408 F2d 5 Edwards v. Clinchfield Railroad Company

408 F.2d 5

70 L.R.R.M. (BNA) 2912

R. C. EDWARDS, Jr., Plaintiff-Appellee,

No. 18518.

United States Court of Appeals Sixth Circuit.

March 12, 1969.

Ferdinand Powell, Jr., Johnson City, Tenn., for appellant; A. K. McIntyre, Erwin, Tenn., on brief.

John C. Eldridge, Atty., Dept. of Justice, Washington, D.C., for appellee; Edwin L. Weisl, Jr., Asst. Atty. Gen., Robert E. Kopp, Atty., Dept. of Justice, Washington, D.C., John H. Reddy, U.S. Atty., Knoxville, Tenn., on brief.

Before COMBS, Circuit Judge, McALLISTER, Senior Circuit Judge, and KENT, District Judge.1


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Appellee employee left his employment with appellant employer for two years to serve in the armed services. Thereafter, he brought an action against his employer in connection with the latter's determination of the length of vacations with pay by the number of years of continuous service during each year in which the employee rendered compensated services.


The District Court held that an employee who leaves his employment to serve in the armed services is entitled to be restored, after resuming employment, to a position, which, on the moving escalator of terms and conditions affecting that particular employment, would be comparable to the position which he would have held if he had remained continuously in civilian employment; and, that the employer, in determining the length of employee's paid vacation, was required to treat him as having been continuously employed on compensated service time during the entire period of his armed service. Universal Military Training and Service Act, Section 9(b)(A, B), (c), 50 U.S.C.A. App. Section 459(b)(A, B), (c).


On appeal, we are of the view that, as determined by the District Court, the case is governed by Accardi v. Pennsylvania R. Co., 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717. See also Morton v. Gulf, Mobile and Ohio Railroad Company, 405 F.2d 415 (C.A. 8) (decided January 2, 1969).


In accordance with the foregoing, the judgment of the District Court is affirmed upon the opinion of Judge Neese, 278 F.Supp. 751 (E.D. Tenn.).


Honorable W. Wallace Kent, Chief Judge, United States District Court for the Western District of Michigan, sitting by designation