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October 20, 1977


The opinion of the court was delivered by: CONNER


 This action by plaintiff Harold Steven Chernoff (Chernoff) against his employer, Pandick Press, Inc. (Pandick), charging violation of 38 U.S.C. § 2021 by failure to accord him, on his return from military service, the seniority to which he was entitled, was bench tried in two parts. Following the first trial on the issue of liability, the Court rendered an Opinion, published at 419 F. Supp. 1192, ruling in favor of Chernoff. The present Opinion incorporates the Court's findings and conclusions, pursuant to Rule 52(a), F.R.Civ.P., following the second trial on the issue of damages.

 The factual background of the case is set forth in detail in our earlier Opinion and need not be reiterated here. The Court found that Chernoff was entitled to a position of seniority over his coworker, Richard Santapola, so that, in layoffs according to seniority, he should have been laid off for only such periods as Santapola was. Santapola was not laid off at all during the period from December 20, 1970 to the time of the second trial on February 3, 1977, whereas Chernoff was laid off during the periods set forth in the following table, in which periods Santapola's base pay and overtime earnings were as indicated: Santapola's Santapola's Overti me Chernoff's layoffs Base Pay Pay 12/20/70-3/14/71 $ 2,410.62 $ 112.64 5/16/73-5/21/73 237.81 10.67 9/9/73-11/15/73 2,798. 90 371.60 12/7/73-12/26/73 839.67 147.78 1974 (except first week) 13,113.08 1,791.42 1975 (all) 14,345.88 3,330.40 1/1/76-12/26/76 15,055.01 2,353.7 9 12/26/76-1/23/77 953.73 155.29 Total thru 1/23/77 $49,754.70 $ 8,273.59

 In cases similar to the present, the damages to be awarded a returning serviceman who has been denied proper seniority have been measured by the base pay and overtime pay received by another employee in the job classification in which the serviceman should have been employed. See, e.g., Paredez v. Pillsbury Co., 259 F. Supp. 493 (C.D. Cal. 1966).

 Although overtime work at Pandick was normally on a volunteer basis, Chernoff testified that he sought and unfailingly accepted all opportunities for overtime work, and his employment records appear to support that claim. While he was employed, he regularly performed roughly twice as much overtime work as Santapola. However, the Court cannot accept his contention that, for this reason, he should recover, as lost overtime pay, double the amount of overtime pay Santapola received. There is no evidence that during the periods when Chernoff was laid off there was more overtime work available than Santapola accepted. The Court therefore can credit Chernoff with no more overtime pay than Santapola received. However, the Court finds that had Chernoff been employed during his layoff periods, he would have earned at least this much in overtime pay.

 The Court concludes that, for lost base pay and overtime pay up to January 23, 1977, Chernoff is entitled to recover from Pandick the sum of $58,028.29.

 After January 23, 1977, Chernoff lost base pay at a rate of $317.91 per week. On May 10, 1977, in order to cut off the further accumulation of damages, this Court ordered Pandick to reemploy Chernoff within 10 days with "all the benefits and privileges of a journeyman operator whose seniority in that job classification dates from March 15, 1969." Pandick has presumably complied with that order. However, assuming that employment was available for Santapola at Pandick between January 23, 1977 and the date of Chernoff's reemployment, Chernoff is entitled to recover additional lost base pay and overtime pay measured by the based pay and overtime pay Santapola received during that period.

 Pandick strenuously urges that Chernoff's voluntary withdrawal from membership in the Printing Press Assistants' and Offset Workers Union (the Union) on October 22, 1974 made him ineligible for employment by Pandick, and that he therefore should recover nothing by way of lost earnings and benefits after that date. The Court finds that Chernoff withdrew from the Union only because he had long been unable to get work at Pandick and wished to be free of the burden of paying union dues. He continued thereafter to telephone the Union periodically to seek work at Pandick or at some other printer, on the reasonable assumption that if he obtained a job, his membership could be reinstated immediately. The Court concludes that under these circumstances, it would be unfair to cut off his right of recovery because of his resignation from the Union.

 A similar conclusion was reached by the Court of Appeals in Loeb v. Kivo, 169 F.2d 346, 350 (2d Cir. 1948), an action under a predecessor statute, 50 U.S.C.A. Appendix § 308(e). There the Court ruled that the fact that the plaintiff, after being denied reemployment by defendant on his return from service, had become a member of a partnership which required him to devote his entire time to the business, thereby rendering him no longer available for the employment he had been denied, did not cut off his right to recover damages for such denial.

 Vacation Pay

 Under Paragraph 18 of the collective bargaining agreement between Pandick and the Union, each employee is entitled to "vacation credits" for each shift worked, in accordance with a schedule setting forth dollar amounts varying in accordance with the classification of the employee (apprentice, etc.), his length of time in the classification, the type of press worked and the shift, these amounts being roughly proportionate to his base pay. These vacation credits are paid by Pandick into a Vacation Depository Fund, and the amounts accumulated therein for each employee are paid to him at the time of his vacation. The vacation credits are thus merely a form of deferred compensation for work performed.

 The vacation pay should therefore be included in the amount of lost wages which Chernoff is entitled to recover. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 263 (5th Cir. 1974), an action under Title VII, which is comparable in purpose and plan; see Acha v. Beame, 531 F.2d 648, 655-56 (2d Cir. 1976).

 In the case of Santapola, his vacation pay averaged approximately 9.1% of his base pay during the periods when Chernoff was laid off, and it appears reasonable to assume that if Chernoff had worked during those periods his vacation pay would have been the same.

 Multiplying Chernoff's lost base pay of $49,754.70 by 9.1% yields a product of $4,527.68, which represents the amount of vacation pay which Chernoff lost. Although vacation pay is not payable until vacation time, the great bulk of Chernoff's vacation pay accrued and was payable in past years, and the balance will probably be payable by the time the judgment is satisfied. Thus Chernoff is entitled to a judgment calling for its immediate payment, bringing his gross direct recovery up to $62,555.97.

 Foster v. Dravo Corp., 420 U.S. 92, 43 L. Ed. 2d 44, 95 S. Ct. 879 (1975), and Lipani v. Bohack Co., 546 F.2d 487 (2d Cir. 1976), are not to the contrary. In those actions under the immediate predecessor statute, 50 U.S.C.A. App. § 459, the courts ruled that a returning veteran is not entitled to receive the vacation benefits he would have earned if he had been employed during the period of his military service because these benefits were intended as deferred compensation for work actually performed, rather than accruing with the mere passage of time, as an incident of the undiminished job seniority which the statute guarantees.

 By contrast, Chernoff is not claiming the vacation pay he would have received had he been working at Pandick during his absence in the military. Instead, he seeks only those benefits which would have accrued after his reemployment, had he been ...

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