The opinion
JAMESON, Senior District Judge
(concurring):
The question of whether SUB benefits are perquisites of seniority within the meaning of the Military Selective Service Training Act of 1967 (50 U.S.C.App. § 459) is a close one. I concur in the result reached in Judge Kiley’s opinion.
First, the SUB credits do not appear to be conditioned exclusively on the performance of work. “Those (rights) which accrue with the passage of time are seniority rights . . . . ” Hoffman v. Bethlehem Steel Corporation, 477 F.2d 860, 863 (3rd Cir. 1973). To be eligible for SUB credits an employee need only receive “any pay from the Company” during a work week. 1 The term “any pay” is ambiguous. Apparently, an employee receiving pay while on vacation, sick leave, temporary layoff or an authorized leave of absence would accumulate SUB credits. 2 Thus, no actual work would be required. Because the Act is to be liberally construed for the benefit of returning veterans, 3 this ambiguity must be resolved in favor of the appellees.
Second, I agree with the Third Circuit 4 that a SUB plan of this nature, provides seniority-type rights. As stated in Foster v. Dravo Corporation, 490 F.2d 55, 59 (3rd Cir. 1973): “The plan is a way of conferring, in diminished stature, one of the chief advantages of seniority, protection against economic loss in a period of diminishing employment.” While the SUB credits are not seniority rights in the traditional sense, nevertheless, applying the liberal construction rule 5 to the term “seniority,” I conclude that the SUB benefits are perquisites of seniority.
. SUB plan, Article III Section 2(a) states that an employee will receive credit units “for each Work Week for which . . . (he) receives any pay from the Company and for Work Weeks . . . for which he does not receive pay from the Company but for which he receives a Leveling Week Benefit.” (Emphasis added).
. Article III Section 2(d) requires that an employee be on the Active Employment Boll before he is eligible to accrue SUB credits. Article IX includes on the Active Employment Roll employees on vacation, sick leave, temporary layoffs or authorized leaves of absence.
. Fishgold v. Sullivan Drydock & Repair Corp., et al., 328 U.S. 275, 285 , 66 S.Ct. 1105 , 90 L.Ed. 1230 (1946).
. In Hoffman v. Bethlehem Steel Corporation, 477 F.2d 860 (3rd Cir. 1973), the court, dealing with a SUB plan similar to that involved in the present action, concluded that the SUB credits were perquisites of seniority.
. The Supreme Court in Accardi v. Pennsylvania R. Co., 383 U.S. 225, 229 , 86 S.Ct. 768, 771 , 15 L.Ed.2d 717 (1966), directed: “The term ‘seniority’ is not to be limited by a narrow, technical definition but must be given a meaning that is consonant with the intention of Congress as expressed in the 1940 Act.”