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LIPANI v. BOHACK CORP.

December 21, 1973

Anthony E. LiPani et al., Plaintiffs
v.
Bohack Corporation, Defendant.


Bartels, D.J.


The opinion of the court was delivered by: BARTELS

BARTELS, D.J.:

This is a consolidated action instituted by two employees of the defendant, Bohack Corporation ("Bohack"), under the Universal Military Training and Service Act, 50 U.S.C. App. ยง 459 ("the Act"), to recover vacation benefits for the year they returned from military service to the employment of the defendant. Bohack claims that plaintiffs are not entitled to vacation pay because they did not satisfy the work requirement of the defendant's collective bargaining agreement for the year they returned and therefore did not earn the claimed benefits. The issue is whether or not vacation pay is a perquisite of "seniority" status as the term is used in the Act, despite any work provisions of the collective bargaining agreement. Since the facts are stipulated, each side has moved for summary judgment, and for the reasons stated below, we grant defendant's motion and deny plaintiffs' motion.

 Plaintiffs are veterans, who left the employment of Bohack to enter the armed forces of the United States, and after completion of their military service, they were reinstated by Bohack to their former positions. LiPani was employed by Bohack as a warehouseman on May 6, 1969, until his entry into the military service on July 14, 1969 (2 months and 8 days). He was reemployed by Bohack on October 18, 1971, and by the end of the calendar year 1971, had worked for Bohack approximately 4 months and 20 days. In June, 1972, he was given his first 2-week paid vacation and full sick leave allowance. Loesch was employed by Bohack as a warehouseman on March 10, 1969, and worked until July 31, 1969 (4 months and 20 days) when he left for military service. He was reemployed on October 18, 1971, and at the end of the calendar year 1971, had worked approximately 7 months and 2 days. In December, 1971, Loesch received his first week of paid vacation, and in June, 1972, received a 2-week paid vacation plus full sick leave allowance.

 Bohack credited both plaintiffs with time spent in the service for purposes of computing seniority, for though neither plaintiff had been employed for six months before induction, upon reemployment after discharge both were determined to have seniority in excess of two years. At the end of 1971, Loesch had actually worked for Bohack in excess of six months, and since employees with two years seniority who work six months are entitled to one week's paid vacation, Loesch was given this benefit. However, LiPani had not worked for six months, and was determined not to have earned a vacation for 1971. Loesch now sues for additional vacation pay of one week and sick leave allowance for the year 1971, and LiPani sues for a full two weeks vacation pay and sick leave allowance for 1971.

 The relevant portions of Section 459 of the Act read as follows:

 
"(b) Reemployment rights
 
In the case of any such person who, in order to perform such training and service, has left or leaves a position * * * in the employ of any employer and * * * makes application for reemployment within ninety days after he is relieved from such training and service * * * --
 
* * *
 
(B) if such position was in the employ of a private employer, such person shall --
 
(i) * * * be restored by such employer * * * to such position or to a position of like seniority, status, and pay;
 
* * *
 
(c) (1) 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 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 * * * (B) of subsection (b) * * * should be so restored in such manner as to give him such status in his 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 pertinent portions of the collective bargaining agreement *fn1" concerning vacation rights and sick leave allowances clearly indicate in Article X(A), (B), (F), (G), (H) and (I) that employees were entitled to vacation pay and sick leave allowance earned during the year predicated upon work and not by the mere passage of time. For instance, in Article X(A) it is provided that employees must be in the employ of the Company "for a period of six (6) months of continuous working service" before being entitled to one week's vacation with pay. Subparagraph (B) provides that vacation pay must be computed "on the basis of the employees regular straight time weekly earnings including all premiums, if any." In subparagraph (F) it is provided that an employee entitled to a vacation who is laid off for lack of work ...


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