Jackson v. Beech Aircraft Corp. (517 F.2d 1322, 1975)

McWILLIAMS, Circuit Judge.

This appeal concerns the reemployment rights of veterans. James E. Jackson and M. S. Tolbert, veterans, brought an action against their employer, Beech Aircraft Corporation, under the provisions' of the Military Selective Service Act. 50 U.S.C.App. § 451 et seq. They claimed that time spent in military service should be counted for purposes of computing retirement income benefits, eligibility for longevity pay, length of vacations, and the rate of accrual of sick leave credits. The case was submitted on the basis of stipulated facts, and the trial court denied relief on the ground that each of the four benefits claimed was not a “seniority right” within the meaning of 50 U.S.C.App. § 459. Jackson and Tolbert now appeal.

Jackson was hired by Beech Aircraft on December 26, 1963, and he continued in this employment until July 30, 1965, when he left Beech to enter active duty in the armed forces. Jackson was later honorably discharged on July 27, 1967, and was reemployed by Beech on August 21, 1967.

Tolbert was hired by Beech on August 13, 1963, and he continued in his employment until March 21, 1966, when he entered upon military duty. On March 22, 1968, Tolbert was honorably discharged and he was reemployed by Beech on March 24, 1968.

It is agreed that Beech reemployed both Jackson and Tolbert with at least certain rights of seniority. However, Beech did not allow time spent in the military to be used in computing retirement income benefits, longevity pay, length of vacations, and sick leave credits. The ultimate issue is whether these particular benefits are “seniority rights” under the Selective Service Act. Let us look at each of the four benefits involved in this proceeding.

Retirement income benefits are provided for in Beech’s Retirement Income Plan for Hourly Paid Employees. When this action was commenced on December 30, 1970, the Retirement Income Plan for Hourly Paid Employees, as amended October 1, 1969, was in effect. The principal concept under the 1969 Plan was “credited service.” The 1969 Plan provided that “credited service” included time spent in the military for the purpose of determining an employee’s eligibility for retirement benefits, and for the additional purpose of determining when his interest therein vested. However, the 1969 Plan specifically excluded time spent in the military in the computation of the amount of such retirement benefits. Under the 1969 Plan the amount of retirement benefits was tied to “years of service.”

The 1969 Plan was amended on July 31, 1972, during the course of the instant proceeding, and under the 1972 amendment time spent in the military was not to be counted for determining either eligibility, vesting, or the amount of retirement benefits. Under the 1972 amendments “credited service” means “active employment” and the latter term is defined as “actual work.”

Longevity pay is provided for in the collective bargaining agreement between Beech and the International Association of Machinists and Aerospace Workers. The agreement provides that upon completing five years of “work time” an employee will receive an hourly premium of 5$ per hour, and upon completion of ten years of “work time” he will receive an additional 5