(D.C. Civil Action No. 70-197). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Maris and Aldisert, Circuit Judges, and Gorbey, District Judge.
This action was initiated by Henry J. Hoffman, Jr., pursuant to the Military Selective Service Act of 1967*fn1 (the Act), to obtain unearned supplemental unemployment benefit (SUB) credit units. The appeal follows a non-jury trial at which judgment was entered in favor of the defendant, 335 F. Supp. 968.
The issue posed on this appeal is whether the appellant, a returning veteran, should be given SUB credits for the period of his military service. Appellant was initially employed by appellee on May 3, 1966, in a position which was not temporary. On July 29, 1966, the plaintiff was granted a military leave of absence, having been inducted into the armed forces effective August 4, 1966. When the plaintiff was honorably discharged on August 2, 1968, he made a timely application for re-employment. The plaintiff was reinstated to his former position on August 6, 1968. Shortly thereafter, the plaintiff was placed on lay-off status, he was recalled for a period from September 3rd through September 7th, and was once again laid off for almost all of the remainder of the year. As of September 7, 1968, the plaintiff had been credited with seven and one-half SUB credit units, which accrue under Bethlehem Steel's supplemental unemployment benefit plan (the Plan) and are used at the rate of one credit unit per week of lay-off.
The Plan, which is designed to provide weekly benefits to augment state unemployment benefits, was established by a collective bargaining agreement between the defendant and the United Steel Workers of America, dated July 1, 1962. Under this Plan, the number of weeks for which covered employee receives benefits depends on the number of SUB credit units accrued. The formula by which an employee accrues credits, as set forth in paragraph 2.0 of the Plan, permits an employee to accrue one-half credit for each week "in which he has any of the following hours . . .:
(a) hours work for the company,
(b) hours not worked for which he is paid, such as vacation hours or hours for which he received jury allowance,
(c) hours not worked and not paid for but which were lost because:
(1) he was performing his duties as a member of the grievance committee, or president, vice-president, recording secretary, financial secretary and/or treasurer of the local of the union which is his collective bargaining representative, or
(2) he was absent because of disability for which benefits are payable under Workmen's Compensation or Occupational Disease Law or the company program of insurance benefits."
On appellant's return from military service, the company determined that he was not to be given any credits for the period of time spent in the military service.*fn2 When Hoffman was laid off shortly after his return from military service, the company paid him SUB benefits based on the seven and one-half credits which he accrued between his first employment and his entry into the military service. The appellant challenges this determination, asserting that under 50 U.S.C. Appx. § 459 he must be deemed to have accrued SUB credits during his period of military service. It was stipulated that he would have accrued an additional forty-two and one-half SUB credits if he had continued to work regularly at Bethlehem instead of entering military service. After the company rejected Hoffman's contentions, he brought this action in the district court which entered judgment for the defendant.
In order to determine the appellant's rights under the Act, it is necessary to examine the interrelationship between sections 9(b) and 9(c).*fn3 The courts have consistently held that the statute treats two types of benefits: (1) "seniority, status and pay" and (2) "insurance and other benefits". Kasmeier v. Chicago Rock Island & Pacific RR Co., 437 F.2d 151 (1971); Accardi v. Pennsylvania RR Co., 383 U.S. 225, 86 S. Ct. 768, 15 L. Ed. 2d 717 (1966); Magma Copper Co., San Manuel Division v. Eagar, 380 F.2d 318 (1967), rev'd. on other grounds, 389 U.S. 323, 19 L. Ed. 2d 557, 88 S. Ct. 503 (1968). Seniority benefits are protected by § 9(b)(B)(i).*fn4 Insurance and other benefits are protected by § 9(c).*fn5 Section 9(c) was intended to add certain protections to the veteran and not to take away those which are granted him by § 9(b)(B) and other clauses of § 9(c).*fn6 Accardi, supra, ...