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Waltermyer v. Aluminum Co.

argued: September 30, 1986.

KENNETH H. WALTERMYER, APPELLANT
v.
ALUMINUM COMPANY OF AMERICA, APPELLEE



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, D.C. Civil No. 85-1876

Author: Weis

Opinion OF THE COURT

Before: WEIS, MANSMANN and HUNTER, Circuit Judges

WEIS, Circuit Judge.

The question in this case is whether a National Guardsman is entitled to pay from his employer for a holiday that occurs during his leave of absence for the annual two-week military training period. The collective bargaining agreement limited eligibility for holiday pay to individuals who worked during that week, but exempted from that requirement persons in a number of categories who were absent for reasons beyond their control. Because of the similarity between military leave of absence and those exempted classifications, we conclude that the Vietnam Era Veterans' Readjustment Assistance Act, 38 U.S.C. §§ 2201, et seq., requires that the guardsman be treated the same as those in the exempted classifications who receive holiday pay. Accordingly, we will reverse the district court's judgment in favor of the employer.

After the district court entered summary judgment for defendant employer and denied the plaintiff's motion, plaintiff appealed. The facts are not in dispute. Plaintiff has been an employee of defendant since 1966. He is also a member of the Pennsylvania Air National Guard, and during its annual two-week training period defendant has granted leaves of absence as required by 38 U.S.C. § 2024(d)

In 1982, the two-week training period began on July 3, and included the Independence Day holiday. In 1984, the Memorial Day holiday occurred during the training period that began on May 19. Relying on his union's collective bargaining agreement, which designated the two days as paid holidays, plaintiff contended that he was entitled to two days' wages. Defendant refused on the ground that plaintiff had not met the prerequisite to holiday pay set out in the collective bargaining agreement.

ALCOA's agreement with the plaintiff's union provides that full-time employees receive pay for designated holidays if, during the payroll week (Monday through Sunday) in which the holiday occurs, the employee is:

1. At work; or

2. On a scheduled vacation; or

3. On a layoff under specified conditions; or

4. Performing jury service; or

5. A witness in a court of law; or

6. Qualified for bereavement pay; or

7. Absent because of personal illness and certain sick leave ...


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