John P. Locaynia v. American Airlines, Inc., a Corporation

457 F.2d 1253 79 L.R.R.M. (BNA) 3036 , 67 Lab.Cas. P 12,537 John P. LOCAYNIA et al., Plaintiffs-Appellants, v. AMERICAN AIRLINES, INC., a corporation, Defendant-Appellee. No. 24861. United States Court of Appeals, Ninth Circuit. March 17, 1972. As Amended April 13, 1972. Rehearing Denied May 30, 1972. Asher W. Schwartz, New York City (argued), J. A. Darwin, San Francisco, Cal., O'Donnell & Schwartz, New York City, Darwin & Riordan, San Francisco, Cal., for plaintiffs-appellants. Carl J. Schuck (argued), George Christensen, of Overton, Lyman & Prince, Arthur H. Porche, Area Representative, Los Angeles, Cal., Arthur M. Wisehart, New York City, Robert L. Shelby, Asst. Reg. Administrator, San Francisco, Cal., for appellee. Before CARTER and HUFSTEDLER, Circuit Judges, and BATTIN, * District Judge. HUFSTEDLER, Circuit Judge: 1 Locaynia, Golden, and Specht filed an action against their employer, American Airlines ("American") to recover vacation pay claimed due them under the terms of a collective bargaining agreement and 50 U.S.C. Sec. 459 (b) and (c) (Universal Military Training and Service Act). They appeal from a summary judgment in favor of their employer. 2 Locaynia…

Locaynia, Golden, and Specht filed an action against their employer, American Airlines (“American”) to recover vacation pay claimed due them under the terms of a collective bargaining agreement and 50 U.S.C. § 459 (b) and (c) (Universal Military Training and Service Act). They appeal from a summary judgment in favor of their employer.

Locaynia was hired on November 4, 1964, worked for the airline until he entered military service on May 22, 1965, and was reemployed on his return from the service on June 5, 1967. Golden was employed on March 29, 1965, entered the service on October 22, 1965, and was reemployed on October 16, 1967, after his separation. Specht was employed on April 27, 1964, entered the service on May 22, 1965, and was reemployed on June 12, 1967, when he had completed service.

Each appellant received his vacation benefits for the years 1964 and 1965. American refused to grant any of appellants’ vacation benefits in 1967, the year of their reemployment. In 1968, Locay-nia was given seven days paid vacation, and Golden received three days.

Appellants contend that each was entitled to ten days paid vacation in 1967 and 1968 in accordance with the terms of 50 U.S.C.…

Dissenting Opinion.

This case involves the application of 50 U.S.C. App. § 459(b) and (c) 1 to vacation pay. The three appellants were employed by appellee. After continuous employment, all three were inducted into the military service in 1965. Each applied for return to appellee’s employment within ninety days of the termination of his active duty status in 1967. All three were reemployed that same year.

Appellants were paid by appellee for vacation time accrued by them under the collective bargaining agreement in 1964 and 1965, when they left to enter the military. Appellee allowed appellants vacation pay for the work year 1967, in accordance with the collective bargaining agreement, considering appellants’ 1967 military service time as a leave of absence, for purposes of determining the number of vacation days to which appellants were entitled.

It was stipulated by the parties that the maximum of vacation days to which appellants were entitled under the bargaining agreement was ten. This is based on their length of service, including military service, with appellee. Thus, appellee concedes that, had the addition of military service time to length of serv *1257 ice caused…