Franklin J. Austin v. Sears, Roebuck and Co., a Corporation

Before DUNIWAY and HUFSTEDLER, Circuit Judges, and KING, District Judge.

The issue on appeal is whether the appellees, who are veterans reinstated by their employer, Sears, Roebuck and Company (“Sears”), are entitled to vacation benefits in the year of their return from the service, under the provisions of the Selective Service Act of 1967 and the terms of Sears’ collective bargaining agreement. Relying on our decision in Locaynia v. American Airlines, Inc. (9th Cir. 1972) 457 F.2d 1253 , the district court granted summary judgment in the appellees’ favor, holding that their vacation benefits were perquisites of seniority rather than benefits earned by actual work. We reverse. The Sears collective bargaining agreement, unlike the contract considered in Locaynia, based eligibility for vacation benefits on actual work; seniority was a factor in determining the amount of vacation benefits, but not in fixing entitlement.

Appellees contend that under the Selective Service Act of 1967 time served in the military must be treated as time worked for the purpose of computing vacation earned. Each appellee had served in military service the entire twelve months preceding his…