The Military Selective Service Act provides that a veteran who
applies for reemployment if still qualified shall be restored by
his employer to his former position "or a position of like
seniority, status, and pay." The Act further assures that benefits
and advancements that would necessarily have accrued by virtue of
continued employment will not be denied the veteran merely because
of his absence in the military service. These provisions, however,
do not apply to claimed benefits requiring more than simple
continued status as an employee.
Held:
1. In this case, the Act's provisions do not entitle petitioner
employee to full vacation benefits for the years he was in military
service, under the terms of a collective bargaining agreement that
conditioned the award of such benefits on the receipt of earnings
during 25 weeks of the previous year, since the vacation scheme was
intended as a form of short-term deferred compensation for work
performed, and not as accruing automatically as a function of
continued association with the company. Pp.
420 U. S.
96-101.
2. Whether petitioner might be entitled to some
pro
rata vacation benefits under a contract provision applicable
to those employees who were unable to accumulate the minimum of 25
weeks' employment because of layoffs should be determined by the
District Court on remand. Pp.
420 U. S.
101-102.
490 F.2d 55, affirmed. ,
MARSHALL, J., wrote the opinion of the Court, in which all other
Members joined except DOUGLAS, J., who took no part in the
consideration or decision of the case.
Page 420 U. S. 93
Opinion of the Court by MR. JUSTICE MARSHALL, announced by MR.
CHIEF JUSTICE BURGER.
Through the Military Selective Service Act, Congress has sought
to protect veterans returning to civilian jobs from being penalized
for having served in the Armed Forces. Section 9 of the Act, 62
Stat. 614, as amended, 50 U.S.C.App. § 459, ensures a returning
serviceman the right to be restored to his job with the same levels
of seniority, status, and pay that he would have enjoyed if he had
held the job throughout the time he was in the military. [
Footnote 1] This case presents the
question whether the statute entitles a veteran to vacation
benefits when, because of his departure for military service, he
has failed
Page 420 U. S. 94
to satisfy a substantial work requirement upon which the
vacation benefits are conditioned.
I
Petitioner, Earl R. Foster, began working full-time for
respondent Dravo Corp. in 1965. He worked 22 weeks for the company
during that year, and earned 20 hours of paid vacation eligibility.
[
Footnote 2] In 1966, he worked
the entire year and earned the standard second-year vacation
benefits, [
Footnote 3] for
which he subsequently accepted payment.
In March of the following year, petitioner took a military leave
of absence from his job. Before leaving, he worked the first seven
weeks of 1967 for the company, and, upon his return some 18 months
later, he worked the last 13 weeks in 1968. Because the collective
bargaining agreement between petitioner's union and Dravo required
employees to work a minimum of 25 weeks in each calendar year in
order to earn full vacation benefits, [
Footnote 4]
Page 420 U. S. 95
Foster was not awarded any benefits for either year. Since that
time, he has continued to work full time for Dravo, and has
received full vacation benefits from the company for each year of
his employment.
Unhappy with the denial of vacation benefits for 1967 and 1968,
petitioner brought suit against Dravo in the District Court for the
Western District of Pennsylvania. [
Footnote 5] He sought credit for full vacation benefits in
both years, claiming that, since he would have earned two vacations
if he had worked for respondent throughout the time he was in the
service, § 9 of the Military Selective Service Act requires that he
be credited with the benefits even though he failed to meet the
25-week work requirement in either year.
The District Court held that, since the vacation benefits in
question did not accrue automatically with continued employment, it
did not violate the statute to deny them to employees on military
leave of absence. The Court of Appeals for the Third Circuit agreed
with the District Court that petitioner had no statutory right to
full vacation benefits. From its examination of the contract and
other related factors, the court concluded that the vacation right
in dispute was not a perquisite of seniority, but an earned
benefit, and was thus unavailable to a returning serviceman who had
not satisfied the work requirement. Noting that a limited
pro
rata vacation provision in the collective bargaining agreement
might provide an alternative basis for petitioner to receive some
vacation benefits for 1967 and 1968, the
Page 420 U. S. 96
court remanded the case to the District Court for further
proceedings on that narrow question. 490 F.2d 55 (1973). We granted
certiorari, 419 U.S. 823 (1974), because of an apparent conflict
with the decisions of the Courts of Appeals for the Seventh and
Ninth Circuits.
See Ewert v. Wrought Washer Mfg. Co., 477
F.2d 128 (CA7 1973);
Locaynia v. American Airlines, 457
F.2d 1253 (CA9),
cert. denied, 409 U.S. 982 (1972). We
affirm.
II
The Selective Training and Service Act of 1940, 54 Stat. 885,
890, which was very similar to the present 50 U.S.C.App. §
459(c)(1), [
Footnote 6]
provided that any person leaving a civilian job to enter the
military would be entitled to be restored to a position of "like
seniority, status, and pay" upon his return unless circumstances
had so changed "as to make it impossible or unreasonable to do so."
The statute further required that the veteran be restored "without
loss of seniority" and be considered "as having been on furlough or
leave of absence" during the period of his military service.
On the first of several encounters with the Act, this Court
interpreted the guarantee against loss of seniority rights to mean
that the veteran's time in the service must
Page 420 U. S. 97
be credited toward his seniority with his employer just as if he
had remained on the job throughout.
Fishgold v. Sullivan
Drydock & Repair Corp., 328 U. S. 275,
328 U. S. 285
(1946). To deny him credit for time spent in the military would
mean that the veteran would lose ground by reason of his absence.
This, the Court stated, would violate the statutory principle that
the serviceman
"does not step back on the seniority escalator at the point he
stepped off. He steps back on at the precise point he would have
occupied had he kept his position continuously during the war."
Id. at
328 U. S.
284-285.
See also Oakley v. Louisville &
Nashville R. Co., 338 U. S. 278,
338 U. S. 283
(1949).
After the
Fishgold decision, Congress reenacted the
statute, adding language that expressly codified the holding in
that case. The amendment provided that a veteran must be restored
to his position with the status that
"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."
62 Stat. 604, 615-616, 50 U.S.C.App. § 459(c)(2).
In subsequent cases, the Court has consistently applied the
statute to assure that benefits and advancements that would
necessarily have accrued by virtue of continued employment would
not be denied the veteran merely because of his absence in the
military service.
McKinney v. Missouri-Kansas-Texas R.
Co., 357 U. S. 265,
357 U. S. 272
(1958). On the other hand, where the claimed benefit requires more
than simple continued status as an employee, the Court has held
that it is not protected by the statute.
See id. at
357 U. S. 273;
Tilton v. Missouri Pacific R. Co., 376 U.
S. 169,
376 U. S. 181
(1964).
In
Accardi v. Pennsylvania R. Co., 383 U.
S. 225 (1966), the Court applied these principles for
the first time to a benefit not traditionally considered a
seniority right.
Page 420 U. S. 98
The dispute in that case concerned a veteran's eligibility for a
severance payment. Under the applicable collective bargaining
agreement, the amount of severance pay due each employee depended
on the length of the employee's "compensated service" with the
respondent railroad. The railroad argued that the Act was
inapplicable because the amount of the severance payment did not
depend directly on seniority. The Court, however, took a broader
view. Looking beyond the narrow characterization of seniority
rights in the collective bargaining agreement, the Court concluded
that the severance payments were not intended as a form of deferred
compensation for work done in the past, but rather as a means of
compensating employees for the loss of rights and benefits
accumulated over a long period of service. Accordingly, the Court
held that the severance payments in that case were "just as much a
perquisite of seniority as the more traditional benefits such as
work preference and order of lay-off and recall."
Id. at
383 U. S.
230.
Two years later, in
Eagar v. Mama Copper Co.,
389 U. S. 323
(1967), the Court applied the statute to a vacation and holiday pay
provision in a collective bargaining agreement. The petitioner in
that case had satisfied all the work requirements for the benefits
in question, but he had not met the further conditions that he be
employed on the one-year anniversary date of his starting work with
the company, and that he be on the payroll for the three months
preceding each paid holiday.
In a per curiam opinion, the Court reversed the judgment for the
company on the authority of
Accardi. Since the petitioner
had met all the contractual work requirements and would have been
eligible for the contested benefits if he had simply remained on
the company payroll, it was unnecessary to consider whether the
work requirements would have barred veterans who had not
Page 420 U. S. 99
met them. On the facts before the Court, the decision fell
within the principle that a returning serviceman must be treated as
if he had kept his job continuously throughout the period of his
military service. [
Footnote
7]
III
Petitioner argues that, under
Accardi and
Eagar, the vacation benefits in this case must be granted
to him as a returning serviceman because the entitlement to a
vacation is not closely correlated to the amount of work actually
performed by the employee. Under the collective bargaining
agreement, a Dravo employee theoretically could earn full vacation
benefits by doing as little as one hour's work in each of 25 weeks
during the year. From this, petitioner concludes that the agreement
really conditions vacation benefits only on continued employment,
and that Dravo therefore could not legally deny him full vacation
benefits for either 1967 or 1968.
This approach would extend the statute well beyond the limits
set out in our prior cases. Generally, the presence of a work
requirement is strong evidence that the benefit in question was
intended as a form of compensation. Of course, as in the
Accardi case, the work requirement may be so insubstantial
that it appears plainly designed to measure time on the payroll,
rather than hours on the job; in that event, the Act requires that
the benefit be granted to returning veterans. But where the work
requirement constitutes a
bona fide effort to compensate
for work actually performed, the fact that it correlates
Page 420 U. S. 100
only loosely with the benefit is not enough to invoke the
statutory guarantee.
We agree with the Court of Appeals that, unlike the severance
payments in
Accardi, the vacation benefits in this case
were intended as a form of short-term compensation for work
performed. Although Dravo employees who work for 25 weeks receive
the same paid vacation rights as those who work a full year, the
collective bargaining agreement provides additional vacation credit
for employees who work overtime for a substantial period. The
benefits under the overtime vacation provision increase with the
amount of overtime worked. In addition, the agreement provides
that, if an employee is laid off during the year and does not work
the requisite 25 weeks, he will be awarded vacation benefits on a
pro rata basis.
These provisions lend substantial support to respondent's claim
that the vacation scheme was intended as a form of deferred
compensation. Petitioner's observation that an employee could, in
theory, earn a vacation under the collective bargaining agreement
with only a few carefully spaced hours of work is not enough to
rebut the plain indication that a full vacation was intended in
most cases to be awarded for a full year's work. [
Footnote 8]
On petitioner's theory of the case, the company would be
required to provide full vacation benefits to a returning
serviceman if he worked no more than one week in
Page 420 U. S. 101
each year; indeed, following this approach to its logical
limits, a veteran who served in the Armed Forces for four years
would be entitled to accumulated vacation benefits for all four
years upon his return. This result is so sharply inconsistent with
the common conception of a vacation as a reward for and respite
from a lengthy period of labor that the statute should be applied
only where it clearly appears that vacations were intended to
accrue automatically as a function of continued association with
the company. Since no such showing was made here, and since
petitioner has not met the
bona fide work requirement in
the collective bargaining agreement, we conclude that § 9 did not
guarantee him full vacation rights for the two years in question.
[
Footnote 9]
IV
In the alternative, petitioner asserts that the statute entitles
him at least to
pro rata vacation benefits for the time he
served Dravo during 1967 and 1968. If he is denied even a
pro
rata share of vacation benefits, petitioner claims he will, in
effect, be penalized for taking a military leave of absence, a
result that the Act was expressly intended to prevent.
We can find nothing in the statute, independent of the rights
conferred in the collective bargaining agreement, that would
justify such a Solomonic solution. The
Page 420 U. S. 102
statute requires that a returning veteran be treated the same as
an employee "on furlough or leave of absence," 50 U.S.C.App. §
459(c)(1), but petitioner's suggestion would grant
pro
rata vacation rights to veterans regardless of whether any
other class of employees would be similarly treated.
Although we reject petitioner's statutory theory, the potential
availability of
pro rata vacation rights enters the case
in a somewhat different way. The collective bargaining agreement
provides
pro rata vacation rights to those employees who
were unable to accumulate the minimum of 25 weeks of employment
because of layoffs. Art. XIV, § 2. In light of this provision, the
Court of Appeals noted that petitioner might have a claim for
pro rata benefits under the agreement. It therefore
remanded the case to the District Court to determine whether
petitioner had adequately preserved that point before the District
Court, and, if so, whether he was entitled to some vacation
benefits. [
Footnote 10]
We agree with the Court of Appeals that, because it was not
litigated at the trial level, this question should be remanded to
the District Court for further proceedings. Accordingly, we affirm
the judgment of the Court of Appeals.
Affirmed.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
Section 9(b) provides a right to reemployment for any serviceman
who
"has left or leaves a position . . . and . . . makes application
for reemployment within ninety days after he is relieved from such
training and service."
Section 9(b)(B)(i) adds that, if the serviceman is
"still qualified to perform the duties of such position, [he
shall] be restored by such employer . . . to such position or to a
position of like seniority, status, and pay."
Section 9(c), which governs the rights of those restored to
positions after return from the service, provides in relevant
part:
"(1) Any person who is restored to a position in accordance with
the provisions of . . . this section 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 . . . this section 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."
[
Footnote 2]
The collective bargaining agreement between Dravo and
petitioner's union, the Industrial Union of Marine and Shipbuilding
Workers of America, AFL-CIO, governed the eligibility conditions
for vacation benefits. In his first year with the company,
petitioner was eligible for four hours of paid vacation for each
month worked, up to a maximum of 40 hours. Art. XIV, § 1.
[
Footnote 3]
Under the collective bargaining agreement, the length of the
vacation earned each year increases with the employee's seniority.
The ordinary second-year vacation is seven days' leave with pay.
After the second year, the vacation increases by one day per year,
for the first five years with the company, and then by one week for
each five years of "continuous employment," to a maximum of five
weeks.
Ibid.
[
Footnote 4]
The agreement provides that, after the first year, an employee
can qualify for a vacation if he has received earnings in at least
25 work-weeks during the calendar year. A vacation earned in one
year can be taken during the next year at a time designated by the
company. When an employee is laid off prior to taking his earned
vacation, the company gives him his vacation pay at that time,
regardless of when his vacation was scheduled.
Ibid.
[
Footnote 5]
Petitioner has been represented by the Government throughout
this action. By statute, the United States Attorney is charged with
representing claimants under § 9 of the Military Selective Service
Act if the claimant reasonably appears entitled to the benefits in
dispute. 50 U.S.C.App. § 459(d).
[
Footnote 6]
The 1940 Act was essentially reenacted in the Selective Service
Act of 1948, 62 Stat. 604. The name of the Act was changed in 1951
to the Universal Military Training and Service Act, 65 Stat. 75. In
1967, it was renamed the Military Selective Service Act of 1967, 81
Stat. 100. It was given its present name, the Military Selective
Service Act, in 1971, 85 Stat. 348. The present §§ 9(b) and 9(c)(1)
have remained largely unchanged since 1940, and § 9(c)(2) has been
preserved in its current form since the reenactment of 1948.
The reemployment provisions of the Act apply not only to those
drafted under the provisions of the Act, but also to men and women
who enlist voluntarily in the Armed Forces, as long as the period
of service does not exceed four, or in certain cases, five years.
50 U.S.C.App. § 459(g)(1).
[
Footnote 7]
The dissenters in
Eagar v. Magma Copper Co. argued that
the statute's protection applied only to rights associated with
seniority.
389 U. S. 323, 325
(1967) (DOUGLAS, J., joined by Harlan and STEWART, JJ.,
dissenting). They would have distinguished between eligibility
based upon being on the payroll on a particular date or for a
particular period from eligibility based upon length of service
with the company. The majority implicitly rejected this
distinction.
[
Footnote 8]
Petitioner's reliance on the treatment of the work requirement
in
Accardi is misplaced. The Court there concluded that
the severance payments were based primarily on the employees'
length of service with the railroad, not on the actual total
service rendered. The putative "work requirement" in that case, the
Court concluded, did not disguise the true nature of the payments
as compensation for the loss of jobs. The
Eagar case
provides even less support for petitioner, since that case did not
involve an unsatisfied work requirement.
[
Footnote 9]
In contrast to the conditions of eligibility for a vacation are
the terms governing the length of the vacation to which an employee
is entitled. As noted above, the length of vacation increases with
the employee's length of "continuous employment" with Dravo, which
is defined in the collective bargaining agreement as "continuous
seniority." Art. XIV, §§ 1, 2. Respondent concedes that the
employee's time in the service must be counted in determining the
length of the vacation that is earned; for the years in which
petitioner has worked the 25 weeks required to earn a vacation, the
length of his vacation has been calculated as if he had been
continuously employed with the company since 1965.
[
Footnote 10]
Even if petitioner is not eligible for vacation benefits as a
purely contractual matter, he may be entitled to
pro rata
benefits under the "other benefits" provision of § 9(c)(1) of the
Act, read in conjunction with the collective bargaining agreement.
Since the statute requires that vacation benefits be granted to
returning veterans on the same basis as they are to those on
furlough or leave of absence, petitioner would be entitled to
pro rata benefits if the layoff referred to in the
collective bargaining agreement includes a furlough or leave of
absence, or is found to be the equivalent of either.