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GENTILE v. UNITED STATES TRUCKING CORP.

January 10, 1973

John Gentile, Plaintiff,
v.
United States Trucking Corporation, Defendant and Third-Party Plaintiff, v. Saverio Aiello et al., Trustees of Teamsters Local 814 Moving and Storage Welfare Fund, Third-Party Defendants


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

This is an action for money damages brought by a National Guard Reservist against his civilian employer, the United States Trucking Corporation (hereinafter "Trucking"), under the provisions of the Veterans Reemployment Rights Act, as amended, 50 U.S.C. App. § 459 (1970). The employer has impleaded the Trustees of Teamsters Local 814 Moving and Storage Welfare Fund (hereinafter "Local 814 Welfare Fund") as third-party defendants. The complaint charges defendant employer with violation of 50 U.S.C. App. § 459 (g) (4), relating to the rights of Reservists and National Guardsmen to return to their civilian employers without loss of "seniority, status, pay and vacation" as a result of time spent in inactive duty training with their military units.

Plaintiff has moved herein for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. There would not appear to be any genuine issue as to any material fact, and the following facts are not disputed:

 1. Plaintiff Gentile was employed by defendant Trucking as a "Helper" on a daily shape-up basis from June 1, 1962, to December 2, 1963, at which time he entered military service for initial active duty for training. Plaintiff was reinstated in June 1964 by defendant Trucking in his former position.

 2. Plaintiff continued to work for defendant Trucking as a Helper until July 16, 1966, when he entered military service for two weeks' inactive duty training, which training was concluded July 31, 1966.

 3. Plaintiff resumed his duties with defendant Trucking on the next working day after the completion of his inactive duty training on July 31, 1966.

 4. On September 30, 1965, Local 814, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, entered into a Collective Bargaining Agreement with Empire State Highway Transportation Association Inc. on behalf of certain employers, including defendant Trucking, for the period 1965-1968 for the Sears-Roebuck Company job. Article 21 thereof provided that after July 1, 1965, the employer would contribute a stated sum of money to the third-party defendant Local 814 Welfare Fund for every hour of work for which an employee covered by the Collective Bargaining Agreement, including plaintiff, was paid. Article 21 thereof further provided that "in consideration of such contributions the employees so paid for shall be entitled to the benefits furnished by the Welfare Plan of said Fund in accordance with the rules and regulations adopted and promulgated by the Trustees of the Fund."

 5. A booklet published by the third-party defendant Local 814 Welfare Fund in effect in 1966 provided that an employee

 
"will become eligible for benefits on the first day of the third month following the month in which [the employee] worked 72 or more hours. . . . [The] insurance will terminate on the following dates, whichever occurs first:
 
"(1) The last day of the second calendar month following the month in which [the employee works] less than 72 hours for Contributing Employers."

 6. Plaintiff was ill and did not work for four days of the week ending July 16, 1966. As a result of his illness and the period of two weeks of his inactive duty training, plaintiff worked for and was paid by defendant Trucking for only 56 hours of work for the month of July 1966.

 7. Plaintiff again was ill and was hospitalized at King's Highway Hospital in Brooklyn, New York, from October 4 through October 11, 1966, inclusive. Plaintiff was presented by agents of the aforesaid hospital with a bill in the amount of $437.10, and paid that amount in full.

 8. Payment of the hospitalization costs described in paragraph 7, above, was denied by the Associated Hospital Service of New York (Blue Cross) on the ground that the third-party defendant Local 814 Welfare Fund had not certified the claim.

 9. Defendant Trucking failed in July of 1966 to make payments to the third-party defendant Local 814 Welfare Fund for the four days plaintiff did not work due to illness and the two weeks plaintiff was on inactive duty training during July.

 10. If defendant Trucking had made such payments to the third-party defendant Local 814 Welfare Fund, plaintiff would have been eligible for hospitalization coverage for the month of October 1966, and the Associated Hospital Service of New York (Blue Cross) would have certified plaintiff's claim ...


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