# Appendix — Foster v. Dravo Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0371%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 420 U.S. 92 ## Text pREME COURT, Us & APPENDIX ~ | wv erm E | /] icHAEL RODAK, JR., CLER Supreme Court of the United States . OCTOBER TERM, 1974 . No. 73-1773 EARL RB. FOSTER, : Petiti —Vi— Dravo CORPORATION ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, PETITION FOR A WRIT OF CERTIORARI FILED MAY 25, 1974 CERTIORARI GRANTED OCTOBER 15, 1974 IN THE Supreme Court of the United States OCTOBER TERM, 1974 No. 73-1773 EARL R. FOSTER, Petitioner —Vv.— DRAVO CORPORATION ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT INDEX TO APPENDIX Page Docket Emtries .22....2..0..2.c.ccccccceecceceececcceceeseeeceeeesceeeeeeeeeeeeeseeeeeneees 1 Complaint 20... ieee ccc eee ccetee cee cece eceteeeeeeceeececensgeenteeeesneees 3 RG) (-) ee 6 Stipulation of Fact _....0.00...0...000 ecco cee eevee eevee ceeeee sees nee 8 Interrogatories answered by Dravo Corporation .................... 12 Collective Bargaining Agreement .................... sesenaceecscesveesseseees 28 District Court proceedings 0... ........cceceecccccc cece cecececeeeeeeceecceeeeeeeee 59 District Court opinion and oré@er ................ [Appendix C to Petition for a Writ of Certiorari] Court of Appeals opinion —....0000..0000200 coe... [Appendix A to Petition for a Writ of Certiorari] Court of Appeals judgment _..000.0.000... {Appendix B to Petition for a Writ of Certiorari] Notice of Appeal 22.2002... cccecccceeeeeteeeeeeeeeeeeeeeeeeeeeeeeeeee. 109 Order allowing certiorari .22000.0000000..0 coco ceccceccceeeeeeeeeeeeecveseee 110 1 RELEVANT DOCKET ENTRIES PROCEEDINGS DATE 1971 Aug. 20 Complaint filed Aug. 23 Summons issued Aug. 31 Summons returned served on deft. 8/15/71 Sept. 13 Stipulation for extension of time to answer and proposed order filed. Sept. 20 Order entered extending time for deft. to »nswer or otherwise plead until 9-30-71. (Miller, J.) Sept. 24 ANSWER filed by deft. 1972 Apr. 21 Interrogatories by plf with answers of deft Dravo Corp. thereon (1-18) Apr. 28 Order entered transferring case to Wallace S. Gourley (Miller, J.) May 4 Order entered Setting Procedure until disposition of Case. (Gourley, J.) ‘May 4 Order entered fixing non jury trial for 5-30-72 at 10 A.M.; counsel for plft. to file pretrial within 10 days of receipt of this order; coun®*el for deft. within 15 days and pretrial stip. within 20 days. (Gourley, J.) May 18 _ Pitf’s Pretrial Stmt filed. May 19 Deft’s Pretrial Stmt filed. May 23 Order entered directing that the Non Jury Trial previously fixed for 5-30-72 at 10 am is con- tinued until 5-31-72 at 10am. (Gourley, J.) May 31 Non Jury Trial held before Gourley, J. & Con- cluded. (Order to be entered) (Ct Rep M. Brown) (Hearing Memo Filed.) “oo 2 DATE PROCEEDINGS 1972 May 31 Stipulation of Fact filed by counsel. June 2 Deft’s pretrial memorandum filed June 2 Order ent directing briefs befiled. Counsel to sub- mit to Court before 7/24 suggested findings of fact and conclusions of law. Reporter to tran- scribe non jury trial held 5/31 at joint ex- pense of varties (Gourley, J.) July 5 Transcript filed re Non “4 trial held 5-31-72 be- fore Gourley, J. (Rep. M. Brown) July 28 Findings of Fact and Conclusions of Law filed by deft Dravo Corp. Nov. 6 Opinion filed and Order entered 11-3-72 directing judgment is hereby entered in favor of the Deft. Dravo Corporation and against the Plitf. Earl R. Foster. (Gourley, J.) Nov. 6 Pursuant to Opinion filed and Order entered on 11-3-72 Judgment is hereby entered as accord- ingly. BERNARD SCHAFFLER, CLERK Nov. 6 Notice Mailed. Nov. 21 Notice of Appeal filed by pltf. Nov. 21 Copy of Notice of Appeal mailed U. S. Court of Appeals; copy of Notice of Appeal mailed to counsel for deft.; letters to all counsel of Record and Judge Gourley. Dec. 18 Original Record and €xhibits mailed U. S. Court of Appeals. 3 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ‘Civil Action No. 71-781 EARL R. FOSTER, PLAINTIFF Vv. DRAVO CORPORATION, DEFENDANT COMPLAINT Plaintiff, Earl R. Foster, by Richard L. Thornburgh, United States Attorney for the Western District of Pennsylvania for his cause of action alleges that 1) The jurisdiction of this court is based on the pro- visions of section 9(d) of the Universal Military Training Service Act, as amended (act of June 24, 1948, c. 625, section 9; 62 Stat. 614 as amended; 50 U.S.C., App. 459 et seq), hereinafter referred to as the Act. 2) Plaintiff brings this action to require defendant to accord him vacation entitlement rights which he has earned and for damages suffered in loss of pay and other benefits by reasons of defendant's failure and refusal to accord said rights. 3) The plaintiff is an individual residing at 111 Ram- sey Avenue, Corapolis, Pennsylvania. 4) Defendant is a corporation doing business and main- taining offices within the jurisdiction of this Court, spe- cifically in Pittsburgh, Pennsylvania. 5) The plaintiff was first employed by defendant on or about August 5, 1965. 6) Plaintiff left his employment with the defendant . for the purpose of induction into the Armed Forces of the United States and entered into the Armed Forces of the United States on or about March 6, 1967. 7) Plaintiff’s position and employment with the de- fendant at the time he entered military service was one ether than a temporary position. 4 8) Plaintiff served in said Armed Forces until on or about October 1, 1968, at which time he was honorably released therefrom and received a certificate evidencing satisfactory completion of his military training and service, 9) Plaintiff complied with all statutory requirements and conditions for restoration to employment by defend- ant, including timely \application therefor, and was re- stored to his pre-service position by the defendant on or about October 7, 1968. 10) Upon his return from military service and his restoration to his pre-service position, defendant penalized plaintiff for his military absence by refusing to recognize and grant his vacation benefits commensurate with his length of service in defendant’s employ. 11) Defendant has continuously refused and* now re- fuses to comply with plaintiff’s demand for proper credit for vacation benefit:, in violation of the provisions of the Act. 12) As a result of defendant’s refusal to grant plain- tiff his proper vacation credit and compensation based thereon, plaintiff has suffered and continues to suffer substantial loss of pay which damage he would not have suffered if he had been properly and promptly granted the vacation credits to which he was entitled. , WHEREFORE plaintiff respectfully prays: a) that this Honorable Court adjudge and deeree that plaintiff is entitled to vacation credits and benefits commensurate with his seniority. b) that defendant be ordered to compensate plaintiff for damages suffered by reason of the loss of pay and other benefits which would have accrued had he been, granted proper vacation credit promptly. _,9: c) that plaintiff have such other and further relief that this Honorable Court may deem just and proper. /8/ Richard L. Thornburgh United States Attorney /8/ Blair Griffith Assistant United States Attorney Or COUNSEL /8/ Peter G. Nash Solicitor of Labor /s/ Louis Weiner Regional Solicitor /8/ Sidney Salkin Attorney Jo UNITED STATES DEPARTMENT OF LABOR 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Civil Action No. 71-781 ° [Received Sep. 27, 1971, 10:15 AM, J. S. Attorney’s Office, Pittsburgh, Pa.] EARL R FOSTER, PLAINTIFF vs. DRAVO CORPORATION, DEFENDANT ANSWER AND NOW comes the defendant DRAVO CORPORA- TION by its counsel, Charles R. Volk and Thorp, Reed & Armstrong, and answers each paragraph of the Com- plaint in the above captioned matter as follows: 1. The averments of paragraph 1 are admitted. 2. This paragraph contains the motivations of the plaintiff which is within his exclusive knowledge. How- ever, the defendant denies all implications that it has failed to accord the plaintiff any rights due him. The averments of paragraph 3 are admitted. The averments of paragraph 4 are admitted. The averment of paragraph 5 is admitted. The averments of paragraph 6 are admitted. The averment of paragraph 7 is admitted. The averments of paragraph 8 are admitted. The averments of paragraph 9 are admitted. 10. The averments of paragraph 10 are denied. 11.: The averments of paragraph 11 are denied. 12. The averments of paragraph 12 are denied. OS SS a 7 WHEREFORE, defendant respectfully prays that this Honorable Court dismiss the Complaint and enter judg- ment for the defendant. THORP, REED & ARMSTRONG /s/ Charles R. Volk Charles R. Volk Attorneys for defendant Dravo Corporation 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA - Civil Action No. 71-781 EARL R. FOSTER, PLAINTIFF Vv. DRAVO CORPORATION, DEFENDANT STIPULATION OF FACT 1. Plaintiff was initially employed by the defendant on or about August 5, 1965, and he remained con- tinuously employed until he was granted a military leave of absence by defendant and left his employment on or about March 6, 1967, for induction into the Armed Forces of the United States. 2. At the time plaintiff left his employment as afore- said, he was employed as a scaler (hand brush) at an hourly rate of $2.62. 3. The aforementioned employment was in an other than temporary position. 4, Plaintiff served in the Armed Forces until October 1, 1968, and thereafter made timely application to de- fendant for reinstatement in his employment, and was restored in his pre-service position by defendant on or about October 7, 1968, at an hourly rate of $2.92. 5. At all times material hereto, plaintiff’s plant sen- iority was and is August 5, 1965. 6. By the terms of a collective bargaining agreement then in force between plaintiff’s collective bargaining representative, Industrial Union of Marine and Ship Building Workers of America, Local Union No. 61, AFL- ~"CIO, and defendant, vacation benefits and eligibility therefor are provided in Article XIV, Sections 1 and 2. A copy of said provisions of the said collective bargain- ing agreement are attached hereto and marked Exhibit 9 1. Said collective bargaining agreement and the afore- mentioned provisions thereof were in effect according to their respective terms at all times relevant to the present case. 7. In addition Article X, Section 8 of the aforesaid agreement provides that “an employee who is granted a leave of absence shall retain and accumulate seniority for the period of the leave of absence”. g. Article XIV defines “Seniority” as “the right of preference in layoffs or rehiring, measured by length of service in a job classification at the Heavy Metals Plar*” and Section 2, lines 5-8 of said agreement provides: ‘Cu. tinuous employment as used in this Article means con- tinuous seniority since any break in such seniority caused by any of the reasons enumerated in Section 7 of Article X of the agreement.” Article XIV, Section 1 of the agreement provides that on the first December 31 of his employment, an em- ployee receives four hours paid vacation for each month in which he worked ten days or more; the second De- cember 31 of continuous employment he received one (1) week and two (2) days of paid vacation. Progressively longer paid vacations are awarded up to the 30th year, always based on years of continuous employment as of December 31. Article XIV, Section 2 provides that be- ginning with the second December 31 of employment and thereafter, in order to qualify. for vacations, an em- ployee must have “received earnings” in 25 workweeks in the 12 months immediately preceding the current De- cember 31. Article XIV, Section 2 (lines 23 through 29), further provides: “. . . employees who are laid off dur- ing the year immediately preceding December 31, and because of such layoff, do not qualify for a vacation under this section will be given a prorata vacation to which they might otherwise be entitled on the relation- ship of the weeks they did work to 25 weeks ... .”. 9. Plaintiff received all vacation benefits due him for the year 1966 before entering military service on or about March 6, 1967. In the period from on or about March 3, 1967, to on or about October, 1968, the plain- tiff would not have been laid off. preset PESE Spree 10 10. During the period between on or about March 6, 1967, and October 7, 1968, while the plaintiff was ab sent in the military service, approximately 12 em- ployees who were junior to the plaintiff in terms of plant seniority date and who were not called for in- duction into the military service, received earnings in at least 25 workweeks in each of the calendar years 1967 and 1968, and were thereby eligible for vacation benefits. Said junior employees, the number of workweeks worked, and the vacation credits received are hereto attached as stipulation Exhibit 2. 11. Plaintiff’s vacation benefits would have amounted to 64: hours for the calendar year 1967 and 72 hours for the calendar year 1968, based on his seniority and length of continuous service with the defendant. 12. Article V of the aforesaid Agreement recognizes the Company’s right to discharge or discipline employees for “proper cause”. In the event the Court finds for the plaintiff in this case it is stipulated and agreed that the damages incurred . and payable to plaintiff by defendant by virtue of de- fendant’s denial of plaintiff’s vacation pay and other benefits shall be 377.2. /8/ Richard L. Thornburgh United States Attorney /8/ Blair Griffith Assistant US Attorney il OF COUNSEL s/ Richard F. Schubert Solicitor of Labor /s/ : — Louis Weiner Regional Solicitor / Sidney Salkin Attorney UNITED STATES DEPARTMENT OF LABOR THORP, REED & ARMSTRONG By: /S/ Charles R. Volk, Esquire 2900 Grant Building Pittsburgh, Pennsylvania 15219 Attorneys for Defendant 12 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Civil Action No. 71-781 EARL R. FOSTER, PLAINTIFF Vv. DRAVO CORPORATION, DEi ENDANT INTERROGATORIES PROPOUNDED BY PLAINTIFF TO BE ANSWERED BY A RESPONSIBLE OFFICER OF DRAVO CORPORATION, ENGINEERING WORKS DIVISION Now comes Ear! R. Foster, plaintiff in the above styled action by. his counsel Richard L. Thornburgh, United States Attor ney for the Western District of Pennsylvania and requests that defendant corporation, Dravo Corpora- tion, Engineering Works Division, by an officer compe- tent to answer on its behalf. answer under oath in ac- cordance with the Federal Rules of Civil Procedure, the following interrogatories: 1) State the complete title of plant, urit, and/or di- vision of Dravo Corporation wherein the plaintiff herein, Eor! R. Foster. was and is employed. Engineering Works Division, Paint Department 2) State the name, official title, any job or sub-classi- fication thereof, salary, grade, and hourly rate paid of the position held by the plaintiff, as of August 5, 1965. Sealer (Hand Brush) $2.47 per hour 3) State the plaintiff’s company, plant, and unit/di- vision seniority dates as of March 3, 1967. August 5, 1965 4) State plaintiff’s job seniority date, official title, and job or sub-classification thereof, salary, grade, and hourly eo. 13 rate paid of the position held by the plaintiff as of March 3, 1967. August 5, 1965 Sealer (Hand Brus) $2.62 per hour as of October 1, 1966—Rate change due to contractual adjustment. 5) State plaintiff's company, plant, and unit/divisioa seniority date as of October 7, 1968. August 5, 1965 6: State the name, official title, and job or sub-classi- fication thereof, salary, grade, and hourly rate paid of the position held by the plaintiff as of October 7, 1968. Sealer (Hand Brush) $2.92 per hour as of October 7, 1968 7) State the job seniority date of the plaintiff as of October 7, 1968. August 5, 1965 8) Who was the vlaintiff’s collective bargaining rep- resentative during the period from March 3, 1967, to present? Industrial Union of Marine and Shipbuilding Work- ers of America, Local No. 61, A.F.L.—C.LO. 9) List the complete history of the plaintiff’s employ- ment by the Dravo Corporation between August 5, 1965, to present, indicating all positions held (and sub-classi- fication within any position), the dates attained, the job classification number, pay grade, and hourly rate attached to the said positions, dates of layoffs and re- eall, if any. Hired August 5, 1965, as Scaler (Hand Brush) at a rate of $2.47 per hour. October 1, 1965, Mr. Foster’s hourly rate was advanced to $2.51 per hour as the result of a contractual ad- justment. Mr. Foster requested and was granted a Military Leave of Absence for the period April 3 to April 30, 1966. 14 May 4, 1966, Mr. Foster returned to active employ- ment at the same rate of pay and classification as when he left on the Military Leave of Absence. October 1, 1966, Mr. Foster’s pay rate advanced to $2.62 ‘per hour as the result of a contractual wage adjustment. March 6, 1967, Mr. Foster requested and was granted a Military Leave of Absence to commence March 7, 1967. Mr. Foster returned to active employment on October 7, 1968, as a Sealer (Hand Brush) at a rate of $2.92 per hour. September 1, 1969, Mr. Foster’s pay rate advanced to $3.09 per hour as the result of a contractual wage adjustment. July 20, 1970, Mr. Foster entered the classification of 2nd class Handyman-Paint at the rate of $3.24 per hour. September 1, 1970, Mr. Foster’s pay rate advanced to $3.40 per hour as the result of a contractual wage adjustment. November 23, 1970, Mr. Foster advanced to 1st class Handyman-Paint at a rate of $3.47 per hour. June 9, 1971, Mr. Foster was laid off in his Handyman classification and bumped back to his Scaler classifica- tion at the rate of $3.24 per hour. July 9, 1971, Mr. Foster entered the classification of Rigger, 3rd class, at the rate of $3.63 per hour. September 1 until October 21, 1971, Mr. Foster was on strike due to the expiration of the labor agreement with Local 61. November 15, 1971, Mr. Foster’s pay rate advanced to $4.03 per hour as the result | of a contractual wage adjustment. 15 November 22, 1971, Mr. Foster was advanced to 2nd class Rigger at a rate of $4.22 per hour. March 27, 1972, Mr. Foster was advanced to 1st class Rigger at a rate of $4.47 per hour. This remains his status at this time. 10) State the number of workweeks worked by the plaintiff and for which he received earnings from t.¢ defendant in the course of his employment by the de- fendant, for each calendar year from the period August 5, 1965, through Dece:nber 31, 1968. 1965—22 weeks 1966—47 weeks 1967— 9 weeks 1968—13 weeks 11) Was a seniority roster maintained by the defend- ant of the unit and/or division of the Dravo Corpora- tion wher€in the plaintiff, Earl R. Foster, was and is employed covering the period from on or about August 5, 1965, to December 21, 1968? If so kindly attach a copy of same. Yes—Attached 12) During the period from on or about March 3, 1957, to on or about October 7, 1968, list the names and addresses of all employees of the defendant employed in the same plant, unit/division, as the plaintiff had been on March 3, 1967, who were junior in seniority to the plaintiff. Attached 13) As to each of the employees named in the an- swer to the preceding interrogatory state: a) their seniority dates b) the number of workweeks worked in which they} received earnings in their employment by defend-' ant in each of calendar years 1967 and 1968 c) the number of vacation credits or benefits with, pay they received in each of the calendar years 1967 and 1968 / 7 ; % As a *§ = 4, De 4 *% i # oA * ¢ “b x e i yf 7 — en 16 d) state the dates of layoffs and recall, if any, of these employees for each of the calendar years 1967 1968 Attached 14) In the period from on or about March 3, 1967, to on or about October 7, 1968, had the plaintiff not been absent in the military service, would he have worked and received earnings therefor in the employment of the defendant for at least 25 weeks in each of the calendar years 1967 and 1968. Yes 15) If your answer to the preceding interrogatory is in the affirmative, would the plaintiff have accrued vaca- tion benefits for each of the calendars 1967 and 1968? If so, compute the specific amount of vacation benefits and the nature thereof for each of the calendar years 1967 and 1968. 1967—64 hours 1968—72 hours 16) Was there a collective bargaining agreement in force between plaintiff’s union and the defendant cover- ing the period March 8, 1967. to October 7, 1968? If so kindly attach a copy to your answer hereto. Yes—Attachment (1966-1968 Agreement) 17) In defendant’s answer to plaintiff’s complaint what are the facts upon which defendant bases its denial of the avernments of paragraph X of the plaintiff’s com- plaint? Plaintiff worked from January 1, 1967 until March 3, 1967 or a total of nine (9) work weeks in 1967. Plain- tiff then entered military service, returning to defendant’s employ on October 7, 1968 and continued in such employ through the end of the vacation eligibility period of De- eember 31, 1968, or a total of thirteen (13) work weeks in 1968. Under Article XIV, Section 2, paragraph one (1) of the collective bargaining agreement then in effect between plaintiff’s auth. rized bargaining representative and de- CASA OA 17 fendant (which agreement is attached hereto in answer to Interrogatory sixteen (16), any vacation benefits forth- coming to plaintiff for the year 1969 were contingent upon plaintiff having met three: criteria: 1. plaintiff must have been continuously employed for two (2) or more Decemb2r 31st; 2. he must have had senirrity on December 31st of 1969; and 3. he must have received earnings in at least twenty- five (25) work weeks in the twelve (12) months immediately preceding December 31st of 1969. Thus, plaintiff failed to meet the twenty-five (25) week earnings requirement of the third contingency noted above and was denied vacation benefits for 1969 for this reason. Contrary to the allegation of paragraph ten (10) of plaintiff’s complaint; plaintiff’s military service was recognized as affording compliance with contingencies one (1) and two (2) set forth above. Had these two criteria, based on length of service, been the only criteria necessary to receive vacation benefits, plaintiff would have qualified. However, plaintiff failed to qualify for vaca- tion benefits for he did not satisfy the criteria of cor- tingency three (8) set forth above. Inasmuch as the earnings requirement of contingency three (3) is not an attribute or prerequisite of seniority or length of service, but rather a qualification based upon time worked and thus earned toward vacation benefits, defendant was not obligated to award plaintiff vacation benefits for the year 1969. 18) In defendant’s answer to plaintiff’s complaint what are the facts upon which defendant bases its de nial of the averments of paragraph XII of the plain- tiff’s complaint? Please refer to the answer provided for Interrogatory number seventeen (17). WPF, GO ae hes il 18 ‘9 Richard L. Thornburgh _ United States Attorney. Blair Griffith Assistant US Attorney SAR BAL RO RN i OF COUNSEL /s/ Richard F. Schubert Richard F. Schubert Solicitor of Labor /s/ Louis Weiner Louis Weiner Regional Solicitor /s/ Sidney Salkin Attorney UNITED STATES DEPARTMENT OF LABOR /s/ Charles A. Patten Charles A. Patten Vice President and General Manager-Engineering Works Division DRAVO CORPORATION 19 ANSWER TO INTERROGATORY ELEVEN (11) FOLLOWS THIS PAGE er CRETE TS aS 20 eer . yy “SENIORITY REGISTER DRAVO CORPORATION ENGINEERING WORKS DIVISION - NEVILLE ISLAND - AUGUST 1, 1966 | | i —_—__ ‘ | ‘ ‘ , j ‘ tHe CHES RIGGER (CONTD) _ é [7 |i.” Rueert, velvin b. “TTD 2") aiteaekgs A www. Kevish, Joserb 4d 1-15-51 we. Sithor, Guido wd cove 11-15-51 RIGCER (CONTINUED) q wwe Olenik, John oe pei 8-13-51 ] —_ Krobot, Roy J. jel ocan | 4-6-5 G lasme XOrtr2r, Alex seri cove | 11-12-52 4 Scisrretti, Jaxes A. Jr pose ee . laamwe altonrdsush, Wesley serie 12-B0-s/ 4 poet Millantz, Jcbn M. - 1 ce: id [ewe Shero, Albert Ieee ceoe | 9-23-52 = [ teoeg Fe, Coavies, Jr. bes ep ie Weicner, Earcld woot |/2- PS 3 | i, Baker, Andrew R. ‘oes! ep | re 4 fo, Vilezale, mes ye mn ny 6-27-55 “ine Kroll, Jchn. elcome = £- 1 ~ eal tse _ Chories 1. | (J coos | QS O'tRew se,-Vilijas C. 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Ferd Tea at oe = sre 2 TS ee 2. asa, 'Scbse] Jr. heel cose | 12-12-63 1 7neee Jodisard, tichoe) Jy - Hey re | mas » yo 7L- bats ai *dv2d wets or Ge Toe e { wee 8 a anaes 2 : i [nace vi ~~ eet * - . ‘oe t M cane E2lte.: rie ree re ort cme eves _ C1200 914, io sds aw Stey242 nos wid fo a tioylae ‘thes72 7 JR ARSON SE Ca SAIGON 3 8 . - ‘ 7 » . Dich PEAR ae Bee ACN ere eet _) 24 SENIORITY REGISTER DRAVO CORPORATION ENGINEERING WORKS DIVISION - HEAVY METALS - AUGUST 1, 1968 » . . _——”, Budak, Frask | save 7-25-27 RIGSER (CONT'D) __Purnscosky, Andrew | re 4-29-31 _ RIGCER (CONT'D) . ie, am Bows, M0722 Ie... ivoplsoe 5-i- scoe 5226-33. * ( r » [63548, Pose J. s Jeui- a ~ pave dveclierti, "4005 ea J, | eos} soos -36-66 . CL) J aes So : ~s,Sees 4-5 OO - { vq __Dremllo, !anslow fete G-18-34 _ { Pavlik. Abn D \ nes! cone | Bed ehO ‘Kvn SOltrea, H4ehsad Ay Te 3 | et rand eves | 5=3-27 ; | its, Coer: Cs or: oe 5-16-36 nae a ne~s eee a. fein Se | | J o aL . ~=*, § | woes Teylor, Janes A. ‘sees se | 1 _ ~ Yurze, Andrew Jr. | | Lbs Mar, 8 2. seer cone | B1B-60 _ asug “2, Some — .--~om - A Se=a, Joseph : seed nar 8-16 bi } Paalaw Maal lees cnae 6.24.44 ; OUTER = _ Satters, Ea-ard t=" £228 10-25-41 L- — “Pauatank. Patures | eee coos $A5L 44H ms Ctr ii Nrwbrat, Pobsyt Je oP soos 5 -*+ = - =, Dorr: rd oN entero"! COCO Ne oe eee { { lena Sans “St aed 4 5.6.44 ; 1 woue L e. ? Uwe = cose g 7 = i lp). 722 ste s. a T 7). { sevemcsa, ASC gece | 1029-29 : 7 ms Late: Ricmrd c. . d +2. u 1T7 tf oe 48 % css ty a i d.4A./ \, |. -s 2, lee * £ere - a! ft 7 a Charles A. |. | mi 1-10- on Ak 2 Se yt | Yeil 65 re | Purana, zy ncrey TT. 5-21-20 ‘ eet Cps erran, r o frecle oe fl . Stoaben nS, THebint ee pire see : : ; rae Aa | 2 tore! eros F 3 : Rumvert, ielvia L. ad | 1-23-49- | is wevish, Joseph faacet =k [2-25-51 _ Ito vm am - Tae = 8 ener pickas Bs - lecel eng | 1-15-54 | rT... Poughcrce.) tee asd 6, ere | 3=91465 © ea ORR ere SS head e cpe 20-23-35 * pt - | 12 3 = At ‘tenth, Utohy ‘ener! cove | 8-5 3-51 SP PEEGJebstobe roy aoe . + —_ = peutic Tortear, Alcx 1 11-22-31 Leong Soto orathd, F728 Ae Mees core | bai d-65 fd tee Odio rit, Pronk J. 7 Sewn pyvawssta f ; £->s - : 1 ' ? ‘ : . « | | meme Sk: ery Aloert - paar ome i aS bet navn it Lirnia. Sahn Sh T = ss T bed RAS . H } mwawe -.- avits, Aur. LS j -0r croe 16-2056 i... Yoltortsu a, vestey ! |! 1412-20-43 weg 7 raw, Atte? R, rt oes T29=25_ TP Pattaeel atti oT. J one | 0218-35 - —_-k- 4 - * f = : > 2 ra Lbaue 2hGcer, Fszcl@ c. |. Ve P50 ces tees TEN Tey elas | Cab 05 7. Ore eee Ted eins 15-25-38 | : ‘ { if 5 : 4 £708 —_ -37 1 ot Getay, Jahn 6, oat 11-57 — Ree peice SS oe pany nace 2101-69 rare er k, Sscurt C. Jr T. “t 2 4el5257_- Te Betis 7s beeh W seer cone a wwren a Meksi2, C27rd David fn, | 5-14-40 Seek, Ecc: . esce ao mowe = je $2233, Hinrtss © EE ET, | teens Gerven, oo A Te L Af ge ueeds Cakes de tog Ce | fo, Yilsen, Johnnte 4A, st eieest lees tthtat, ed Be sre seet 1=2h-66 Lo esir, fell aeeg ‘923 Saiscak, Jona A. Jr. ew cee) _J2'd-57 _ 4 levee MELT, GTS He ae tees Fu +b 66 eee MOD Dewsth. Poo. aoe core -/90-°9) Spicak, Jozsph T. ‘esetl cous J 204 G TE Chg atcha soc, Rae e, :: bea 4 : i 1 Crorsy notsrt “Voeedd od 16-45 — - ees i, Feitea om ee 1-9-!6 T nou —s =f aya | 2 a] 1915-95 Pres t L +f aren 2. and 4 2. vere a | __ WORKED CREDITS RH = REHIRE (1967 [1968 (1967 T1908 | Q_- ouIT Wells, Haywood 4 1517 M, Homewood Ave., 9-15-65 n. 64 Q - 8-59-68 a sed Pittsburgh, Pa. 15208 ¥s 22 Strib?ing, Ralph Jr. | 826 \hiteside Rd. 10-18-65 | 51 | 49 | 64 | 76 a2 pittsburgh, Pa. 15219 “~~ é ° F re Eneloff, Ronald J. 2010} Forbes Ave. 10-26-65 46 | bo | && | 2 ->aQa Pittsburgh, Pa. 15219 . i. a : ui Wilezak, Stephen J. 1887 Oakbine Ave. 11-15-65 51 48 64 T2 . é O Coraopolis, Pa. 15108 ° ' ; Z 40 The Company and the Union shall each appoint three (3) persons to a Committee who will meet periodically, but no less than three times a year to evaluate the ques- tionnaires and endeavor to determine relative order in which applicants will be given the opportunity to be promoted to higher skilled or graded classifications. Should the Committe be unable to agree with respect to a given employee’s qualification or position on the list of appli- cants the Company shall make the decision. Employees on the Committee shall be paid for the time spent attending evaluation meetings scheduled by the Manager of Industrial Relations but in no case more than sixteen (16) hours to any individual or a totai payment of forty-eight hours to the Union Committee at any one evaluation meeting which may or may not extend over two days. Employees attending meetings other than eval- uation meetings will be governed by Article XI, Section 5. When no eligible employee is available to fill an exist- ing vacancy, the Company shall secure qualified personnel from any other source. All disputes arising under the terms of this Section are subject to the grievance procedure,.including arbitration. However, no liability shall exist on the part of the Com- pany for action taken under this Section except from no more than forty-five (45) days prior to final decision of any grievance filed with respect to such action which re- verses the action taken by the Company. Section 5 An employee who has been transferred or promoted from one job to another in the Heavy Metals Plant with- in the bargaining unit shall retain and accumulate seniority in his previous job classifications. An employee who has been transferred or promoted to a job in the Engineering Works Division outside the bargaining unit or an e’nployee permanently transferred to locations other than Neville Island shal] retain and accumulate seniority in his previous job classifications for a maximum of five (5) years from date of transfer and thereafter shell retain accumulated seniority orly. Effective Octo- ~ 41 ber 1, 1966, those currently working outside the bargain- ing unit who were transferred five or more years prior to October 1, 1966 shall retain their accumulated seniority to October 1, 1966 only and those transferred within five years prior to October 1, 1966 shall continue to accumu- late seniority for a maximum of five years from date of transfer and then shall retain. Seniority in any new job classification to which an employee is permanently transferred or promoted shall date only from the date of his entry into the new classi- fication. Example: An employee was hired on January 1, 1938 in the Labor Department as a Laborer. On January 1, 1939, he was transferred to the Sheet Metal Shop as a Laborer. On July 1, 1939, he was transferred to the Pipe Shop as a Laborer. On January 1, 1940, he was promoted to the new job classification of Drill Press Opera- tor (Machine Shop). On January 1, 1942, he was transferred to the new job classification of Machine caper ator (Machine Shop). On January 1, 1943 he was transferred to the new jub classification of Machine Op- perator (Structural Shop). On January 1, 1944, he was promoted to the new job classification of Inside Machin- ist (Machine Shop). On January 1,-1945, he was transferred to the new job classification of Inside Machin- ist (Repair Shop) where he remained until January 1, 1947. As of January 1, 1947, his total seniority in each job classification was as follows: a ene net Wak ghar Pe EI Re ea BT Oe Ne ee a wos & | eee cman REE Bae a ROS RIN RIMMER EAE a * : -§ : i 42 As of January 1, 1947 Total Seniority in Job Classification Each Job Classification Laborer 2.2.20... ...cce.cceceecceeeceeeeeeceeveceeeeeeeeeeceeeseneeceeese 9 years from 1/1/38 Drill Press Operator Machine Shop) ................2......20-:ceeseeeeeeee ees 7 years from 1/1/40 Machine Operator (Machine Shop) .o..........0000..cccccceeceeeeeeeeeeee 5 years from 1/1/42 ’ Machine Operator ; (Structural Shop) 2.000.000.0000... 4 years from 1/1/43 Inside Machinist (Machine Shop) 2000....0000.0..0.cc00cceeeeseeeeeeeeeeeeee 3 years from 1/1/44 Inside Machinist (Repair Shop) ........ aideapuietuchadtbcsionsenesteene 2 years from 1/1/45 Those employees having seniority in the Heavy Metals Plant, Engineering Works Division on the effective date of this agreement and working in the Light Metals Plant, Fabricated Products Division, shall continue to retain and accumulate seniority in the Heavy Metals Plant, Engin- eering. Works Division. It is mutually agreed that any employee of the Engineer- ing Works Division, Heavy Metals Plant, who refuses a recall or transfer or assignment to a higher job classi- fication in which he has seniority rights and chooses to remain in a lower job classification shall sign a seniority waiver thereby waiving his immediate bumping rights into such higher job classification and relieving the Com- pany of any liability for the difference in rates of pay for the period he does not work at the higher job classi- fication as a result of the waiver and his seniority in the waived classification shall be retained but not accumulated until sueh time as he actually returns to work in the waived classification after filing revocation of the waiver as provided in the next paragraph. However, where the rate of pay received by an employee in a higher job classification is less than the rate of pay received by the employee in a lower job classification, the employee will not be required to sign a waiver in the higher job classi- fication if he chooses to remain in the lower job classifica- tion. When an employee is currently working in the PREACH PANON MER ITN EPPA RARE ORE EF CON He AER OOH HRIIA CE HAMS I Se RAR PD ENG TRS LRA ER 43 Heavy Metals Plant and chooses to invoke his seniority — in a lower job classification because he is unable to per- _ form his duties in higher job classification, he may sign a waiver providing he is not displacing another employee currently working in the lower classification. Employees temporarily assigned to other classifications shall not be required to sign a waiver covering such temporary assign- ment. Employees who have rescinded their waivers prior to August 1, 1954 but have not been placed at work in one of their higher waived job classification as of Aug- ust 1, 1954 will have their accumulated seniority in the higher waived job classifications retained but not ac- cumulated from August 1, 1954 until they do return to. work in the waived ciassifications. It is further agreed that the employee shall forfeit all bumping rights in. the waived classification until. he has notified both the Company and the Union in writing of his desire to invoke his rights in the waived classi- fication and he must wait until an opening ocurs in the classification, after receipt of written notification, at which time he shail be given the first opportunity to in- voke his rights in the classification; if, however, the em- ployee is being laid off in his current job classification, he may invoke his retained waived seniority upon five (5) days’ notice to the Company of intention to exercise his seniority rights. It is further agreed that the immediately preceding two paragraphs apply to those employees who were on the active payroll as of September 27, 1957 and those hired subsequent to that date. Waivers signed prior to January 21, 1949 by employees out of service on January 21, 1949 shall not be affected by this Agreement and their waived seniority remains forfeited. Nothing in the immediately preceding three paragraphs is to be construed as being applicable to shift transfers or transfers from one department to another. — Section 6 Where no work is available to any employee in his present job classification, he may invoke his seniority in any other job classification in which he has sufficient 2 PGP LEEDS EE SO ELM LOG SOLE EE TAT LEI TE PE NA AE ts ee ae 44 seniority to be employed at the expiration of the notice of layoff required to be given the displaced employee under : Article VI of this Agreement. Where an employee is : about to be laid off because no work is available to him in his present job classification, he shall be notified of his “bumping” rights, (i.e., his right to be transferred to former job classifications) and he may invoke his right to be transferred to such former classification in the Heavy Metals Plant or the Fabricated Products Division, Light Metals Plant, in which case the transfer shall be made at the expiration of the notice of layoff re- quired to be given the displaced employee under Article VI of this Agreement, provided, however, that an em- t ployee, who, on being given his notice of layoff, immedi- 3 ately invokes his bumping rights shall not lose more than : one (1) day’s work by reason of such notice to the dis- ss placed employee. : Whenever an employee is laid off and out of the Heavy Metals Plant, he shall be given a notice for rehire in any job classification in which he has sufficient seniority = to be rehired when such werk first becomes available. Whenever such an employee is notified to report in any job classification other than his highest job classification as defined in Section 2, and does not report for work or present a reasonable excuse within five (5) days, he shall not: be entitled to any further notices to report in the job classification for which he was notified to report or any other job classification of equal or lower pay, how- ever, the employee shall have the right to invoke such seniority if he has sufficient seniority to be employed and gives the Company at least five (5) working days’ notice in order that the displaced employee may be given the notice required under Article VI. Prior to the return of laid off employees during the five (5) day reporting period, the Company may use any workers available to do the type of work for which they are notified to report, provided that notice to return to work has been mailed to some eligible employees at least five (5) days prior to the start of such work. Et re ee rere hE Ce ene Bee BERS PRL RRP ES BME RIFE APRA, y : aon f= elaine, Oe prema eee eee pee et = “ re 4 45 Section -7 Employees shall lose all seniority rights in all job.classi- fications in which they have such seniority rights if: a. They voluntarily terminate or quit. b. They are discharged for proper cause. ec. They do not report for work during a period of layoff out of the Heavy Metals Plant when notified to report for work in their highest job classifica- tion unless within five (5) days they present a rea- sonable excuse. An employee’s highest job classi- fication means the, or one of the, job classifications in which the first class rate is the highest. d. Employees hired as new employees on or after October 1, 1961 who had thirty (30) days’ to three (3) years’ seniority at time of layoff and have been laid off.and out of the Heavy Metals Plant for a period of six (6) months or more; however, if such employee is re-employed within—one {1} year after = expiration of such six (6) months, in the same classification in which he was laid off or satisfactor- ily completes the thirty (30) day probationary period after reemployment if rehired in a new class- ification, the employee will have added to his senior- “ity all unbroken service during his last previous employment prior to being laid off or they had three (3) years’ to ten (10) years’ seniority at time of layoff and have been laid off and out of the Heavy Metals Plant for thirteen (13) months or more, or they had ten (10) or more years’ seniority at time of layoff and have been laid off and ou: of the Heavy Metals Plant for twenty- four (24) months or more. Employees hired prior to October 1, 1961 who had sixty (60) days’ to ten (10) years’ seniority at time of layoff and have been laid off and out of the Heavy Metals Plant for thirteen (13) months or more, or they had ten (10) or more years’ seniority at time of layoff and have been OOS nt yh LEROY NINES IRE RIND LEITH SLEEP TOPLESS ERSTE TINE ES NR ROT IOS accuracy 46 laid off and out of the Heavy Metals Plant for twenty-four (24) months or more. Length of retention of seniority rights shall be determined solely in accordance with the employees’ seniority at time of layoff. e. They are absent from work without explanation for a period of five (5) work days. Where there is good cause for such absence, the reason for the absence may be explained after the end of the five (5) days without loss of seniority. Section 8 Absences because of illness or injury or periods wher an employee is unable to perform his higher job classi- fication work because of illness or injury but is em- ployed in a lower,job classification shall not affect seniority rights and inere,will be no liability for the difference in rates off pay on the part of the Company while the employee is working in the lower job classification; how- ever, after a period of eighteen (18) months in cases of employees having up to ten (10) years’ seniority as of last day worked prior to such sickness or injury or after a period of twenty-four (24) months+in cases of em- ployees having ten (10) or more years’ seniority as of last day worked prior to such sickness or injury, seniority shall be retained but not accumulated. Should this em- ployee working in. a lower job classification wish to re- turn to his higher joh elzssification, he sha!] be permitted to do so provided he shzll notify the Manager of Indus- trial Relations at least five (5) work days prior io the date he wishes to return to the higher job classification in which he has seniority rights. In cases involving oc- cupational injury or occupational disease suffered during the course of employment wiih the Company, seniority shall be accumulated but all other conditions of this para- graph will apply. An employee who is granted a leave of absence shall re- tain and accumulate seniority for the period of the leave of absence. However, an employee who does not return to work within ten (10) days after the expiration of a i eset o & 47 leave of absence shall be considered to have quit his em- ployment at the expiration of the leave of absence. Any employee incapacitated by compensable injury or compensable occupational disease while in the employ of the Company to the extent of being unable to do his regular work may be employed in any other work in the Heavy Metals Plant that he can do without regard to any seniority provisions of this Agreement except that such employee will not cause the, layoff of anyone work- ing in the Heavy Metals Plant and will not acquire seniority in such classification. For each incapacitated employee working out of classification an employee laid off in that classification and out of the plant shall have ‘the period of his retention and accumulation of seniority extended by the period the incapacitated employee works in the classification. The incapacitated employee may only be “bumped out” by an employee having greater seniority in the assigned classification who is currently working in» the Heavy Metals Plant and exercises his rights at the time of layoff in a higher classification. Section 9 In order to promote efficient administration of this contract and to minimize any misunderstandings as to its meaning, it is the policy of the Company and the Union — to have it administered by the same people throughout its term. To this end, top seniority is provided for the following Union representatives. Each of the following representatives of Local No. 61 shall have top seniority rights in the job classifjeation he holds at the time of his election or appointment, or any lower paid’ job classification ‘ih which he has previously been employed when work is not available in the job classification he held at the time of his election or appointment, so long as he is able to do the work, for his term of office. , Members of the Negotiating Committee, not in ex- cess of seven (7); Grievance Committeemen, not in ex- cess of five (5); Stewards, not in °xcess of one (1) for each department on the day shift and if on the second or third shift a department shall regularly employ thirty “4 4 3 4 Rother VAXSE ALA a AE 4 § : a BJ x % 4 : ¥ 3 2 3 Pd a Pe Eee OR A RL ee re adits ee 5 48 (30) or more employees, one (1) Steward shall be al- lowed in such department on the shift or shifts employ- ing thirty (30) or more employees; other Officers of the Union, not in excess of eight (8). The Union shall promptly notify the Industrial Rela- tions Manager of the Company in writing of the em- ployees who have or who have ceased to have such top seniority rights. Section 10 An employee inducted into the Armed Forces of the United States shall be given the minimum reemployment rights granted him under the Selective Service Act as amended. If, at the time he applies for re-employment under the terms of the above-mentioned Act, his seniority is not sufficient for him to be re-employed, he shall be considered as being laid off as of the day following his discharge from the service regardless of the date on which he actually applies for re-employment. Section 11 The Union will supply the Industrial Relations Man- ager with a list of employees desiring a change in shift. When openings occur on these shifts, the employees so listed will be transferred in order of seniority among those on the list, provided such transfer will not disrupt the operation of either shift, but in no case, provided such openings exist, shall an employee be refused a trans- fer from one shift to another shift in the same job classification for more than four (4) weeks because of such disruption. Whenever such changes are made, no right shall exist under Article XV, Section 1, of this Agreement. Section 12 The Company shall empioy not more than one (1) apprentice for each five (5) machinists, other mechanics in various trades, and specialists. Apprenticeship shall be for four (4) years except machinists which will be nts 49 three (3) years. Apprentices shall have no seniority rights during the term of their apprenticeship and may be discharged at any time that the Company determines that the apprentice does not display proper aptitude for the trade. Apprentices may be assigned to do productive work but shall not be assigned to work for which there is a governmental requirement that such work be certi- fied to or signed for by a mechanic, except under super- vision of a mechanic qualified to sign for such work. Regular apprentices shall not be affected because of any layoff or other employees; provided, that said ratio shall not be exceeded. When an apprentice has completed his course and received a certificate certifying that he has learned his trade and is assigned to a particular job classification within that trade, he shall have up to four (4) years’ accumulated seniority as a Helper in that classification dependent upon his length of service as an apprentice. Section 13 In each instance where a job classification in Appendix “A” of this Agreement supersedes a job classification set forth in Appendix “A” (Job Classifications and Wage Rates) of the collective bargaining agreement dated Sep- tember 7, 1945 and March 14, 1947, the seniority of the employee in his old job classification has been added to and made a part of his seniority in the new job classi- , fication. All seniority accumulated in an obsolete classification, such as but not limited to Reamer, Heater, Sticker, Riveter, Countersinker, Bucker or Bolter, has been ap- plied to the first currently used classification into which an employee was reclassified after leaving the obsolete classification. Future determination of the obsolescence of any classification presently contained in Appendix “A” of this Agreement, shall be by mutual agreement between the Company and the Union. Section 14 A seniority register known as Appendix “D” to the collective bargaining agreement dated March 14, 1947, CELE NE LEA IOE LAREN ee aS PELE PAE IRE AS tt tan PERE ARR AR. Eons : 50 between the parties has been agreed upon by the Com- pany and the Union and is deemed to be final and correct as of January 1, 1949 and no appeal is permitted therefrom except those cases then pending arbitration. A revised seniority register, attached hereto and made a pert hereof and marked Appendix “B”, showing. the seniority standing of each employee in each job classifica- tion shall be posted once each year in a place accessible to all employees and will be revised as of August 1 of each year. The first revision shall be as of August 1, 1949. An employee will have sixty (60) days from date his name appears on such revised roster to appeal his roster date or relative standing thereon; it being under- stood that such appeal may be made only on the stand- ing as then posted and that the employee will not be permitted to appeal standings previously posted. In case an employee is off on leave of absence, vacation, sickness, disability or suspension at the time roster is posted, the time limit provided for herein will apply from the date the employee returns to duty. If no appeal is taken within the sixty (60) day period as provided, future appeals will not be entertained. A note will be placed on each roster stating the time limit of appeal. The Union shall be given copies of seniority roster when posted. * * * * * ARTICLE XIV VACATIONS Section 1 Effective December 31, 1966, vacations for eligible employees, as defined in Section 2, will be calculated as of December 31 each year. On the first December . 31 of employment he will be given four (4) hours’ vaca- tion with pay at his base hourly rate at the time of taking the vacation for each month in which he worked ten (10) or more days between his hire date and De- cember 31, up to a maximum of forty (40) hours. On the second December 31 of continuous employment he will be given one (1) week and two (2) days vacation of fifty-six (56) hours with pay at his base hourly a peat es sRaets ‘ ; m wt ee ee eee mnt | 51 rate at the time he receives his vacation pay to be taken at such time as the Company shall designate. On the third December 31 of continuous employment he will be given one (1) ‘week and three (3) days vaca- tion of sixty-four (64) hours with pay at his base hourly rate at the time he receives his vacation pay to be taken at such time as the Company shall designate. On the fourth December 31 of continuous employment he will be given one (1) week and four (4) days vaca- tion of seventy-two (72) hours with pay at his base hourly rate at the time he receives his vacation pay to be taken at such time as the Company shall designate. At the fifth December 31 of continuous employment and through the ninth December 31 of continuous employment, he will be given a two (2) week vacation of eighty (80) hours with pay at his base hourly rate at the time he receives his vacation pay to be taken at such time as the Com- pany shall designate: At the tenth December 31 of con- tinuous employment and through the nineteenth December 31 of continuous employment, he will be given three (3) weeks’ vacation of one hundred twenty (120) hours with pay at his base hourly rate at the time he receives. his vacation pay to be taken at such time as the Company shall designate. At the twentieth December 31 of con- tinuous employment and through the twenty-ninth De- cember 31 of continuous employment, he will be given four (4) weeks’ vacation of one hundred sixty (160) hours with pay at his base hourly rate at the time he receives his vacation pay to be taken at such time as the Company shall designate. At the thirtieth and subse- quent December 31sts of continuous employment he will be given five (5) weeks’ vacation of two hundred (200) hours with pay at his base hourly rate at the time he receives his vacation pay to be taken at such time as the Company shall designate. If an eligible employee is laid off prior to taking his earned vacation, the Company — will pay the employee such earned vacation at the time of layoff, regardless of when the employee’s vacation was scheduled and no further vacation right shall exist. ofl oi 4 4 : ; Saw teteac 5 llDendl SNS che RR Ai taunt ab imams dled omnes a a BIO LE TM et en 2 a Re CED tly toy ota! oa 52 Section 2 In order to qualify for the foregoing vacations, an em- ployee who has been continuously employed for two (2) or more December 31sts and has seniority on the cur- rent December 3lst must have received earnings in at least twenty-five (25) workweeks in the twelve (12) months immediately preceding the current December 31st. However, employees who are laid off during the year im- mediately preceding December 31st and because of such layoff do not qualify for a vacation under this Section ‘will be given a pro-rata vacation to which they might otherwise be entitled on the relationship of the weeks they did work to twenty-five (25) weeks but in no case more vacation than they would have received under this Sec- tion if they had worked twenty-five (25) weeks or more. For purposes of eligibility for vacations, absence from work due to occupational injury or occupational disease up to twelve (12) months immediately following date of beginning of such absence will be included as time worked in the said immediately preceding twelve (12) mnonths. “Continuous employment” as used in this Article means continuous seniority since any break in such seniority ‘caused by any of the reasons enumerated in Section 7 of Article X of the Agreement. Section 3° . Where an eligible employee has worked a six (6) day week for not less than thirteen (13) nor more than twenty-five (25) weeks during said twelve (12) months, he shall be granted an additional four (4) hours with pay at his base hourly rate at the time he re- ceives his vacation pay for each week of vacation to which he is otherwise entitled. Where an eligible employee has worked a six (6) day week for twenty-six (26) or more weeks during said twelve (12) months, he shall be granted an addi- tional eight (8) hours with pay at his base hourly rate _ at the time he receives his vacation pay for each week of vacation to which he is otherwise entitled. SEES EL LIOR L ES LD NINE OEE RYE EE IOC IIE TEAS GEESE TA Pa oP kT pet 53 Eligible employees shall have the option of taking either full regular workdays with pay or be paid in cash for the additional vacation resulting from working the re quired six (6) day weeks. At the time of scheduling his regular vacation, the eligible employee will exercise his option by either scheduling the extra workdays off with pay or indicating he prefers cash in lieu of days off. The cash will be paid at the time he receives his va- cation pay. “Periods of less than a full day will be paid for in cash rather than time off. Section 4 Any employee who has qualified for a vacation under Section 1 above may use all or part of his earned vaca- tion to offset legitimate absences of three (3) days or more to the extent of his earned vacation. Legitimate absences shall mean an absence because of sickness of the employee or members of his family which requires his absenting himself from work or a death in the family. Section 5 Nothing in this Article shall be construed as granting an employee more than one (1) vacation in any calendar year. Section 6 Employees retiring prior to December 31 of the cur- —— ae SUMS CAIVERT YS rent year will tz paid that portion of the vacation they would have earned as of December 31 of the current year had they not retired as the number of weeks in the current year in which they performed work bears to twenty-five (25). For example, if he performs work in two weeks he would receive 2/25ths of a vacation. Section 7 If an employee dies prior to December 31 of the cur- rent year payment will be made as provided by law of that portion of the vacation he would have earned as of December 31 of the current year had he not died as the number of weeks in the current year in which he per- formed work bears to twenty-five (25). For example, if i a NF eG TL OER tote, | 54 he performs work in two weeks he would receive 2/25ths of a vacation. ARTICLE XXIV GROUP INSURANCE PLAN Section 1 4 Each eligible active employee will be entitled to par- ticipate in the Company’s Group Insurance Plan to the extent provided in the Schedule of Benefits briefly set forth in Appendix “C” to this Agreement and more fully described in the Dravo Insurance Certificate which is in- corporated herein by reference. This insurance program shall be placed with a reliable insurance firm and the cost of such insurance will be paid by the Company ex- cept for Supplemental Life Insurance which will be paid for by the employee. The employee will provide the Com- pany with an authorization to deduct the cost of this insurance from his pay. : All employees are eligible to participate as of the first of the month following sixty (60) days after employ- ment. Section 2 This Article shall not be construed as requiring the continuation of any insurance benefit beyond the termi- nation date of this Agreement. This program is subject to amendments to conform with or to.recognize benefits that are or may be provided by any State or Federal Law. In no event shall the benefits of this plan provide benefits duplicated under State or Federal Law, except to the extent that the bene- fits payable under this insurance program exceed the benefits payable under such laws. 2 * * * ARTICLE XXVI PENSIONS AND RETIREMENT The Company and the Union have reached mutual agreement on the subject of pensions and retirement and De EAI CUR EIS II 55 the same is contained in a separate supplemental agree- ment dated September 27, 1950 and supplemented in October, 1965. IN WITNESS WHEREOF, Dravo Corporation (En- gineering Works Division) has caused this Agreement to be signed by its duly authorized officers and its corpo- rate seal to be affixed hereto; the Industrial Union of Marine and Shipbuilding Workers of America, A.F.L.- C.I.0., has caused this Agreement to be signed by its duly authorized officers and its seal affixed hereto; and Local 61 of the Industrial Union of Marine and Ship- building Workers of America, A.F.L.-C.I.0., has caused this Agreement to be signed by its duly authorized offi- cers and its seal affixed hereto; all on the date first above written. DRAVO CORPORATION Engineering Works Division Heavy Metals Plant By: WALTER L. DAVIDSON General Manager Attest: . WM. G. GREER Industrial Relations Manager G. W. ALEXANDER Operations Manager D. W. RAEGLER Plant Manager G. T. LEONARD For Director of Industrial Relations INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, A.F.L.-C.1.0., Local No. 61 By: LEONARD A. THORNBURG President ‘ - PS Bid” OTL ae re koe 56 PHILIP J. HAUSHALTER Chairman, Negotiating Committee JOHN GOOD ALBERT G. FUCHS EDWARD J. MEYER THOMAS R. PIPICH WILLIAM R. FAULKNER JOHN L. TAYLOR INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, A.F.L.-C.L0. By: C. A. LEONE Attest: THOMAS R. PIPICH INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, A.F.L.-C.1.0. By: JOHN J. GROGAN President Attest: ANDREW A. PETTIS Vice-President 4 4 2 a“ £ 57 CERTIFICATE OF SERVICE I, Sidney Salkin, one of the attorneys of record for plaintiff, hereby certify that I served a copy of this Interrogatories Propounded By Plaintiff To Be Answered BY A Responsible Officer Of Dravo Corporation, En- gineering Works Division on defendant Dravo Corpora- tion, on the — day of February 1972, by depositing in the United States mails true and correct copies of the aforementioned in an envelope requiring no postage and sent certified mail, return receipt requested, certified no. 673071 to Charles R. Volk, Esquire, 2900 Grant Build- ing, Pittsburgh, Pennsylvania 15219, counsel of record for defendant. /s/ Sidney Salkin Sidney Salkin Attorney One of the attorneys for plaintiff eo Phe sit Ba riche rRNA ga ANTE . eee ee co ab Laneeicitint Siw Dark Sica gle 2 Sag Fee, Rn Gee hE 58 CERTIFICATE OF SERVICE I, CHARLES R. VOLK, the attorney of record for defendant, hereby certify that I served a true and correct copy of the completed Interrogatories propounded by plaintiff to be answered by a responsible officer of Dravo Corporation, Engineering Works Division, on plaintiff on the 21st day of April, 1972, by depositing ‘in the United States mail a true and correct copy of the afore- mentioned in an envelope sent by certified mail, return receipt requested, certified number 538509, to Sidney Salkin, Esquire, United States Department of Labor, Office of the Solicitor, 1505 Jefferson Building, 1015 Chestnut Street, Philadelphia, Pennsylvania 19107, one of the attorneys of record for plaintiff. /s/ Charles R. Volk Charles R. Volk Attorney for Defendant 59 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA — ei Action No. 71-781 — J aly 2, 1972, 2:25/PM, U.S. Attorney’s Office Pittsburgh, Pa. ] EARL R. FOSTER, PLAINTIFF vs. DRAVO CORPORATION, DEFENDANT PROCEEDINGS Non-Jury Trial in the above-entitled action, commenc- ing at 10:00 A.M. on May 31, 1972, United States Dis- trict Court, Pittsburgh, Pennsylvania, before Honorable Wallace S. Gourley. APPEARANCES: On behalf of the Plaintiff: Sidney Salkin, Assistant U. S. Attorney On behalf of the Defendant: Robert H. Shoop, Jr., Esquire Marilyn Brown Court Reporter [2] (The Court came to order.) THE COURT: The Court at this time will proceed with the trial at Civil Action 71-781. MR. SALKIN: Good morning, Your Honor. THE COURT: Good morning. Be seated. Proceed, Mr. Salkin. MR. SALKIN: Thank you, sir. PELL ELE TEI BELA BOR NG ISELIN IG SLE NLEL TOD HOTLIST aa oo aeeinetaiie oa aad safe Sidhsvenia RPE cS 60 If I may, at first I wish to read into the record cer- tain of the defendant’s answers to the plaintiff’s interro- gatories which have been filed of record in this case. THE COURT: What is your case about? MR. SALKIN: This case, sir, is a claim brought on behalf of a veteran, Earl Foster, who seeks vacation pay and damages from his employer, as one of the re- employment rights guaranteed veterans by Congress, within the purview of the Selective Service Act of 1967. That Act is foune at 50 United States Code Appendix, - Section 459(b) and (ce). These rights which are sought by the veteran here were wrongfully denied him by the defendant, his employer. The issue to be considered by this Court, sir, may be framed as follows: Is a contract requirement which establishes as a pre- requisite to vacation time with pay, that the employees have received earnings a certain number of weeks, a denial of his [3] rights secured by the Act? Now, if I may— THE COURT: You could also add a phrase to that, when the rights were accumulated during military service. MR. SALKIN: I’m sorry, sir. I missed that. Would Your Horor— THE COURT: Shouldn’t you also add to your ques- tion, when the rights were accumulated during military service? MR. SALKIN: Automatically accrued him during his ‘absence in the military service. THE COURT: He did not work during this period. MR. SALKIN: He did not work while he was absent in the military service. That is correct. THE COURT: The question should be posed, when the rights were accumulated during military service, and he would have worked if he had not been in the mili- tary service. MR. SALKIN: That is correct, sir, right. - THE COURT: Because there is a difference. 61 MR. SALKIN: Now, if I may proceed with my earlier request to read into the record certain Answers of the defendant. THE COURT: ‘Anything that has been admitted by the defendant or anything that can be read to me, you may read it into the record, and no testimony need be offered. [4] MR. SALKIN: ~ Very good, sir. I cite first Interrogatory No. 10, which re “State the number of work jveeks worked by the plaintiff, and for which he received earnings from the defendant in the course of his employment by the defendant for each calendar year from the period August 5th, 1965 through December 31st, 1968.” The answer is, 1965, 22 weeks; 1966, 47 weeks; 1967, 9 weeks; 1968, 13 weeks. THE COURT: Why are we interested or concerned with any years except the years 1967 and 1968? The defendant in his stipulation agreed that if this gentleman had not been in the military service, he would have worked during the total ef the period of time that he was in the service. So, what relevancy do the years 1965 and 1966 have to the determination of these issues? MR. SALKIN: Actually, the years 1965 and 1966 have no relevance, from the plaintiff’s standpoint, sir. THE COURT: Why are you reading it into the record? MR. SALKIN: Merely because it is part of the an- swer, part of which does have relevance; and rather than just read the Court a partial answer, I read the entire answer, sir. THE COURT: Well, it might be bétter to just read in what relates to the deter mination of these issues. No Court is interested in something that has no relevancy. [5] MR. SALKIN: Very good, sir. THE COURT: You can always read part of an an- swer. You do not reed to read the whole. MR. SALKIN: All right. The Interrogatory No. 14 reads, “In the period from on or about March 8rd, 1967 to on or about October 7, 1968, had the plaintiff not been absent in the military service, would he have SOR le GBS dik Siler oh | Beat: ELE WAR ABLE he 2 sua 62 worked and received earnings therefor in the employ- ment of the defendant for at least 25 weeks in each of he calendar years 1967 and 1968?” The answer is yes. nterrogatory No. 15— ~“THE COURT: That was also agreed to in the stipula- tion; Why are you reading interrogatories when you have a stipulation? I mean, what is your trial tactic in this? Wouldn’t it be simple— MR. SALKIN: I think that will becorfie apparent when the defendant argues his case. Fifteen reads, “If your answer to the preceding inter- rogatory is in the affirmative, would the plaintiff have accrued vacation benefits for each of the calendar years 1967 and 1968? If so, compute the specific amount of vacation benefits and the nature thereof for each of the calendar years 1967 and 1968.” THE COURT: I notice in the stipulation, you have a place that you left open, each of you. I asked that you [6] agree to everything that is humanly possible. I can- not understand why you could not agree when it comes to a point as to where it is set forth that if the plaintiff is entitled to benefits, the benefits shall be in the amount of blank. Why couldn’t you agree on it? MR. SALKIN: We did this morning, sir. MR. SHOOP: Your Honor, we have. That isn’t the— This is the correct stipulation. Mr. Salkin and i just met yesterday. ‘- THE COURT: Sir, I can me. That is all you gave me. MR. SHOOP: I know, Your Honor. I wonder why Mr. Salkin hasn’t admitted the stipulation into evidence. THE COURT: Sir, your simple way to try it is to read into the record your stipulation. - MR. SALKIN: I hadn’t come to that yet, sir, but I am about to. THE COURT: Well, you do not want to repeat these, now, do you? MR. SALKIN: No, sir. But, you see— THE COURT: Why read interrogatories and answers if you have it in your stipulation? That is what I can- not understand. ly read what you gave scenenenetlinesekneh Walch] an adncinatrmatenas dagen iambmee ‘ 1-4 4 ILE SV IOE ELIS MY RRS Pes IOS set ice nes POOR ENO DIORA OM MR ESE ve ae O00 wtaranoe oes PN ee en MA LOA AE ne ela 67 THE COURT: I do not see where it has anything to do with the case, but if you want it in the record, all right. At least, I will not consider it, unless you change my thinking. MR. SALKIN: Very good, sir. “In the event the Court finds for the plaintiff in this case, it is stipulated ane agreed that the damages in- curred and payable to plaintiff by defendant by virtue of defendant’s denial of plaintiff’s vacation pay and other benefits shall be $377.92.” Now, if I may, sir, I will offer the aforementioned stipulation of facts with its exhibits attached for identifi- cation, and ask that it be admitted into evidence. THE COURT: Admitted. Mark it, Mr. Clerk. But do not offer any oral testimony about anything that has been stipulated. [14] MR. SALKIN: I have no intention of doing so, sir. ‘ THE COURT: Did you attach the collective bar- gaining agreement to your stipulation? MR. SALKIN: The relevant portions which I quoted, sir, are attached. THE COURT: Read me the provision in the collective ' bargaining agreement, if you will, please, that holds that when a man is in the military service—I realize he keeps getting his seniority. Read me the provision of the col- lective bargaining agreement that says that while he is in the military service, it is the same as if he were working, as far as vacation allowance is concerned. MR. SALKIN: There are no provisions in the collec- tive bargaining agreement, sir, providing for any benefits with relation to persons in the military service, other than a simple statement that the—if I may find it here now. THE COURT: Well, there is no man who has any more sympathy to any man who has the guts and the physical and mental capabilities of serving his country, when they hearken to the call of service, than I do. It is just unfortunate that so.many of the young men come home, especially from this dastardly war we have s in Vietnam, and they have no work or no place to go. Le seas ee tere i ea ea ea 2 ae pe ee eae | EURAIL O » ' —— ~~ 68 [15] But where does the Court get any authority to read into a coiliective bargaining agreement something that does not exist? That is my problem in these cases; and this is not the first one of this nature that I have had, as you are well aware. MR. SALKIN: Very much s0, sir. There are several distinctions. Number one, the Court gets the authority from the holdings of the Supreme Court in several cases. THE COURT: The Supreme Court cannot read into a collective bargaining agreement something that does not exist. MR. SALKIN: But the Supreme Court has held that collective bargaining agreements, where they collide with the provisions and rights guararteed to the veteran by the terms of the Selective Service Act, must give way to the requirements of the Act. j THE COURT: * Well, that I cannot buy. MR. SALKIN: | But that is the language of the Court, sir. THE COURT: Well, I have ruled to the contrary. MR. SALKIN: Pardon me? , THE COURT: I have ruled to the contrary, [16] as you know. . MR. SALKIN: I know. I know, sir. Now, going back to your first question about the right— THE COURT: You had better present your case on facts first. When you tell me you are through with the evidence, then I will hear the other side. Is there any other evidence you have to offer? MR. SALKIN: Simply the answer to your question as to the rights of the veteran, in bas collective bargaining agreement itself. — Section 10 provides that an ‘ensioges inducted into the Armed Forces of the United States shall be given the minimum r 1968. ‘ I would submit that it is still. the law of the Third _ Circuit, as this Court again recognized, of Dougherty vs. General Motors, and in that case, our Third Circuit recognized that it is not a violation of the veteran’s re-employment rights to have a work requirement re- quiring that a person work so many ed have so ~much earnings to qualify for a vacation This is the law of our Third Circuit; and until changed by the Third Circuit or unequivocally changed by the Supreme Court of the United States, I submit that this is still the law. So, therefore, Your Honor, based on your decision in Fees, based on the Third Circuit’s case in Dougherty, I would submit that this case falls squarely within those rules, that an earnings requirement as set forth in the [29] collective bargaining agreement is not a violation of a returning veteran’s rights. In my pretrial memorandum, I have submitted other eases that would all hold-and support this Court’s de- termination, including the Tenth Circuit—the Tenth and the Fifth Circuit Court of Appeals. I would submit that if an employee is to be entitled to more, his union representative and collective bargain- ing representative would have negotiated such benefits for that man. But in this contract, an employee is en- titled to the minimum benefits required for a returning veteran. — I am sympathetic, as is this Court, towards the plight of returning veterans. But in this case, the plaintiff got his job back at an increased rate of pay; he got additional vacation over and above that that he had when he left; and he got on that escalator. All things that 2 were automatically accrued to him becausf of seniority, he received. 77 Through no stretch of the imagination, under this collective bargaining agreement, does vacation auiomati- cally accrue to a person, unless he has worked the requisite 25 weeks or hau earnings in these requisite 25 weeks. THE COURT: Well, how do you distinguish this case from the case that your distinguished adversary, Attorney Salkin, persist has application? The Supreme Court of the United States has ruled, as I understand his position, [80] that when a man is in military serv- ice, it is the equivalent of working. MR. SHOOP: I don’t believe that is what that case— any case of the Supreme Court made the statement that when a man is in the military service, it is the equivalent of working. The Accardi case was not concerned with vacation pay. It was concerned with severance pay. In our case, it is not even working. We are one step beyond that. A man must have earnings in 25 weeks to qualify for a vacation. He must have earnings. He must do more than work. He must have earnings. Maybe this is a distinction without a difference, but I would submit that it is more of a requirement than just working, to have earnings in each of 25 weeks; and I submit that Accardi does not make the statement that Mr. Salkin would submit. I am— THE COURT: I could not find it in a very careful reading of the case, but he again is persisting that it does provide it in substance. Well, we will no doubt be enlightened on this some day by somebody. MR. SHOOP: Well, I would submit, Your Honor, that this Court in Fees and our Third Circuit Court in Dougherty has correctly found the law in regard to re- turning veterans; and to open the door further, as coun- sel for the [31] Government would suggest, is to open the door to possibility of payments for the insurance during the course of a man’s service, Blue Cross, hos- pitalization, anything else that he may be entitled to, that has commonly been recognized as earnings under collective bargaining agreements; and, as Your Honor is fully aware, under labor policy, you earn your vaca- 5 ‘ a, a ; ; oe RE AL oe aoe tae rig 78 tion. You earn these benefits. They do not automatically accrue, as the plaintiff would have us believe. I thank you. THE COURT: You may proceed, Mr. Salkin. You say something about a brief, sir. You discuss all facts in your pretrial statement, and I do not know, un- less you have something that you are going to place in a brief different from what you presented to Court in | the Fees case, what is the use of your rewriting it? MR. SALKIN: My pretrial statement is not a com- plete argument, sir. THE COURT: Well, you have put in all. the facts about your case. You do not need to repeat what is in your pretrial statement. MR. SALKIN: But I would like to argue the law, sir. THE COURT: I do not think I ever denied you the right to argue the law. Your time is unlimited. MR..SALKIN: That isn’t what I mean, sir. [32] That is the purpose of my filing a brief. THE COURT: You mean you want to argue today, and you want to file a brief, and argue egain? MR. SALKIN: No, sir. I want to argue today, and simply follow up with a brief. That is all. Let me first disabuse the Court of any notion that I am advancing the theory that absence in the military service is the equivalent of working. That is not what I said the Accardi case held; and in fact, I do not see that the Accardi case does so hold, and that is not the theory that I advanced before this Court today. What I am simply suggesting to the Court is that under the particular and peculiar circumstances of this case, in any event, that vacation benefits as applied here are a perquisite of seniority; that these are benefits which would have automatically accruec to the plaintiff by his mere attachment to the work fores, by his con- tinuity of employment, of his being on the payroll and accruing seniority. THE COURT: If he had worked 25 weeks in the year. a | 79 MR. SALKIN: I cannot go along with that as a qualification, sir. THE C@URT: That is where we separate and go off in different ways; and as I see it, it is going to require-dn Appellate Court to tell us who is right, whether [33] it is you or I. MR. SALKIN: Yes, it may be so. However— THE COURT: We will know this time next year. Go ahead. There is no difference between this case and the Fees case. MR. SALKIN: There are some very distinguishing differences, I think, sir. In any event, whichever way the Fees case— THE COURT: I wish you would spell them out. I fail to see them. MR. SALKIN: Okay.. To begih with— THE COURT: There is a difference in the number of weeks that this young man worked during the year 1967 and 1968, and there is a difference in his work and a difference in his wages. Certainly there are dif- ferences, but I mean the basic, fundamental, legal issue is the same, isn’t it? MR. SALKIN: The fundamental, legal issues is thc same. THE COURT: That is all I asked. MR. SALKIN: There are distinguishing factors, though, in those cases, THE COURT: Spell them out for me. MR..SALKIN: All right. Number one, in the [34] Fees case, as I recall, there was a work requirement that the veteran or plaintiff have worked for a specific num- ber of hours in order to qualify for vacation benefits. commensurate with his seniority. THE COURT: All right, you have hours in the Fees case, and you have weeks in this case. oe MR. SALKIN: Received earnings in a minimum of 25 work weeks. THE COURT: And in this case, it is wages for 25 weeks, ™~ —ZA | ee eee tai ohana nda eins 80 MR. SALKIN: That is correct. THE COURT: What is the difference? MR. SALKIN: There is a difference— THE COURT: To me, it is the same thing. MR. SALKIN: The difference is the same— THE COURT: I do not care whether it is earnings or wages. o MR. SALKIN: The difference is’ the same difference that the Accardi case applied in the matter of severance pay, where they determined that the real nature of the benefits there was commensurate with seniority, because of the fact that it had as its incentive, not added pay for services performed, but a rew2rd for continuous employment, a reward for continued attachment to the work force. . This is precisely the situation here. [85] THE COURT: My goodness, my friend, if em- ployers have to pay—I wish they could afford to do it financially. If employers have to pay every young man who is unfortunate enough to be called to serve his country, what you say, they will go backrupt. They cannot stay in business, because they are paying out money and they get nothing in return for it. MR. SALKIN:. Sir,,I submit to the Court that, even if that were true or it should be true, that is a matter for legislative consideration; and the statute as it pres- ently reads and as applied by the Supreme Court, I sub- mit to the Court, is otherwise. THE COURT: But Congress can pass no law impairs the obligation of a contract. If you have lective bargaining agreement betwec. an employer and the“union, and a gentleman, a member of the union, Congress cannot pass a law that impairs the obligation of that contract or changes it. Congress, by the Selective Service Act, cannot read something into a collective bargaining agreement that does not exist, and no Court can. MR. SALKIN: I submit that the Supreme Court—If that is the terms on which this Court views it, then I submit that the Supreme Court did just that. 81 THE COURT: I think maybe, with the new [36] complement of the Supreme Court, if they rule that way, they might change the rules. MR..SALKIN: ~ Well, they have done it in a number of cases, sir. First of all, they established the escalator principle, as I have cited before in the past, in the case of Fish- gold vs. Oliver Dry Dock, and they followed up with the Accardi ease, establishing the principle which I have just cited; and of course, the Fishyold case has been reaffirmed in many other cases since that time. I submit also that the Ninth Cireuit Court, in* the ~ Eagar vs. Magma Copper case, in its decision at that time, although it did come out at the time the Accardi case carne out, did not—was not aware of the Accardi decision, as evidenced by the fact that in’ a recent case, the majority of the Court in the Ninth Circuit has now adopted the former dissenting view of Judge Madden; and that case is found at—is entitled Locaynia vs. Amer- ican Airlines. That is dated March 17, 1972, not yet officially reported, but it may be found in 67 Labor Cases, Paragraph 12,537. What the Court said there was as follows: “The narrow issue presented in this: Was this vaca- tion pay a perquisite of seniority, as appellants claim, or was it within the category of other benefits, as American contends? Resolution of the issue turns on the appropriate [37] interpretation of Accardi vs. Pennsylvania Railroad and Eagar vs. Magma Copper Co.,” citing his own de- cision. They went on to state, after citing the Supreme Court’s holding defining seniority, and the escalator principle, they discussed the per curiam reversal of this Court’s decision in the Mayma Copper Co. THE COURT: Which Court? MR. SALKIN: This Ninth Circuit Court, and **on said, ‘“‘We read the Supreme Court summary reversal of Eagar as an explicit rejection of American’s contention.” That is, that vacation pay is another benefit, rather than ¥ PRL CLT, Vee RP BAP - RM pasion de rn Oe ie ied EM eo “ . . . : ” _ FLL AS EY RPE ee er tiaimemam Ml RG Deter - 82 a seniority perquisite, and therefore reversed the judg- ment of the lower Court and found for the plaintiffs. Now. I wish the Court would recognize— THE COURT: Well, all Accardi involved, my friend, was the question of: severance pay allowance for World War II veterans who were being phased out by the railroad, The Court held the railroad was required to compute the time spent by the employees in the military in de-. termining severance allowance, which was based on years of compensated service, as defined in the collective bar- gaining agreement as one day worked per month for a minimum of seven months out of the year. In so holdin®, the Court felt a liberal construction of the term senior'ty was necessary, and that the [38} in- tention of Congress, as expressed in the Act, was to preserve for the returning veterans the rights and benefits which would have automatically accrued to them had they remained in private employment rather than ‘responding to the eall of their .duties. The Court, in Accardi, was concerned with insuring that veterans would be properly credited with, years of seniority: and severance payments in Accardi were based primarily on length of service. It had to do with what these men were to get as far as their severance allow- ance pay. It did not have anything to do with vacation. MR. SALKIN: No, but every Court that has since discussed the Accardi éase has applied the principie of the Accardi case to vacation benefits; and I can cite— THE COURT: I have neyer read one that holds that. MR. SALKIN: Well, I think— THE COURT: Well, which one holds that, under the facts that you have in this case, this gentleman is en- titled to be considered as having worked 25 weeks in the years 1967 and 1968? MR. SALKIN: Morton vs. Gulf Railroad, Gulf, ‘Loiis- jana. THE COURT: What is the citation? Give me all . the facts of -that case. - [39] MR. SALKIN: Let’s see if I have—I may have the entire opinion here, sir. 83 THE COURT: Don’t you know what is in your cases? You should know what you are standing on. You argue that a certain case has certain provisions and certain value. Otherwise, I could hear this under Rule 78. I do not need to hear your argument. You wanted to be heard, so-you certainly should tell me what is in your cases that you say supports your position. Do you tell me you do not know? MR. SALKIN: I have—yes, sir. I have the— THE COURT: What is the citation? MR. SALKIN: You said you wanted the facts of the case? THE COURT: I want the citition, and I want the facts. MR. SALKIN: The citation is 405 Fed. 2nd 415. - THE COURT: What Circuit? MR. SALKIN: This is the— MR. SHOOP: Eighth Circuit. MR. SALKIN: Eighth Circuit, sir. THE COURT: ll right.. What are the facts in this . case? ._- ° MR. SALKIN: The appellant, Robert Morton, [40] begari working as an electrician for the Gulf, Mobile & ° Ohio Railroad Company in 1950 and continued in his employment until April 6, 1951, when he left his position to serve in the United States Air Force for a period of four years. On April the 18th, 1955, five days after his honorable discharge from the Air Force, Morton resumed . and has since continued his employment. In May of 1967, Morton instituted this action seat his employer for recovery of earned vacation pay and for a decree directing the railroad to credit him with the time spent in the military in calculating the length of his paid vacation. Morton contends that the railroad has denied him seniority rights, contrary to Section 9 of the Universal Military Training and Service Act. Federal jurisdiction having been established, the Dis- trict Court denied him— THE COURT: ‘Denied him seniority rights. That has not been denied in this case. ~y 2 EAS OMEN OSA AORN So | Be OTE SOR Pen SA eer ne jal inne 0 be S4 MR. SALKIN: We allege that it has, sir; that vaca- tion pay benefits are seniority rights. THE COURT: It depends how the Court is phrasing that, and using that phrase, that denied him seniority rights. Do you mean they use that, by failing to pay him his vacation, they denied him seniority rights? MR; SALKIN: That is, by failing to—No—[41] to award nim paid vacation, yes, sir. Rights and obligations of the employer and the em- ployees are granted paid vacations, the length of bargaiming agreements. These agreements specified that employees are granted paid vaactions, the length of which is determined for each employee according to the number of consecutive years in which he has performed a minimum number of days of compensated service for the railroad. THE-COURT: They are seniority rights; right? - MR. SALKIN: I presume so, yes. - THE COURT: You cannot presume so. It either is or it isn’t. MR. SALKIN: Well, it is. THE COURT: All right. ; 7 MR. SALKIN: The railroad considered that Morton must have insufficient compensated service in each year following his 1955 re-employment to qualify him under the then effective collective bargaining’ agreement for ten days of paid vacation-in both 1966 and 1967, which is the normal vacation for employees with ten consecutive, years of active service with the railroad. In seeking additional vacation benefits, Morton con- tends that, for the purpose of determining his vacation benefits, the time spent in military service should have been !42] considered as equivalent to compensated em- plovmeiit with the railroad. With such calculations, Morton had achieved 15 years of continuous service with the railroad by the beginning of 1966, and accordingly, he asserted entitlement to 15 days of vacation pay in the year 1966 and in the year 1967. ee Ser . SSE THE COURT: Your collective bargaining agreement differs. This one says that a man has to actually work, work 25 weeks in the year, to be eligible. MR. SALKIN: But that does not say so, sir. THE COURT: This collective bargaining agreement does. MR. SALKIN: No, sir. It says that he must have received earnings. It does not say he must have worked. THE COURT: What is the difference? MR. SALKIN: For 25 weeks. . THE COURT: If you receive earnings or work? If you do not get paid, you do not receive earnings unless you work. MR. SALKIN: In theory, sir, he could receive earn- ings in 25 consecutive work weeks by working one or two days a week. ; THE COURT: If this country is coming to that, what is going to happen? Industry is going to close its [43] doors. There won’t be any jobs for anybody. Go ahead. I just cannot see your philosophy, my friend, but you go ahead. Maybe you will change me. There are enough give-away programs in this country, without making industry pay a man when he does not work. MR. SALKIN: Now, the Court now goes on to «ite Section 9(c) of the Universal Military Training and | Service Act, and reads, “Shall be considered as having been on-furlough or leave of absence during his period of training and service in the Armed Forces, shal! be so restored without loss of seniority,” and that is italicized. THE COURT: We all agree to that. MR. SALKIN: “And shall be entitled to participate in insurance and other benefits offered.” THE COURT: I agree to that. MR. SALKIN: All right. The appellee railroad, in denying Morton’s claim to an increased vacation en- titlement, contends that vacation pay is not an element of Section 9 senisrity, but rather should be considered as one of the other benefits. for the purposes of that section. It is urged that if another employee similarly situated to Morton had been on leave of absence from the f: Se | » -—~— WRRLREE ; : 4 ech) ry sii sen Ka CA Vina SS ke hid Bi a oe Se aps a aA LRTI TE RO Ae 86 railroad, rather than in military service, for the same four years, he would not have performed compensated service, as defined by the [44] collective bargaining agreement, and would not have been entitled to more than ten days of vacation pay in 1966 and in 1967. The issue here, however, s whether the vacation pay is a seniority right under -he statute. if so, Morton’s service time counts. If not, Morton is ‘uy be treated as any other employee who had beén on non-military leave. Morton’s right to increase vacation benefits is a neces- sary perquisite of his Section 9 seniority right. We hold that the railroad’s failure in calculating vaca- tion pay to credit Morton with compensated service time for the period in which he was in the Armed Forces violated Section 9(c) of the Act. Without this inclusion, Morton would not be aecorded reinstatement in his employment without loss of seniority, as iS required by the Act. Eagar vs. Magma Copper Co., 389 U.S. 323 (1967), and Accardi vs. Pennsylvania Railroad Co., 383 U.S. 225 (1966). So here, we have the Circuit— THE COURT: And that collective bargaining agree- ment had the same provisions in it as the collective bargaining agreement kas in this case? MR. SALKIN: All it defined was compensated serv- ice. Compensated service— THE COURT: Sir, you answer my question. [45] Does the collective bargaining agreement in the case that you have have the same phraseology in it as the col- lective bargaining agreement has in the case before the Court? Or is it different, and if so, how is it different? MR. SALKIN: It is different in the following. The collective bargaining agreement in Morton read as fol- lows: “Effective with the calendar year 1965, an annual vacation of 15 consecutive work days with pay will be granted to each employee covered by this agreement who renders compensated service on not less than 100 days during the preceding calendar year, and who has 15 or more years of continuous service, and who. during tae 87 such period of continuous service, renders compensated service on not less than 100 days, 183 days in the years 1950 to 1959, inclusive, 151 days in 1949, and 160 days in each of such years prior to 1949, in each of 15 of such years, not necessarily consecutive.” THE COURT: And the collective bargaining agree- ment before the Court is 25 wees a year of compensated service. MR. SALKIN: Of—All right, of having received earnings. You might—It sounds as if it were for com- pensated— THE COURT: Ard you believe the phrase, “having received earnings”, to # SD 97 of July, on a calendar year basis, they would not be entitled to vacation either for their service prior or sub- sequent to their military service. THE COURT: Tell me this: This veteran and all veterans who work for this company are not placed in any inferior position to that of a non-veteran who does not work, are they? MR. SALKIN: A non-veteran— THE COURT: Suppose an employee had worked for this company, and for reasons of—well, 101 reasons— [62] he could not work. He does not earn and become entitled to his vacation allowances during the time he does not work, does he? _ MR. SALKIN: If you are referring— THE COURT: Does he? MR. SALKIN: In some degree, he does. He is in an inferior position. THE COURT: In other words, any man who has worked for this company, who does not work 25 weeks during a year, regardless of why he is off work, he still earns his right to vacation pay allowance, even though he does not work? MR. SALKIN: Now, you have qualified that, sir, that question, with regardless of why he doesn’t work. Because there is a difference. THE COURT: Suppose he is sick. Suppose he has illness in his family. Suppose his health is such that he has to leave this area and go away for six months out of the year. Do you mean, if a man does not work, he is entitled to the accumulation of the time that he is away, toward the credit for his vacation allowance? Is that right? MR. SALKIN: He is entitled to a pro rata vacation, under the terms of this agreement. THE COURT: That is what this case holds. They said, ‘We cannot, we cannot and we shall not draw any difference between a veteran and any other employee who is [63] away_from his work.” They say this; and it is not placing these veterans in any position inferior to that of a non-veteran on a leave of absence. Fi b. er 3 a ab : RB = 4 sich gg NaN NOS RIO NALS Bian N yA N CIR ce 20 Ah OT 8 GACT NANG OR. [ Tt bier Siecle PEEPS SRE HU HME INTRIGUE LIN 98 Suppose a non-veteran wants a leave of absence, he wants to go to Zurope. He does not get any credit while he is in Europe. Suppose a non-veteran wants to go to the Virgin Is- lands because he has emphysema or he has a heart con- dition. He does not get any credit while he is in the Virgin Islands toward his vacation. He is on leave of absence. MR. SALKIN: However, he does get a "pro rata vacation. THE COURT: If he has worked 25 weexs in the year before he went away, yes. MR. SALKIN: No, sir, that is not what the agree- ment says here. THE COURT: A veteran is not entitled to a better position than anybody else. MR. SALKIN: That is true. He is not entitled to a better position, but he is entitled to the same position as if he had been there. THE COURT: All right. Your distinguished asso- ciate wants to talk to you. You had better go talk to him. He has been trying to get your attention. Your distinguished associate wants to talk to you. [64] MR. SALKIN: I know. THE COURT: I will hear him, if he wants to be heard. MR. SALKIN: What I was trying to point out to the Court— THE COURT: If he is a member of the Bar of some Court, I will. MR. SALKIN: What I was attempting to point out to the Court is contained in Section 2 of Article 14. THE COURT: Of what? MR. SALKIN: Of the collective bargaining agree- ment in this case. THE COURT: What does it say? MR. SALKIN: Beginning with line 20 on page 54— MR. SHOOP: You have got the wrong agreement. MR. SALKIN: Well, it’s the same. MR. SHOOP: You are reading lines, and it is not right. 2 AP LIC AR SS . 99 MR. SALKIN: All right. It is in Section 2 of Ar- ticle 14, and reads: “For purposes of eligibility for vacation, absence from work due to occupational injury or occupational diseases up to 12 months immediately following the date of be- ginning of such absence will be included as time worked [65] in that immediately preceding 12 months.” THE COURT: Well, occupational diseases or injury of an employee, I can understand that. The difference is, he got hurt there. Suppose he was in an automobile accident. Do you mean to say that if he had only worked 23 weeks and he unfortunately was in an automobile accident and was in a hospital for six and a half months, that while he was in the hospital recuperating, he would not get any credit toward his vacation benefits? MR. SALKIN: I submit, also Section 2 further pro- vides, “However, employees who are laid off or are absent because of non-occupational sickness or injury during the year immediately preceding December 31st, and be- cause of such layoff or absence due to non-occupational sickness or injury do not qualify for a vacation under this section, will be given a pro rata vacation to which they might otherwise be entitled on the relationship of the weeks they did work to 25 weeks; but in no case more vacation than they would have received under the section if they had worked 25 weeks or more.” THE COURT: Do you contend that this employer and “he union, when they negotiated this collective bar- gaiving agreement, intended to place veterans in a posi- tion inferior to that of non-veterans? MR. SALKIN: No, sir, I do not. I am merely [66] pointing out this section because of the questions asked by the Court. THE COURT: My friend, you can be right. But this is not the Court that you have to convince. If the United States Court of Appeals for the Third Circuit says, “We are rescinding this opinion, we are no longer following it in the Circuit,” why, that is it. MR. SALKIN: In that case, sir, I have nothing further to say. AoA BOR a 100 THE COURT: Well, I do not know anything further I can say to you. MR. SHOOP: Your Honor, may I make just two comments? THE COURT: Sir, I gave this whole day to you men, and such other period of time as you want. I am not limiting you. MR. SHOOP: I would just like to pcint out to the Court some fallacies— THE COURT: You can well have a problem when you get down to the United States Court of Appeals for the Third Circuit, if I. decide this in your favor. They will say, “Yes—Although two of the Judges are still on the Court, although they are Senior United States Judges; but the fact they are Senior United States Judges does not make any difference. They have as much authority as an active Judge. [67] You had Judge Biggs, Judge McConnell and Judge Kolodner. Judge Biggs and Judge Kolodner sit regularly in the Third Circuit. Judge McConnell has gone to the great beyond. MR. SHOOP: Your Honor, Accardi and the Eagar case submitted only that matters which automatically accrue to a veteran were the rights that he had when he returned. This was recognized by this Court in Fees _and also by the Third Circuit. Here, a veteran has to earn his vacation by working 25—by having earnings in 25 weeks in the course of the year. In Eagar, as pointed out by Mr. Salkin, Mr. Eagar had worked the requisite 75 per cent of tine shifts. THE COURT: What about the equities of this? Don’t you think the.employer might have some duty to give him a pro rata share vacation? MR. SHOOP: No, sir, Your Honor. THE COURT: Maybe you should. MR. SHOOP: I would— THE COURT: I say maybe you should. He worked so many weeks Ym the year 1967; he served his country; he worked so many weeks in 1968. He did not work the required number, but why don’t you get fair? | | ee Se Eee i re pai is i. PEEREEI LINE LF PN GERE SRILA TNE OT Ee ae oer ° a . Behe s SBR obRe OI RIEIY ic ENE PEE AL LIN IE LPERER 101 MR. SHOOP: Your Honor, this is a matter for 5. collective bargaining agreement, as Your Honor has [68] pointed out repeatedly during the course of this hearing. THE COURT: Well, many litigants have differences; they resolve them. Maybe it might not be well to have this-in the books against you. . MR. SHOOP: I would think, Your Honor, that— THE COURT: Many times, I represented a lot of ; corporations and unions when I was practicing law. I & would pay money and settle cases to keep it out of the jawbooks. I did not want to face it. Here is a man who worked so many weeks in the year 1967. He worked so many weeks ‘in the year 1968. He earned something toward his vacation, didn’t he? MR. SHOOP: Yes, Your Honor, but he did not have the requisite requirements to be eligible for vacation. & There are specific instances— THE COURT: All I am suggesting to you, sir, some- times it does not pay to be technical. MR. SHOOP: Yes, sir, Your Honor. I can appreciate the Court’s comments, but, as I say, under the collective bargaining agreement— t THE COURT: Do you want to settle this case? : MR. FOSTER: No, sir. THE COURT: Well, forget what I said. You are not practical and realistic either. [69] MR. SHOOP: Your Honor, that isn’t the issue before this Court, the pro rata share— THE COURT: I know it isn’t. MR. SHOOP: Fine. I just wanted to point it out. Also, the Morton case, as cited by Mr. Salkin, is not on point. The Morton case— THE COURT: Experience has taught me, in 27 years as a Judge, that litigants won’t even take a compromise. They want to go all the way. They do not want to go back to their boss, or their superior, or their employer and say, “Well, the Judge suggested that we compromise this, and maybe we had better do it.” MR. SALKIN: May I suggest— re Abate Ge page ee BRL RE AEE RES EI SL TSS ROO Eee EPL LOD ONE OY oe | } ‘| ; a 2 i 4 ia ‘a 3 4 4 g AOS GE TPL AG: FR AAA ae nes 102 THE COURT: They want the whole hog, or none. I have seen the Government of the United States lose millions of dollars, millions, by not following my sugges- tion to compromise a case. MR. SALKIN: Sir, we were at this very point yester- day; and at that time, it was the defendant who re fused to settle this case, sir. THE COURT: I do not care whether it was the defendant— MR. SALKIN: I just want the Court to be aware of that. [70] MR. SHOOP: But the Court has asked today if the Government is ready to settle, and you indicated no; and that isn’t the issue before this Court, Mr. Salkin. Now, if you want to— THE COURT: I know it is not the issue before this Court. MR. SHOOP: That’s right. I would just like to make two points. THE COURT: The greatest asset and liability that a corporation has today is personal public relations. I would say your personnel director of the corporation and your labor negotiator are the two most important men in any corporation, except finances. They will make or break a corporation. MR. SHOOP: I am inclined to agree, sir. THE COURT: Wouldn’t it build up your stature and position among men and all these veterans to say, ‘Well, ‘we realize under our contract we are not required to do this, but here, you worked nine weeks in 1967 and you worked 13 weeks in 1968. Our contract says we do not have to pay you unless you earned money for 25 weeks, but we are going to compromise. You served your country. We are appreciative of it.” You could build up the greatest public relations with your men that you could ever do. But companies won’t do [71] this; and generally unions will not, do it; and so many, many. times, the United States of |America will not do it. MR. SALKIN: I would like to advise the Court that, on the very precise basis which the Court has PARA ROY nal * ; 1 wae ESS hE OE das AIP ELAR AD REA le OT og eee ee CP LDA EAD SPALL EI 0 ee Sei NOSSO IEG SOT SPALL ILI NS IL EA LEE OT Sa aes aia F SO a Be ae i alate ere ems one’ zs pppastuaptenenaee sist PIR CLADE WE LEASE EE MO ELIA RIERA 103 suggested this morning as a basis for settlement, we were prepared and had been authorized to settle this case yesterday afternoon. THE COURT: You are dealing with a measly—How much money? MR. SALKIN: Three hundred ninety some dollars. THE COURT: Three hundred: ninety some dollars. ‘Each of you, each of you are going to pay a thousand to two thousand dollars, because one of you is going to appeal this thing. But what are you going to gain out of it? MR. SHOOP: Well, Your Honor, I would submit— THE COURT: I do not care what you do. I am just suggesting the propriety of maybe being practical and realistic. MR. SHOOP: Well, Your Honor, the Government has indicated that they would not consider settling, so this— MR. SALKIN: We have no proposal, sir, from the other side, with which to consider a settlement. THE €OURT: Well, the only proposal we had [72] to start on, and that is the pro rata share, based on the number of weeks he worked during the years 1967 and 1968. There is nothing more that you have to start on. SERENA MR. SALKIN: That’s right, but that proposal has E not been made. y MR. SHOOP: Your Honor, I would submit that under © the provisions of the collective bargaining agreement, the company has no authority to do this. é THE COURT: The company has no authority? : MR. SHOOP: The provisions of the collective bar- ~ gaining agreement provide for no such payment as Your = Honor would suggest. 3 THE COURT: I know that. & MR. SHOOP: And the company would have to dis- cuss this matter under Federal law of labor relations é with the union. é THE COURT: With the stature of your law firm) ‘ if the company does not do what you suggest, they had 4 better get another law firm. You do not need to go tq | them for advice. E 7 ee . Ml. OARS 9 be IRE + EAN ELS 104 / But I see it every month in this Court. The greatest problem you have today is heads of labor unions will not be practical and realistic. aud personnel managers, and those who negotiate for the company will not be realistic. I had The, Pittsburgh Press in here yesterday [73 & 74] for five or six hours. They are the most unrealistic, impractical, arbitrary persons I have ever dealt with in my life. Corporations and heads of labor are the same way. You should hear some of the labor relations cases we get in this Court. If I were President of a corporation, my most ex- pensive man would be the Director of Labor Relations. He is the most valuable man in the corporation. There is no more valuable. If the President gets $50, si i he should get $150,000. All rigist, you are not interested in settling. Do you have any other further arguments? MR. SHOOP: No, Your Honor. THE COURT: Do you have any further arguments? MR. SALKIN: No, sir. THE COURT: How long do you want, sir, to present your brief? MR. SALKIN: I was just wondering if I iit have a transcript of the notes of testimony? THE COURT: I will direct that this record be tran- scribed at the joint expense of the parties, with a copy to be filed for the use of this Court and any Appellate Court. ; [75] You people, believe me, are going to spend two to five thousand dollars on this case each, win, lose, or draw. The record will cost you two or three hundred dollars apiece. I will follow up with a written order, Miss Reporter. : MR. SALKIN: May I have until the filing of the transcript, sir, to file my brief? THE COURT: Why do you want the transcript to file your brief? You know you are going to delay this case two to three months. How much time do you want after the transcript. _—_ a AW tec SFG EEE ACA IES DESIRE LAID 0 IIR OILS A 105 She only has about ten ahead of yours. How much time do you want after the transcript is filed? MR. SALKIN: I don’t wish to delay this Court. THE COURT: Sir, you are not delaying me. I try to get things decided as soon as I can. The best time for me to decide is to yo right in and start dictating. That is the easiest for me. I know this. All I need to do is pick up three or four books, and I will have an opinion out in an hour. But you want to file a brief, and I never deny a lawyer the right to file a brief; and I read every case the lawyer cites to me. MR. SALKIN: I would like to have thirty days from today, sir, regardless of whether the transcript— [76] THE COURT: You draw an order, Mr. .Ad- ministrative Assistant, providing in substance that coun- sel for plaintiff will file their’ brief with the Court on or before the 3rd day of July, 1972. MR. SHOOP: Your Honor, may I have ten days to file a reply brief? THE COURT: That makes the case another month old. You will have to July 17th to file a counter brief. MR. SHOOP: And I will notify the Court promptly if I don’t want to. I would just like to see Mr. Salkin’s brief. THE COURT: You have heard everything he is go- ing to say. Why are you spending thousands of dollars on a measly $390.00? You can settle this case for $150.00. It is nothing but a Squire’s case. How corporations can justify the expenditure of sub- stantial amounts of money, just to have the pride and satisfaction in their own mind of saying, “I gave them an awful fight.” Were you in Vietnam? MR. FOSTER: No, sir. THE COURT: Where were you? MR. FOSTER: The Mediterranean. THE COURT: Is there anything else? [77] MR. SALKIN: That is all. Thank you. MR. SHOOP: Thank you, Your Honor. SAE RS Tee ee eee eee eee — FONE PINS OTIS eS 106 MR. SALKIN: Thank you, sir. THE COURT: If I were you, I would go back and I would ask the President of the company to have lunch with me today. If I were you, with whoever negotiates the collective bargaining agreement; and I would say, “I think a Judge can get this settled for $150.00 for me. Let’s pay it and get rid of it.” MR. SHOOP: The Government hadn’t indicated that they— THE COURT: Will you take $150.00? MR. SALKIN: If that is what it comes to. THE COURT: Do you get picaynuish for peanuts. Forget about it. MR. SALKIN: Wait a minute. The veteran says he would accept $150.00. MR. SHOOP: Whatever the pro rata share— THE COURT: Wait a minute. Why are you walking away so indifferently? Don’t you have any executive with any authority? MR. SHOOP: No, sir, Your Honor. THE COURT: No one? MR. SHOOP: No, sir. THE COURT: You watch. You are going to [78] spend—You fellows get three, four or five hundred dollars a day; if you are not, you are underpaid. MR. SHOOP: I don’t. No, Your Honor. Q THE COURT: I know what lawyers get. How can you justify spending two or three thousand dollars, if you can settle a case for $150. 00? How in the world can you justify it? at can the Government of the United States justify it I know some of the members of Congress. I would write to them and say, “Here is a case I can settle for _ $150.00.” You are going to spend a thousand or two thousand on this case. MR. SHOOP: Well, Your Honor, I would submit that it isn’t only this case. There are many veterans within the corporation who, in the corporation’s interest, should be treated the same. 107 THE COURT: When does your collective bargain- ing agreement expire? MR. SHOOP: Two and a half years from now. THE COURT: Can’t you renegotiate it? MR. SHOOP: In the ‘hree-year period. THE COURT: I would like to be President of your corporation for a while. {79} MR. SHOOP: So would I, on occasion; Your Honor. But there is more than this case at stake. THE COURT: There is more money wasted by cor- porations and unions in little disputes that do not amount to a darn. I had a strike not too long ago because they- did not get the right toilet paper. MR. SHOOP: Your Honor, I represented the company in that case. THE COURT: It was the silliest thing I ever heard. | *~ You don’t have the proper drinking water. You don’t use the right gasoline in the trucks. They stall once in a while, and the driver has to get out. I could write a history, and everypody would start laughing. MR. SHOOP: But it is all true. THE COURT: They would say. “Do you mean to say these things happen in a Court Room?” ’ I have a case now that you cannot say an invocation and a benediction at a graduation service. © All right, that is all. | MR. SHOOP: Thank you, Your Honor, ~ THE COURT: Defendants make a gross mistake in not doing what I suggest and compromise for $150.00. It is one of the biggest mistakes I have ever had before me in my [79a] tenure as a Judge. Maybe you are not going to win this case, too. (Whereupon, the Court recessed at 11:40 A.M.) ; Mes ee. 108 REPORTER’S CERTIFICATION I hereby certify that the foregoing is a true and complete transcript of the Non-Jury Trial held in the aforementioned action on May 31, 1972, before Hon- orable Wallace S. Gourley, Senior Judge. : /s/ Marilyn Brown Marilyn Brown Court Reporter 3 a x 4 - S 7 = 2 £ % om 4 . RI EINE I CPS teh 5 ebacndicchnst Mas Where. ae anak Diced iyi iste ea OLE 0S. HCAS 0S. nen! REESE RD BATE RE PRIS IAN ETI EOE EI EE GI RRR EPS PENSE 109 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Civil Action No. 71-781 [Received Nov. 22, 1972, 10:30 AM, U.S. Attorney’s Office, Pittsburgh, Pa.] EARL R. FOSTER, PLAINTIFF Vv. DRAVO CORPORATION, DEFENDANT PROTECTIVE NOTICE OF APPEAL Notice is hereby given that Earl R. Foster, plaintiff, the above named, hereby appeals io the United States Court of Appeals for the Third Circuit from the final judgment entered in this action on the 6th day of November, 1972. Date—Nov. 21, 1972 /S/ Richard L. Thornburgh United States Attorney /S/ Blair A. Griffith Assistant US Attorney Or COUNSEL /8 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0371%3A1. Public record. Not legal advice.