Foster v. Dravo Corporation – Oral Argument – January 20, 1975

Media for Foster v. Dravo Corporation

Audio Transcription for Opinion Announcement – February 18, 1975 in Foster v. Dravo Corporation

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Warren E. Burger:

We’ll hear arguments next in 73-1773, Foster against Dravo Corporation.

Mr. Sachse.

Harry R. Sachse:

Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to the Court of Appeals for the Third Circuit.

The question presented by the case is whether a requirement of a collective bargaining agreement that an employee work not less than 25 weeks in the prior year to receive a vacation can be used to prevent a returning veteran from receiving a vacation in the year of his return and in the year after his return.

The Court of Appeals held that the company could deny vacations to the veteran for failure to meet this 25-work week requirement, it’s our position that this interpretation keeps a veteran from returning to his employment without loss of seniority status or pay and it’s in contravention of 50 U.S.C. 459, the Selective Service Act.

I’ve had a chart passed around which I’ve also supplied to opposing counsel which I’ll turn to in a minute and I think will help clarify the — what really happened in this case.

William H. Rehnquist:

I take it that’s illustrative only, isn’t it?

Harry R. Sachse:

It’s only illustrative.

That’s correct.

I’ve decided to use instead of a big display that seemed unwieldy.

Potter Stewart:

Is it continuing escalator here?

Harry R. Sachse:

That’s right.

Potter Stewart:

The true continuing escalator.

Harry R. Sachse:

Well, we argue that a continuing escalator principle should apply in this case.

The contract in question has a 25-work week requirement but as to veterans, this is all that the contract says, this is on — in the appendix page 48.

It says, “An employee inducted into the Armed Forces of the United States shall be given the minimum re-employment rights granted him under the Selective Service Act as amended.

So the question then is —

Lewis F. Powell, Jr.:

I’m just curious Mr. Sachse.

I gather this being Selective Service Act is only for a conscripted army.

Harry R. Sachse:

No, that’s not so.

It applies to — to reserve units and it applies to —

Lewis F. Powell, Jr.:

Well, how about to new volunteers?

Harry R. Sachse:

— to volunteers in the army.

Lewis F. Powell, Jr.:

It does?

To new volunteer army?

Harry R. Sachse:

Yes, it does.

Yes it does.

Warren E. Burger:

A volunteer, I suppose, is inducted in the same sense that a draftee is inducted, isn’t he?

Harry R. Sachse:

Well, there are different sections of the act but they apply the exact same rule.

Byron R. White:

You mean, anybody can say to his work time he’s been a volunteer for the army it would be years but they never are coming back?

Harry R. Sachse:

That’s right.

And the Act was passed in 1941 with the idea that a lot of people would be volunteering and not just that and to encourage people to —

Potter Stewart:

Volunteering for a career in the army?

Like what if he say —

Harry R. Sachse:

No.

Potter Stewart:

— as a volunteer for 30 years.

Harry R. Sachse:

No, their limits on how many years if applies drafted I think its two years volunteer to something, I don’t recall the details —

Potter Stewart:

But they are short.

Harry R. Sachse:

There are limits there and there are also limits on how quickly you have to re-apply within 90 days of being released after you apply to the same.

Lewis F. Powell, Jr.:

I might say Military Selective Service Act is a little misleading, isn’t it?

Harry R. Sachse:

Well that cites at 10 on the appendix —

Lewis F. Powell, Jr.:

To that Act?

Harry R. Sachse:

Well, its part of that Act but it — but it covers more than that.

Byron R. White:

Right now, right now if you volunteer for a full hitch in the army, it — it doesn’t have to do with you involved here, this Act upon us.

Harry R. Sachse:

I don’t want to make a definite statement on that.

The Act applies — the Act applies to more than just draft.

I know it applies to reserve units.

Lewis F. Powell, Jr.:

If it didn’t apply to the volunteer army, this would be rather just this case, wouldn’t it?

It’s a statute if the decision here is to apply that.

Harry R. Sachse:

But it’s really, it’s just.

It’s useless for me to speculate about whether it applies in a pure volunteer situation.

There’s no question in this case that it does apply to this employee.

Now, if you turn to the chart, I’ll show you what happens with this employee and it’s a fairly typical situation.

He went to work on August 5th, extreme left of the chart.

During the first 22 weeks, he received no vacation.

During the next year, he received a vacation of approximately three days based on the amount of work in the prior year under provision that is only there for initial employees.

During the next year, he had served enough, so that he was a full-fledged employee getting regular vacation pay which would — which is seven days.

So, they get even in the third year but during that third year, he went into the army, into the navy actually.

He begins almost two years of military service.

Harry R. Sachse:

He’s paid when he goes into the navy.

His vacation benefits are earned up to that point.

So, we have no quarrel about old — about benefits prior to that date.

Potter Stewart:

I’m not sure I follow you.

Harry R. Sachse:

On March 6, 1967 —

Potter Stewart:

Yes.

Harry R. Sachse:

— he begins his military service and he’s paid 56 hours of vacation benefit.

Now, let me just proceed and I think you will follow me.

He then is in navy for about a year and a half or almost two years.

When he returns, he gets no vacation benefit, no vacation at all during that first 13-week period and he gets no vacation during the entire next year under this contract.

It’s full work year and the result for that first of all, to put it in some simplified way but I think this is what the Act is really about from his standpoint because he went into the service.

His having to go through the whole business of being a rookie again of having a year and a half before he works up to getting a vacation again.

Potter Stewart:

No, he doesn’t even get the benefit of a rookie because —

Harry R. Sachse:

That’s right.

Less —

Potter Stewart:

— the rookie got to pro rata of 20.

Harry R. Sachse:

That’s correct.

Potter Stewart:

20 hours.

Harry R. Sachse:

He doesn’t even get the pro rata that a rookie would get.

Potter Stewart:

Right.

Harry R. Sachse:

Now, the company says that this is just a straight application of the contract because in these 13 weeks, when he came back, he hadn’t serve 25 weeks in the prior year, then in the full year, when he comes back, he hadn’t serve 25 weeks at the plant in that year and so this is the way the contract works.

Now, our position to really just get to the heart of it right at the beginning, our position is that where a company bases its vacation benefits on a work requirement such as 25 weeks in a year which is just half of the year’s work, but what they’re really doing the way the employee see it and the real effect of what they’re doing is saying that a person who’s a steady employee of the company, who’s there working every year, gets a vacation every year, after he’s gone through his initial period and that under this Court’s decision on the Selective Service Act and under the language of the Act.

This is part of seniority and status, of longevity in the company and when he comes back, he shouldn’t be required to sit there and re-earn his right to a vacation.

He should start getting vacations the year he comes back to work for the company and certainly, I can see problems in the first year where he can play around, that he worked just three weeks that year, that he worked almost the whole year but here, even in the second year, he received no vacation.

Potter Stewart:

Is the maximum vacation 56 hours?

Harry R. Sachse:

No, it goes up depending on how many years he’s been in employment.

Potter Stewart:

I see.

Harry R. Sachse:

And the company is not dispute that the way of figuring the maximum vacation is continuous and he would get credit for his years in the service for that (Voice Overlap) just arguing that qualification for it, 25-week qualification.

Warren E. Burger:

Is your argument — does your argument one of essentially of linking vacation rights to seniority?

Harry R. Sachse:

That’s correct.

Warren E. Burger:

On his return.

Harry R. Sachse:

Our argument makes a distinction in vacations and I think it has an advantage to it and that it I think can get the lower courts out of the kind of mess that they’ve been in, in trying to work out every detail of every contract.

Our argument is this and we think it’s what the Act calls for and what the decision that this Court calls for.

That where a company makes a close correlation between hours worked and vacation pay, so that for every 24 hours work, you get three hours towards a vacation, something like that.

Then all the employees know it.

They know they’re not getting rewarded for being a continual employee but just each hour they got this little amount of extra pay.

Potter Stewart:

And that’s compensation really.

Harry R. Sachse:

And in that, we say, it’s compensation.

It’s not seniority, it’s compensation but when there’s not that kind of one-to-one ration, when the real question is whether a man has been a steady employee and if he is, he could then say 25 weeks where the average person probably put in 50.

Here, he gets same vacation with his 25 weeks, 30 weeks, 35 weeks, so forth and in that situation, what you’re really looking at is seniority in the plan and a man should not lose his vacation because he’s been in military service in that situation.

William H. Rehnquist:

Does the record show Mr. Sachse what the typical number of weeks put in per year was by a worker would say five years seniority?

Was it the kind that he were even expect to work 49 or 50 weeks a year was 25 or 30 more likely?

Harry R. Sachse:

I think there is data in the record on worksheets of particular employees junior to him, 47 weeks, the week — the year that he was there beforehand, I believe is typical.

It was stipulated that he would have worked more than 25 weeks in each of the years that he was in the military service and that people junior to him had worked more than 25 weeks in each of those years but there’s sufficient data in the record to show, it’s also stipulated that he was not a temporary or part-time employee.

And there’s sufficient data in the record to show that this was a steady job and he still works there.

William H. Rehnquist:

I would suppose —

William J. Brennan, Jr.:

What do you believe did petitioner receive while he was in the service?

Harry R. Sachse:

I don’t know.

It’s not in the record.

I think we can all assume he received whatever it is that the military gives during that time.

It’s our position that it would be a can of worms to get into that because you then have to start dealing with employees who’ve been in combat and what do you — how do you count the leave that a person gets when he’s in Vietnam or something like that.

Potter Stewart:

Well, there is such a thing as a terminal leave in the military which they used to be and I think that they will have two-and-a-half days a month, is that still true?

Harry R. Sachse:

I just don’t know.

I assume he did get some leave in the military.

We certainly don’t argue that he received no leave in the military and we don’t ask that he be paid —

William H. Rehnquist:

Let me interrupt you just a minute Mr. Sachse.

Harry R. Sachse:

Yes.

William H. Rehnquist:

I would assume that by the Government’s own theory, it might make a difference whether the typical number of weeks worked was say 30 and/or 50 that if the most a man could expect to work during the year were 30-32 weeks and the company required 25, then it might be more analogous to a kind of an earned credit type of thing.

Harry R. Sachse:

Well, then I understand the point you’re making.

That is not the Government’s theory for this reason and in the Accardi case.

Harry R. Sachse:

This Court pointed that in a — in a scheme for a severance pay that was based on years of service in the year of service and the year of service for so many months of service and the month of service was a month in which so many days of service that it could work out where a person that only had 10 or 12 days of service and it would still be counted as a year of service.

Now, the Court rejected arguments in that case that that was very untypical sort of thing that a man would be fired if he was working that little and the Court concentrated on the proposition that that the scheme itself shows that that’s not a one-to-one or not a close ratio at all between the amount of vacation and the hours worked.

Now, I think the facts of this case and as their worksheets in the appendix that will show this would show that the 25 weeks was nowhere near a typical work year that the 47 weeks or 50 weeks was much closer to it but we don’t suggest that the Court should get into that in every case.

One of the problems in this kind of case that the total amount of money that you’re talking about is usually small in any individual case and that the companies need some fairly certain way of determining whether a vacation benefit is old or not and so do the employees and it’s better to seek a solution that can be easily applied.

Warren E. Burger:

Mr. Sachse, while you’re pausing for a moment, let me see perhaps this is oversimplification. Are you trying to attack the 82 weeks of military service on to the bar — the gray marked bar that preceded it or you just kind of attack your two gray marked bars together for purposes of vacation?

Harry R. Sachse:

Let me put it a different way.

This way, I understand it.

What I’m trying to do is say that when the man returns that in that year, he can count his military service for vacation entitlement, so that —

Warren E. Burger:

Even though he got a vacation from the army?

Harry R. Sachse:

Even though he got a vacation from the army that the military service is a separate thing that the purpose of the Act is to: number one, encourage people to go into the military.

Number two, to prevent people who go into the military from being hurt when they come back and —

Warren E. Burger:

Well then, if that’s the theory then you ought to be able to get the differential and pay too.

That’s your basic theory.

Harry R. Sachse:

No, what we — no, our theory is that you can ignore what happened in the military, that the question is when this man came back when you start figuring his first vacation after he’s back, you have the right to count his time in the military just as if it had been —

Thurgood Marshall:

Well, then but you’re entitled to the first month off?

Harry R. Sachse:

Sir?

Thurgood Marshall:

Will be entitled to the first month off a vacation?

Harry R. Sachse:

Well, —

Thurgood Marshall:

You’ll see that’s — you got to get out of that.

Harry R. Sachse:

That’s a problem in this that bothers me and that is when a man comes back with only a week or two towards the end of the year and we’ve debated a bit about how this should be solved.

Should you do a pro rata in that year and then let it be the first full year.

The thing that shouldn’t be allowed to happen is he’s been in the military, he’s come back, he started the year January 1st as everybody else, he shouldn’t have to work through that whole year and not get a vacation, okay.

Warren E. Burger:

Well then going back to my question, your answer to my question I should think or simply would be, yes you are trying to attack the number of days of military service onto the number of days of employment that preceded this number of days.

Harry R. Sachse:

I think that’s correct.

I think fair answer to that question is yes.

William J. Brennan, Jr.:

Will he get vacation for both 1967 and 1968?

Harry R. Sachse:

He would get — I prefer that speaking of the year in which he gets it because there’s some confusion that he would get a vacation benefit in the year 1968.

William J. Brennan, Jr.:

That’s right.

Of how much — what — if he had been in continuous employment, he would have had in 1967 a vacation of how long, a week, two weeks?

Harry R. Sachse:

Seven days, I believe it is.

William J. Brennan, Jr.:

Seven days?

And in 1968, he would have get a —

Harry R. Sachse:

He would get a seven-day vacation.

William J. Brennan, Jr.:

Alright.

So, are you suggesting that he gets 14 days vacation in the remaining 13 weeks of 1968?

Harry R. Sachse:

No, no, no.

I’m only saying that in the year he comes back —

William J. Brennan, Jr.:

Well, is it not the year he came back?

Harry R. Sachse:

He came back in 1968, October 7, 1968.

He came back October 7, 1968.

William J. Brennan, Jr.:

Alright, now, what — how much vacation does he get?

The vacation he didn’t have in 1967 as well as the vacation he didn’t have in 1968?

Harry R. Sachse:

No, we’d only given the same vacation that he would’ve gotten in 1968 if he’d been working steady.

William J. Brennan, Jr.:

And we forget 1967.

Harry R. Sachse:

Forget 1967.

In 1967 he got taken —

William H. Rehnquist:

He got plenty time to leave.

Harry R. Sachse:

That’s right.

It was taken care of when he went in.

William J. Brennan, Jr.:

Oh, I see.

Harry R. Sachse:

Now, we have an alternative position which is that this —

William H. Rehnquist:

I take it’s drawn by Congress, aren’t you that —

Harry R. Sachse:

Well, when, I say we, what I mean is I really have to mean to two things.

One is that the Department of Justice represents the individual Earl Foster, out there right now and we argue the case for him.

When I say we, we also we also mean the Department of Labor and the Justice Department support the position that we have taken in this — in this brief.

I haven’t gotten to talk much about the cases but there are two cases it seem to me you are in control of this language to the statute and two cases.

Language to the statute is that a veteran should be restored in such manner as to give him such status in his employment as he would he 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.

That was an Act in 1948 that really codifying this Court’s decision, perhaps codifying and expanding this Court’s decision in the case called Fishgold but the Court has had two cases on questions similar to this.

The big issue for a while prior to the Accardi case among people who dealt with this problem was whether vacation benefits severance pay pensions counted as questions of seniority and status of whether they on the other hand counted as insurance or other benefits which would be governed by the contract provisions for people on leaves of absence.

In Accardi, the Court for — the Court defined the insurance or other benefits clause and it said that that was something in addition to the seniority clause that it didn’t keep severance pay from being seniority and that it applied to benefits the serviceman might get while he’s in the service.

Harry R. Sachse:

In other words, that if an employee on leave of absence could still go to the railroad hospital or his wife could still go to the railroad hospital, the insurance and other benefits clause would assure that his wife could still go there even if he was in the service and the Court very specifically ruled on or discussed that the insurance and other benefit clause.

Then prior to the Accardi decision, in the Magma Copper case that this situation, employees under — who had been denied both vacation pay and holiday pay.

In the vacation pay, they were denied it because — although they had satisfied their work requirement of 75% of the available shifts, they were not present at the plant on the last day of the year because they were in the military.

As to holiday pays, when they come back from the military, just think about this when they’d come back from the military, this were then the Vietnam War.

They were denied holiday pay for Fourth of July and for Independence Day though everyone else got it because they hadn’t satisfied a three-month requirement.

They had not been on the payroll three months when they came back.

Now, the Ninth Circuit upheld that and said the company could do that.

It could apply its contract.

Then the Accardi case was decided and the Ninth Circuit had the case back again on rehearing.

They reaffirmed their prior decision with one judge dissenting, saying, “We can’t do this.

This is not what other benefits means.

This is part of seniority see the Accardi case.”

The veterans petitioned this Court and the Court granted writ of certiorari and the Court summarily reversed the Ninth Circuit with an opinion that just said reversed, see Accardi with the citation.

There was a dissent in that case.

Justice Stewart — Justice Douglas wrote the dissent.

Justice Stewart and Justice Harlan joined in the dissent and in the dissent, they would have made a distinction between the amount of vacation or holiday pay that a person could get and the entitlement to it and would have said that the question of the entitlement to it is not a question of seniority and is something that would have to be governed by the contract but that’s the position that the Court did not take and that’s the subversive opinion said in an earlier case and as a result of that case too, we think it’s even clearer that in this situation that — that the entitlement should not be governed by the contract but should be a question of seniority that the serviceman has a right to.

Now, I want to answer one question raised by the respondents in their brief.

They say that as a matter of sort of legal principle that a vacation — that vacation pay is a part of wages paid, of salary and that therefore it has to be something other than seniority, that you can’t give a man a salary for the time that he didn’t worked and they cite a number of cases and arbitration decisions but those cases make a different point as we read and that is in the 1930’s, the Court sometime said that vacation is just a gratuity and that the management can do it at once with it and in a number of cases, arbitrators in courts held that vacations are not just questions of gratuity that there are things bargained for and in that sense, they say, that there are function of wages but there certainly was no attempt in those cases to answer the kinds of questions that are set forth here.

And —

Warren E. Burger:

The form — those holdings held that that’s the form of deferred compensation, isn’t it?

Harry R. Sachse:

That’s correct.

Warren E. Burger:

So, it’s related directly to the wages he received at the time.

Harry R. Sachse:

It’s related to the wages, it’s related to his seniority in the plant.

It clearly is not just for —

Warren E. Burger:

It’s the length — the length of service, the length of service plus the wages.

Harry R. Sachse:

That’s right.

It really — the reason that people have had trouble with the vacation thing is analytically, it’s somewhere in between a payment and a seniority right because it’s not just wages, it’s not tied that closely to it.

It’s for reasons other than wages too.

It keeps employee happy and able to work.

It’s an in between sort of thing and the Court has ruled on it in the — in Magma Copper to say that it is a function of seniority or I take that decision as ruling that way, that it’s protected by the Act.

Harry R. Sachse:

There are — I want to give you another citation which is United States versus Embassy Restaurant, 359 U.S. 29 which holds that payments into a union fund though analytically part of wages are not considered part of wages in Bankruptcy Act.

It simply illustrates the point that you have to look at the particular act in particular context and there’s no flat rule one way or the other, other than what the statute says in the cases this Court has decided ruling on.

William H. Rehnquist:

What the Government’s position, Mr. Sachse, in the case of the contract that calls for a one day vacation for each month worked the preceding year?

Harry R. Sachse:

The — our position is that if it’s clear in the contract — one day vacation for each month worked.

William H. Rehnquist:

Each month, each two weeks, whatever you want to call it.

Harry R. Sachse:

Well, if it’s tied close enough to a precise amount of work done, we then say that it’s a pure function of wages and if the contract is clear that the returning veteran does not have a right to it and the broadest example of that is a pooled vacation benefit where money is actually set aside in a pool for vacation.

We don’t claim with that kind of program that a person would have this right.

But what we’re talking about is veteran’s legitimate expectation when he returns to work.

I don’t think he would expect it in that kind of program but he would here.

Warren E. Burger:

But isn’t — isn’t his legitimate expectation that he will not lose the benefit of that period from the time he began to work there until the time he went into the service?

If he gets his place in line, as of the date when he left, why isn’t he restored fully than under both the act and the contract?

Harry R. Sachse:

Well, he’s being made a new man again, a rookie again.

He’s having to go through a year-and-a-half again before he gets his vacation.

Warren E. Burger:

Well that —

Harry R. Sachse:

And the company’s has written at that way but we don’t think that squares with seniority and status provisions of the Act and particularly with this Court’s prior cases on it.

This Court, in times perhaps when veterans were given a little more deference than they have been from Vietnam War has interpreted this Act, so as to really protect veterans and we’re trying to support those interpretations.

Warren E. Burger:

With no credit to the employer for whatever number of days vacation were given in the military service?

Harry R. Sachse:

No.

No, Your Honor.

Warren E. Burger:

On what theory do you just disregard that theory?

Harry R. Sachse:

That vacation was part of his military service.

He may not have wanted to be in Vietnam or he may not have been able to go anywhere but God knows where on that vacation.

Now, it could have been wonderful.

It might have been two weeks in Paris, you know, but we just —

Warren E. Burger:

Well then, it might have been a terminal leave pay as Mr. Justice Stewart suggested that the last — and that’s common with military personnel, is it not, that they are discharged as of March 30th that they leave active duty on —

Harry R. Sachse:

There are a lot of vagaries in the military about how these things worked, we’re trying to keep out that you know you can be discharged and have to go across the country and think that’s wonderful or you can be discharged and be in a terrible situation.

It can be from delight to horror and —

Warren E. Burger:

But you want to treat them all the same?

Harry R. Sachse:

We want to apply the principle at that time in the military counts as time in the plant and figuring their entitlement to vacation when they come back but just when they come back.

Thank you.

Warren E. Burger:

Mr. Shoop.

Robert H. Shoop, Jr.:

Mr. Chief Justice, may it please the Court.

Initially, let me set forth to the Court the position of the Government at least when they tried the case in the District Court where I was there.

The Government is seeking vacation for the year 1967 and 1968 under this chart that they have set forth.

They are seeking 64 hours of vacation in 1967 and 72 hours of vacation in 1968 for Mr. Foster and as I have set forth in my brief, —

William H. Rehnquist:

They’re not still seeking that much, are they?

Robert H. Shoop, Jr.:

The complaint in the initial case sought that much.

I think they misunderstand vacation benefits as I pointed out on page 4 of my brief, Mr. Justice.

A person earns their vacation in one year and they take it in their next year.

Mr. Foster earned his vacation in 1966.

He received it in March of 1967 when he went into the military service.

He earns his vacation in 1969 and on January 1st of 1970, he’s entitled to every cent of vacation that he would have earned in that last year.

That is 69 (Voice Overlap) vacation.

You take in 60.

Warren E. Burger:

Last year, you mean precisely what, what period?

You just used the phrase last year.

Robert H. Shoop, Jr.:

Okay, between the year of 1966, between January 1st of 1966 and December 31st of 1966, Mr. Foster earned one weeks vacation, 56 hours.

On January 1st of 1968, he was entitled to leave the employer Dravo and do whatever was necessary and he would have gotten that vacation.

He could have gone on vacation that week as a lot of people do in the first of week of January or he could’ve waited later on in the year.

Now, in the year of 1969, when he returned form the military service, he works that year and he earns his vacation which he is entitled to in full on January 1,1970.

He again can take the pay and leave the employment of Dravo or he can take his vacation or he can take it some time later on.

The — and provided during that year of 1969 and provided during that year of 1966, he works 26 work weeks, I mean 25 work weeks, excuse me.

He has to earn, have an earnings in those years before he can get the vacation the next year.

You earn it in 1967, take it in 1968, earn it in ‘199 and take it in 1970.

William H. Rehnquist:

Of course, one thing the Government contends as I understand it is that this is less like an earned vacation than it might be since the man who works 25 weeks and the man who works 50 weeks gets exactly the same amount of vacation.

Robert H. Shoop, Jr.:

No.

William H. Rehnquist:

That’s not right?

Robert H. Shoop, Jr.:

That is not correct.

The man who works 25 weeks and the man who work 50 weeks are both entitled to a vacation.

That’s the difference.

Robert H. Shoop, Jr.:

The man who works — has worked for Dravo for 20 years is entitled to five weeks vacation under this contract in issue.

The man who has worked for Dravo for five years is entitled to a different length of vacation.

William H. Rehnquist:

Okay, but how about two guys of each work for Dravo five years.

One who works 25 weeks and one who works 50 weeks, the preceding?

Robert H. Shoop, Jr.:

They both would get the same vacation the next year.

Now, Dravo however expects every employee to week regularly during the course of the year.

We expect everybody to normally attend work whose on the payroll 50, 49 weeks.

This provision is negotiated into a collective bargaining agreement by a union to protect people who for some reason may be ill during the course of the year.

They say, “Gee!

Look, here’s a guy who’s been ill for a month, why shouldn’t he get a vacation?

Here’s a man who may have left for a couple of months for a leave of absence because his wife is ill, why shouldn’t he get a vacation in the next year?”

So therefore, the union comes to the company and says, “Let’s make a man earn his vacation if he works 25 weeks.”

The company expects anybody who is regularly on the payroll except for leaves of absence, except for illness to work 50 weeks, 49 weeks, what we all work during the course of the year and not examples like they try and bring out in these cases if the man could only work 25 hours or something like that.

He’d be fired.

Potter Stewart:

Well, is that true Mr. Shoop in your plants of business, it’s not seasonal, is it?

Robert H. Shoop, Jr.:

No sir.

Potter Stewart:

No.

Robert H. Shoop, Jr.:

Dravo is a shipbuilding corporation in Pittsburgh, Pennsylvania and business is pretty good, right.

Potter Stewart:

And it’s not a seasonal business.

Robert H. Shoop, Jr.:

No, sir.

Potter Stewart:

Could have been.

Robert H. Shoop, Jr.:

Now, to answer some other questions that were raised in part of my argument, the question here is more than the $377.92 involved which are the vacation entitlements in 1967 and the vacation entitlements in 1968 which by the way Your Honors, in 1967, he became entitled to another days vacation.

He would — his vacation entitlement in 1967 is 64 hours.

His vacation entitlement in 1968 is 72 hours.

We recognized that when he got his vacation in 1970 and we gave him credit for his military service as far as the length of his vacation goes.

That is not at issue here and we did recognize that.

We’re talking about the entitlement to a vacation.

Now, let me point out the economic significance of finding the benefit as the Government would argue here.

We are dealing with a statute that has no statute limitation.

We’re dealing with a statute that is only detriment to filing suit is the doctrine of laches.

Robert H. Shoop, Jr.:

At least in Pennsylvania and as recognized by the Third Circuit, laches doesn’t come into effect into a man who has unknown right.

This statute has not been significantly amended since its enactment in 1940.

So theoretically, you’ll find for the Government every employee at Dravo who has been in the military service can file a suit to recover back vacation pay.

Warren E. Burger:

Whether he returned or not return?

Robert H. Shoop, Jr.:

Well, if he returned.

Right.

He would have to return.

Moreover, the —

Potter Stewart:

And that return within in a certain —

Robert H. Shoop, Jr.:

90 days, he has to return —

Potter Stewart:

Within 90 days.

Robert H. Shoop, Jr.:

— within 90 days after his discharge from the selective service to be entitled to any reemployment benefit.

Potter Stewart:

And if there’s a — if he’s been in the military longer than a certain number of years, it’s not applicable at all, is it?

Robert H. Shoop, Jr.:

Yes, let me point that out.

That was my next question and the Act does because a public policy to encourage enlistments in the military service also protect people who are enlisted, therefore, your question as to whether this is moot, although I would contend it isn’t anyway of the laches argument.

If people who do enlist are protected, they are protected, Mr. Justice Stewart for a period of four years.

Potter Stewart:

That is if they’ve —

Robert H. Shoop, Jr.:

If they enlist in the military service, they can stay in the military service for four years.

Potter Stewart:

For up to four years.

Robert H. Shoop, Jr.:

A fifth year, if they are requested by the Government to stay an extra year and this came up during the Cuban Missile Crisis is when they asked some people to stay in the service and they amended that statute of that time to increase up to five years upon request of the service.

Now, let me give you an example of under the Government’s theory what can happen.

An employee from Dravo can enlist in the military service on January 1st of 1975.

He can continue in the military service.

William J. Brennan, Jr.:

Well what’s the enlistment hitch now under the volunteer argument, three years or?

Robert H. Shoop, Jr.:

I think it’s still three years.

It was the last time I heard but he can continue in the military service until December, in the middle of December of 1979.

He can then, in 90 days, sometime in March of 1975, come back to work for Dravo.

According to the Government, we could owe him anywhere between eight and 20 weeks vacation pay, the day he came back to work for us because he has met the requirements of the re-employment statute.

I submit, Your Honors, the next day, he could quit and go to work for somebody else and there’s nothing we could do about it.

Moreover, you take their argument one other point, the lower courts accepting the decision like this could say hospitalization benefits, life insurance, how about vacation bonuses.

Robert H. Shoop, Jr.:

Many companies pay a bonus for a vacation and taken at various times of the year.

Is he entitled to this?

According to the Government’s theory, I think you can go as far as holding that it would include wages that for some reason maybe argued to appear a prerequisite of seniority.

Warren E. Burger:

Now, when you speak of the vacation bonus, you mean that the practice of giving one day and a half for each day if you take it between January 1st and March 1st or something.

Robert H. Shoop, Jr.:

My familiarity is we give him $30.00.

Many companies give $50.00 to take a vacation between January 15th and March 1st.

$40.00 to take a vacation in the next two months and nothing to take it during the summer and then going back up in the fall.

Steel and Aluminum all have these type of bonus arrangements.

Warren E. Burger:

Going back to your hypothetical case, is it your position under that the Government’s theory would require you to take a man who work for 30 days for Dravo and then went into the service for four years and then came back.

He might have built up this by attacking the military under the 30 days initial period.

(Voice Overlap) He might have a month vacation?

Robert H. Shoop, Jr.:

If the position he’d held in the 30 days was other than temporary and it’s no holding that he was a — that a probationary employee as other than temporary that was decided by the Fourth Circuit in Allen versus Weirton Steel, I believe in quite a number of years ago.

So, probationary employee and other than temporary are not synonymous.

However, if he was a summer employee who came to work for Dravo for the summer and wasn’t going to come back in the fall, he entered the military.

He would be what is known as a temporary employee under the term for the Act.

Lewis F. Powell, Jr.:

Mr. Shoop, are you suggesting when you mentioned insurance benefits that if a veteran would die in service, he’d be entitled to participate in the company’s group insurance program?

Robert H. Shoop, Jr.:

He certainly wouldn’t under any of the plants that I am familiar with but a logical extension of the Government’s argue — argument in this case would appear to me to hold that that’s a possibility.

You know, there’s no earned, you know.

My understanding of vacation benefits and my understanding of all these other benefits are they are earned benefits.

They are benefits that you earn by working for Dravo.

I think this Court has aptly pointed out that the vacation benefits between the time he left Dravo and between the time he came back were paid for by the Government.

At this time, remark of counsel significantly higher, higher rate of two-and-a-half days per every months of service, he gets 30 days vacation the year, he only gets eight, seven at Dravo.

William H. Rehnquist:

Of course, he gets not vacation from anyone in 19 — between 19 — in the year 1969.

Robert H. Shoop, Jr.:

In the year 1969, he got no vacation time off but he earned vacation that was taken effective January 1st of 1970, or could’ve been taken at that time.

William H. Rehnquist:

Which is like saying, he earned a vacation sometime in 1970 but he didn’t get anything since 1969?

Robert H. Shoop, Jr.:

He did not get any time off or he did not get any pay but he earned a vacation that he takes in 1970 and I think you will find that that’s the way vacations are.

You work for a period of time and then you get a vacation.

William H. Rehnquist:

Well, sure.

You always figure you’re going to put in some rookie time or whatever you want to call it before you qualify but the Government’s argument is I’m sure is that he shouldn’t have to put it in when he comes to work and then when he first comes back from the service too.

Robert H. Shoop, Jr.:

No sir, Your Honor.

Robert H. Shoop, Jr.:

I submit that you have to put in time every year to get a vacation.

On a year sir, you could take a year off and you wouldn’t — you would get vacation.

That isn’t true.

William H. Rehnquist:

Well, he put in a year — from January 1, 1968 to January 1, 1969, he put in presumably 39 weeks with the military and 13 weeks with Dravo but he got no vacation the following year.

Robert H. Shoop, Jr.:

That’s right.

Also I stated before, this Act was enacted in 1940 and except to codify what was the escalator principle in Fishgold versus Sullivan Drydock, the Act has not significantly been amended.

Warren E. Burger:

Let me back up to your statement about the 13 weeks at the end of 1969.

Do I understand you to say that in the first week — on the first day of January, he was then entitled to a vacation benefits deriving from the 13 weeks plus his prior service?

Robert H. Shoop, Jr.:

No, sir.

To qualify for a vacation in any one year, a regular employee must perform work for Dravo Corporation a period of 25 weeks.

Warren E. Burger:

Well then, when — at what point in 1970 would he get the benefit of the 13 weeks which he worked in 1969?

Robert H. Shoop, Jr.:

He would never get the benefit of working those 13 weeks except for the fact that in length of vacation, it will be recognized that the entire year of 1968 would be — I believe those 13 weeks were worked in 1968, Your Honor.

That’s between 1968 and 1969.

William H. Rehnquist:

Didn’t the Third Circuit say that that should be remanded to the District Court.

Robert H. Shoop, Jr.:

Yes, sir.

William H. Rehnquist:

That particular issue that the Chief Justice inquired about?

Robert H. Shoop, Jr.:

The Government has at this time in their brief that wasn’t reached an argument made an argument for a pro rata benefits.

They say, “Well, at least, he’s entitled the 13 25ths of a vacation.

That issue was never raised at the trial level.

As I submit in my brief.

If Your Honor would look on page 24 of my brief in the appendix on page 10, what happened was the judge at the trial level, tried to effect the settlement between Dravo and the Government and he suggested this as being an issue maybe we could pro rate the vacation for 1968.

I specifically stated to him on the record at that time that that was not the issue before this Court and he recognized it.

That was not the issue before the District Court at that time, and the judge said, “Yes, I recognize it” but being a non-jury trial he was trying to settle it may have said a number of things in the record.

I don’t think he’s one of us who believe, we are going to be here or I was going to be here today when we tried this case.

But —

William H. Rehnquist:

Well, if we affirm the judgment of the Third Circuit, the case would go back to the District Court and the employee would have a right to litigate at least as matter of contract law, whether he’s entitled of pro rata vacation.

Robert H. Shoop, Jr.:

The issue before the District Court would be one, was the matter raised and litigated there?

And two, what is the outcome, or what decision would this Court make based on the law in the contract in issue?

If you affirm the third — that’s exactly what the Third Circuit did, they sent it back to the District Court.

Byron R. White:

But if you say, that although the Act doesn’t require you to recognize that he’s entitled to a vacation, you say that he works all of 1969, then in 1970, he’s entitled to a vacation and you say you will — the length of the vacation pay that he’s entitled to, you say, will include the time he was in the military.

Robert H. Shoop, Jr.:

Yes, sir.

Byron R. White:

Well, the — now, do you say the Act requires that?

Robert H. Shoop, Jr.:

I would think so, sir.

Byron R. White:

Because you must treat him as having been on the payroll.

Robert H. Shoop, Jr.:

Because no.

Because you treat him as seniority.

He is in his relationship to other employees has five-year seniority.

You look at your contract and you find that people with five-year seniority are entitled to “X” number of weeks vacation.

Byron R. White:

Well that’s only — that’s only if you work those — that’s only if you’ve been entitled to vacation during those periods.

Robert H. Shoop, Jr.:

Not necessarily.

I would — that issue wasn’t raised and I wholeheartedly agree with the company’s actions in this case of giving the man his benefit in the military service towards the length of his vacation.

Lewis F. Powell, Jr.:

Well, Mr. Shoop, what happens with an employee who does not go into the military service but who in 1967, whatever reason worked only 20 weeks, in 1968, worked only 15 weeks but then he comes to 1969, he works 52 weeks, how do you compute his vacation earned for 1970?

Robert H. Shoop, Jr.:

Okay.

He would receive no vacation benefits for the year 1967, that which he worked less than 25 work week.

He would receive no vacation benefits for the year 1968, that which he worked less than 25 work weeks.

He would receive vacation benefits in 1969 when he worked more than 25 work weeks which would be taken in 1970 and the length of his vacation I think is the question you’re getting to would be treated just as if he had been an employee and on the role of the (Voice Overlap)

William J. Brennan, Jr.:

Whether or not he earned any vacation.

Robert H. Shoop, Jr.:

Whether or not he took it in the previous years, I think —

William J. Brennan, Jr.:

Whether or not he earned it.

Robert H. Shoop, Jr.:

Whether or not he earned it, right I think in those cases —

Potter Stewart:

So that’s pure seniority.

Robert H. Shoop, Jr.:

That’s pure seniority.

The length of the vacation is pure seniority.

The entitlement to a vacation of any given year is earned.

You earn your vacation this year to take it next year.

Let me just —

Harry A. Blackmun:

Mr. Shoop, on remand, if you prevailed here, on remand, will you also have under consideration a pro rata for 1965?

Robert H. Shoop, Jr.:

Well —

Harry A. Blackmun:

Or is that —

Harry R. Sachse:

No, 1965 there’s no problem.

Harry R. Sachse:

We have under remand the argument of the nine weeks in 1967.

Harry A. Blackmun:

Why not 1965 also?

Robert H. Shoop, Jr.:

Because 1965, see that’s where they missed the — the Government isn’t getting the — he got his 1965 vacation in 1966.

See, he worked 22 weeks in 1965 and he received 20 hours vacation in 1966.

Harry A. Blackmun:

But why was he entitled to it, it was not 25 weeks, or is it just because he began work in that year?

Robert H. Shoop, Jr.:

As Justice Stewart pointed out, the rookies — and this is — this is something that’s negotiated in a contract to protect an employee who is coming on the payroll new.

Harry A. Blackmun:

Okay.

Robert H. Shoop, Jr.:

And he is entitled to some benefits at that period of time as a new employee but he’s only entitled to one day.

In this period of time, Mr. Foster in this case is entitled to over two weeks vacation when he returns that’s why you wouldn’t return as a rookie, you’d want to return as a — as a veteran, so you can get that length of vacation better than you had before.

Warren E. Burger:

In other words, the total length of his service from his first employment date down to 19 — the beginning of 1970 is used to measure the amount of vacation but not to give him any dollars for the period he was in the military service?

Robert H. Shoop, Jr.:

No sir, you earn your vacation each and every year.

Warren E. Burger:

But your answer to my question is yes then, is it?

Robert H. Shoop, Jr.:

Yes.

William J. Brennan, Jr.:

I wonder Mr. Shoop, you said this was within the statute, this is related to seniority yet Section 2 says should be so restored in such manner as to give him such status in his employment as he would have enjoyed if it continued in such employment continuously from the time he was entering the armed forces to a time his restoration of such employment.

Now, the hypothetical I gave you before of the chap who had not gone into service going to be 20 weeks or 15 weeks.

I gather you’re giving him the same status in his employment as that probable?

Robert H. Shoop, Jr.:

As that probably do, yes sir.

William J. Brennan, Jr.:

Because at least for purposes of a length of vacation he gets in 1970 that he earns in 1969, he’s given credit for his time in service.

Robert H. Shoop, Jr.:

Yes sir, right.

The length of vacation, no problem.

We’re giving him all the credit and to point out further that a vacation is an earned benefit under the Dravo contract, I would point out that in Article IV, Section 3 as cited at my brief, a person at Dravo who works considerably more overtime as to say regularly six days a week receives more vacation than the person who doesn’t work those hours.

So, there is a relationship between the amount of time worked and the amount of vacation you get and that you get more vacation if you worked longer hours and more overtime.

The two cases that were cited by the Government and relied on, I think, ought to be examined in some detail and the first was Accardi.

What happened in the Accardi decision was the Pennsylvania Railroad attempted to abolish the position of firemen on new diesel tugs back in 1959.

A strike ensued, the firemen went on strike.

The intra-strike was finally settled in 1960 with an agreement that the position of firemen was abolished.

However, they would remain on the payroll, those firemen who had 20 years or more seniority and they remained on the work force.

The other part of the agreement paid severance pay to those employees who had less than 20 years seniority.

The severance pay was paid on a theory of the number of years of compensated service you had with the Pennsylvania Railroad.

The Pennsylvania Railroad being wrong again argued that this was an earned benefit.

Robert H. Shoop, Jr.:

This Court correctly saw it wasn’t.

It couldn’t be an earned benefit because the people who works severed would never ever get the benefit and everybody who was discharged got some benefit.

The only thing they were arguing about was the amount of the benefit and that’s exactly like our vacation policy.

The amount is not in question.

It is a prerequisite of seniority and the entire agreement was the severance pay.

There was no full collective bargaining agreement and the Third Circuit in this case reviewed the entire contract and came to the conclusion that vacations at Dravo are an earned benefit.

Eagar versus Magma Copper has also been referred to.

It was a pre curiam decision.

There was a dissent in that case written by Justice Douglas on behalf of you, Justice Stewart and the late Justice Harlan.

In that case though, Eagar had worked the amount of time that was necessary to receive the benefit.

He had worked 75% of the hours in the week before he entered the military service and the year before he entered the military service.

The only thing was he wasn’t on the payroll at the end of his first anniversary year and wasn’t on the payroll on December 31st of the vacation of earning year.

That’s the only difference.

He earned his, here, it has not been earned.

Potter Stewart:

Well, but he didn’t — he didn’t meet the conditions of the collective bargaining agreement.

Robert H. Shoop, Jr.:

But he met —

Potter Stewart:

No question to that.

Robert H. Shoop, Jr.:

— all the earnings requirements of the collective bargaining agreement.

You take my position that vacations are an earned benefit that they are a payment or earnings deferred to compensation for working at the company.

Eagar is entitled to it and anybody else that Dravo is entitled to it provided they have earned their vacation.

Potter Stewart:

Well, you don’t have the same agreement that was involved in the Eagar case, in the — yes, Eagar case.

Robert H. Shoop, Jr.:

No but I got this similar agreement.

In my case, you have to work 25 work weeks, in his, you have to work 75% percent of the work week.

Potter Stewart:

Plus be on the payroll at the end of the year.

Robert H. Shoop, Jr.:

I would say, my position on those if we have those in these collective bargaining agreements that those are seniority provisions.

Potter Stewart:

Well, it’s easy position for you to take now.

Robert H. Shoop, Jr.:

Yes, sir.

Potter Stewart:

Since you don’t have that in your agreement.

Robert H. Shoop, Jr.:

Yes, sir.

My law school professor, however, told me that a dissent of three justices in the Supreme Court is better than nothing at all and so therefore, I would ask for your consideration to — [Laughter Attempt] of your dissent in that opinion which goes further by the way than I intend to ask this Court — than I have asked this Court to go today.

Robert H. Shoop, Jr.:

As I stated before, Dravo expects every employer, every employee to perform a work of 50 weeks.

The judges and justices who in their judicial opinions have thoroughly considered the issue of vacation entitlement have all determined that vacation entitlement does not automatically accrue as a result of seniority but are earned benefits as found by this Court, as far back as 1948, Judge Learned Hand in Dwyer v. Crosby cited in my brief held this.

Judge Hufstedler in Austin versus Sears and Roebuck in 1974 held this.

Judge Hill in Kasmeier in the Tenth Circuit held this.

Judge Adams in the Third Circuit held this.

Judge Batten dissenting in Locaynia in the Ninth Circuit held this.

These gentlemen had all reviewed thoroughly the collective bargaining agreements in issue.

The facts of both Accardi and Eagar and found as well as Justice Douglas, Justice Stewart and Justice Harlan that vacation benefits are an earned benefit that you must meet that earnings requirement, in this case of 25 weeks to be entitled in that year or the next year to a vacation.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.