Magma Copper Company, San Manuel Division, a Corporation v. Stephen R. Eagar, Ray F. Stephens, James v. Mork, and Levi D. Jaramillo

Invoking Section 9 of the Universal Military Training and Service Act of 1948, 50 U.S.C. War App., § 459, plaintiffs brought this suit against the Magma Copper Company to recover holiday and vacation pay which they assert is due them.

Magma’s employees were entitled to such pay under a series of contracts entered into between Magma and International Unión of Mine, Mill & Smelter Workers, which represented the employees. The following provisions are pertinent to this case:

Plaintiffs were all employees of Magma immediately before entering into the armed services of the United States. Following their satisfactory completion of service they were restored to proper positions by Magma. The several claims they asserted were virtually the same; the facts were all stipulated and the issues purely legal ones. Those relating to the claim of Stephen R. Eagar are fairly representative. Eagar was continuously employed by Magma from March 12, 1958 until March 6, 1959, when he entered into military service. By the latter date he had already worked in excess of 75% of the shifts available in his vacation earning year (i.e., March 12, 1958 to March 12, 1959). Following his return on May 2, 1962…

(dissenting):

I would grant the appellees’ petition for rehearing. This court’s decision was announced on January 31, 1966. On February 28, 1966, the Supreme Court of the United States decided the case of Accardi et al. v. Pennsylvania Railroad Co., 383 U.S. 225 , 86 S.Ct. 768 , 15 L.Ed. 2d 717 . In that case the Court of Appeals had decided that the severance pay there involved did not concern “seniority, status, and pay” within the meaning of §§ 8(b) (B) and 8(c) of the Selective Training and Service Act of 1940; that it was a “fringe benefit” and subject to whatever contractual provisions the employer had made with the union which was the bargaining agent for the employees. The Supreme Court said, in Accardi, pp. 229-230, 86 S.Ct. p. 771.

In our instant case, two of the employees had worked for almost a year, one lacking only seven days of the year necessary, under the union contract, to earn a paid vacation. Their work was interrupted, thus short of the necessary year, by their entrance into military service. The Supreme Court’s language in Accardi, quoted above, fits their situations exactly. The rights and benefits (paid vacations) which would have automatically accrued to…

ORDER ON PETITION FOR REHEARING

In a petition for rehearing, appellees contend that our decision is contrary to the law as announced in Accardi v. The Pennsylvania R. R. Co., 383 U.S. 225 , 86 S.Ct. 768 , 15 L.Ed.2d 717 (1966). We perceive no conflict.

What the Court said in Accardi regarding the policy of the Act was in the context of claims under Sec. 9(b) (B); the so-called “seniority” provision. It is of course well settled that a veteran’s seniority is not impaired by reason of his military service, but to the contrary “automatically accrues” despite such service. Accordingly, he is “treated as though he had been continuously *322 employed during the period spent in the armed forces.” Accardi , p. 228, 86 S.Ct. p. 771. The Court did not have before it a “fringe benefit” type of claim such as those involved in this case and neither said nor intimated that such claims should be classified as Sec. 9(b) type claims or treated like them.

The petition for rehearing is denied.

380 F.2d 318 MAGMA COPPER COMPANY, SAN MANUEL DIVISION, a corporation, Appellant, v. Stephen R. EAGAR, Ray F. Stephens, James V. Mork, and Levi D. Jaramillo, Appellees. No. 19777. United States Court of Appeals Ninth Circuit. Jan. 31, 1966, Rehearing Denied May 31, 1967. Ralph B. Sievwright, Twitty, Sievwright & Mills, Phoenix, Ariz., for appellant. JoAnn D. Diamos, U.S. Atty., William J. Knudsen, Jr., Asst. U.S. Atty., Phoenix, Ariz., John W. Douglas, Asst. Atty. Gen., Morton Hollander, Atty., Edward Berlin, Atty., Civ. Div., Dept. of Justice, Washington, D.C., for appellee. Before CHAMBERS, Chief Circuit Judge, MADDEN, Judge of the Court of Claims, and KOELSCH, Circuit Judge. KOELSCH, Circuit Judge. 1 Invoking Section 9 of the Universal Military Training and Service Act of 1948, 50 U.S.C. War App., 459, plaintiffs brought this suit against the Magma Copper Company to recover holiday and vacation pay which they assert is due them. 2 Magma's employees were entitled to such pay under a series of contracts entered into between Magma and International Union of Mine, Mill & Smelter Workers, which represented the employees. The following provisions are pertinent to this case: 3…