Kennedy v. Weyerhaeuser Timber Co.

Hunter, J.

(dissenting) — The reasoning in the case' of Local Union 9-2521, IWA-CIO, Plywood & Veneer Workers v. Aberdeen Plywood Corp., 47 Wn. (2d) 636, 289 P. (2d) 206, is sound and is controlling in the instant case.

The majority opinion states that in order for the employee to be entitled to an additional day of paid vacation under Articlé XV (g), where a holiday falls within .a vacation period, the employee must qualify for a paid-up holiday under Article VII. I disagree. The majority fail to recognize the distinction that the holiday referred to in Article VII is a holiday that falls within a regularly scheduled work week, whereas holidays falling withiri a vacation period are treated separately in Article XV. Wé recognized this distinction in the Local Union 9-2521 case, supra, in construing an agreement similar to that of the instant case. There we said:

“Appellant’s contention is correct as to all paid holidays occurring within a regularly- scheduled work week. However, by agreement of the parties, the holiday lost its identity as such when it came within a vacation week. When the employer elects to choose a vacation week which ‘contains a holiday as defined in Article VII, the vacation week shall be extended one additional day.’ (Italics ours.) In such a case, the day is not recognized as a holiday, but as an additional vacation day. Having been designated as an additional vacation day, it-becomes subject to the conditions of the contract governing vacations. Since all eligible employees concerned in this, action were entitled -to at least one week’s vacation, and since the first week of the scheduled vacation contained the additional day, all employees would be entitled to an extra vacation day.
*770“Paragraph 5 of Article VII-A specifies that for a seven-day vacation week, the employee is entitled to forty hours of pay time, and also fixes the rate of vacation pay. The contract (Article VI) contemplates a regular work schedule of ‘five eigth-hour days commencing on Monday and ending on Friday.’ Hence, it follows that it was within the contemplation of the parties that, when the vacation week was extended one day, it then included an additional eight-hour day at the hourly rate of pay applicable to ■the eligible employee.”

The majority opinion, however, states that the Local Union 9-2521 case, supra, was an appeal from a summary judgment, and the record contained no evidence of the facts prevailing when the agreement was made or the interpretation given it by the parties; whereas, in the instant case, there is a history of the agreement and the construction given it by the parties. The majority opinion then proceeds to give the agreement a practical construction. This is not a case for the application of the doctrine of practical construction. In Bellingham Securities Syndicate v. Bellingham Coal Mines, 13 Wn. (2d) 370, 125 P. (2d) 668 (1942), we stated:

“It is only in those cases where the writing fails to provide the answer to a question of meaning that the courts may look elsewhere for aid in construction. Where the terms are plain and unambiguous, the meaning of the contract is to be deduced from its language. 17 C.J.S. 695. That the position of appellant is correct and it is unnecessary to resort to aids to construction, is clear from an examination of the whole contract, which must be construed as a whole, and the intention of the parties gathered from the entire instrument. There is no room for the application of the rule of practical construction. The agreement is not ambiguous. ...” (Italics mine.)

By reading Article XV in its entirety, it appears clear that holidays occurring in a vacation period are in a different category from those occurring in other periods. Article XV expressly contemplates paid vacations, in the first paragraph, as follows:

“Each employee shall receive a vacation with pay subject to the following conditions: ...” (Italics mine.)

*771The following subsections (g), (h), and (j) provide:

“(g) If a holiday occurs during the calendar week in which the vacations are taken by any of the employees, one additional day’s vacation shall be taken because of such holiday by all individuals who are entitled to a complete vacation based on 1400 hours worked, but no additional day of vacation shall be granted to those who are taking vacations based on less than 1400 hours worked.
“(h) The rate of vacation pay shall be the employee’s straight time hourly rate in effect on the payday immediately preceding his vacation. For piece workers, the vacation pay shall be arrived at by averaging the weekly earnings of the individual for each forty-hour week worked during the ninety-day period next preceding the date when vacations are announced. . . .
“(j) Vacation payment shall be made prior to the beginning of the vacation period in each case.”

There is no room for question as to whether the additional day of vacation referred to in subsection (g) is paid vacation when read with the controlling first paragraph of Article XV, supra.

To give a construction to the collective bargaining agreement, as given by the majority, would make subsection (j) of Article XV meaningless and unworkable — “Vacation payment shall be made prior to the beginning of the vacation period in each case.” How can the employer make payment in advance if it is subject to the contingency of the employee working on the first scheduled workday following the vacation?

The trial court was correct in entering judgment allowing the employees in question a paid vacation day for the holiday occurring within the vacation period. The judgment should be affirmed.

Rosellini, J., concurs with Hunter, J.