Division of Labor Law Enforcement v. Ryan Aeronautical Co.

BURCH, J.

Defendant appeals from a judgment for $107.52, representing an employee’s vacation pay. The employment of plaintiff’s assignor by the defendant was under the provisions of a collective bargaining agreement signed by defendant, The Ryan Aeronautical Company, a corporation, and the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 506, an affiliate of the Congress of Industrial Organizations.

Article XVII of the agreement has to do with “Leaves with Pay, Vacation, Sick Leave, Etc.” It provides

“Each hourly paid employee upon the completion of a year’s service shall be granted during the following twelve month period a leave of absence with pay at straight time rate plus any applicable shift differential, of twelve (12) eight (8) hour work days (ninety-six (96) hours) which may be used by the employee as vacation, and/or sick leave. . . . Employees with more than one year’s service will be given

[835]

credit for the prorata part of the year worked past their anniversary and/or accrual date when laid off because of a reduction in the working forces.' ...”

Plaintiff’s assignor, Donald Ellis Wescoat, was employed November 8, 1948, by defendant as a shipping clerk at the rate of $1.12 an hour, and continued in this employment through October 31, 1949. Without fault on his part the employment was discontinued by the employer because of a reduction in working forces. It is stipulated that if the plaintiff’s assignor is entitled under the contract to vacation with pay, he is likewise entitled to pay in lieu thereof in the amount of the judgment, $107.52.

It is the contention of defendant that the quoted clause of the collective bargaining agreement discloses an intent by the contracting parties to make the right of the employee to vacation with pay dependent upon the completion to the letter of a full year’s service, and implies a provision that there can be no credit in favor of the plaintiff until the full year has expired.

We assume that the contract clause controls and its applicability is established. Literal performance would have been complete after five more working days. The trial court applied to this issue the doctrine of substantial performance, found that there had been substantial performance, and rendered the judgment. Our sole question is whether the trial court has reasonably and properly applied to this part of the contract the doctrine of substantial performance.