229 F.2d 408 (2d Cir. 1956), cert. denied, 351 U.S. 983, 76 S. Ct. 1050, 100 L. Ed. 1497 (1956); Dwyer v. Crosby Co., 167 F.2d 567 (2d Cir. 1948); Siaskiewicz v. General Electric Co., 166 F.2d 463 (2d Cir. 1948); Cushnier v. Ford Motor Co., 89 F. Supp. 491 (E.D. Mich. 1950); Brown v. Watt Car & Wheel Co., 91 F. Supp. 570 (D.C. Ohio 1949), aff'd, 6 Cir., 182 F.2d 570, cert. denied, 340 U.S. 875, 71 S. Ct. 121, 95 L. Ed. 636 (1950); Woods v. Glen Alden Coal Co., 73 F. Supp. 871 (M.D. Pa. 1947). But see Mentzel v. Diamond, 167 F.2d 299 (3rd Cir. 1948); McLaughlin v. Union Switch & Signal Co., 166 F.2d 46 (3rd Cir. 1948) and Rydberg v. Great Northern Ry. Co., 12 F.R.D. 108 (D.C. Minn. 1951). This neatly compartmentalized analysis concerning the rights of the returning veteran to benefits, however, was upset by the decision of the United States Supreme Court in Accardi v. Pennsylvania R.R., 383 U.S. 225, 86 S. Ct. 768, 15 L. Ed. 2d 717 (1965). There the railroad had not included, in determining the severance allowances due the returning veterans, the time that they had spent in the armed forces in arriving at the length of compensated service. The Court of Appeals reversed a judgment in the plaintiffs' favor and held that severance allowances were fringe benefits. The Supreme Court, however, rejected the classification and held for the veterans, saying at page 228, 86 S. Ct. at page 771:
"The language of the 1940 Act clearly manifests a purpose and desire on the part of Congress to provide as nearly as possible that persons called to serve their country in the armed forces should, upon returning to work in civilian life, resume their old ...