NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 10a0691n.06 No. 09-1391 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT
P AU L WA TTER S, P laintif f–Ap pellee,
v. TILDEN MI N I N G

C OM P A N Y , L. C., etal., De fend ant s–

App e lla nt s. ) ) ) ) ) ) ) ) ) ) ON AP P EA L F RO M THE UN ITED STA TES DI STR IC T CO UR T F OR THE WEST ERN DISTRICT OF MIC HIGAN

Be for e : D AU G HTREY , C OLE, and G IBBO NS, Ci r c uit Judg e s. JULIA SMITH GIBBONS , Circuit Judge. Plaintiff–appellee Paul Watters was laid off from his position with de fenda nt–appellant Tilden Mining Company (“Tilden” ) on August 30, 1981. He subseque ntly

enlisted in the Air F orce , but despite receiving a mi litary leave of absence, T ilden terminated his e mploy

ment contra ct during his te rm of service
. Upon his return f rom the Air F orce , Watters applied for

ree mploy

m en t i n acc ordanc e with the Ve tera n Re-Employ

ment Rights Act (“V RRA”), 38 U.S.C. § 4301 et seq. , but Tilden was una ble to rehire him until J uly 26, 1988, and did so on ly a s a ne w h ir e . Watte rs br ou g ht s uit un de r t he VR RA , c la imi ng that he is ow e d s e nio ri ty and pension c redit for

the per iod betwee n his date of ter mination and his date o f rehire. Afte r a bench tr ial, the mag istrate judg e g rante d Watters’s re quest. For the re asons dis cu s s ed below, w e
vacate the judg men t o f the mag istrate judg e and r emand with instructions to enter judg ment consistent with the rea soning be low.W

atters v. Tilden Mining Co. No. 09-1391

For some rea son not imm ediately appar ent from the r ecor d, the stip u l ated f acts a nd briefs of

the 1 parties se em to miscalculate some of the r eleva nt tim e p eriods. For example, by our count of c a l e n d ar d ays , a t t h e t i m e W a t t e r s w a s g r an t e d m i l i t ar y l e a v e h e a c tu a l l y h a d 5 m o n t h s an d 2 0 d a ys rema ining on his pe nsion c ree p and 2 y ear s, 1 month, a nd 2 day s remainingon his seniority cre ep. Neve rtheless, we will use the time periods stipulated to by the par ties. 2 I. Pa ul Watte rs wa s f

ir st h ir e d b y

Ti lde n on J anu ary

16 , 1 97 8. He wo rk e d f

or Ti lde n unti l Aug ust 30, 1981, when he w as laid of f. P u rs u an t to union rules, afte r beinglaid off, Watters continued to ac crue both pe nsion a nd seniority benef

its, by a proc ess known as a

“cr eep.” Watters’s pension cre ep wa s to last for 2 y ear s and his seniority cre ep wa s to last f

o r 3 y ear s, 7 months, and 13 day s. The bene fit of the cr eeps w as that if Watters had been called ba ck to work be fore the cr eeps expired, his pension and seniority would have acc rued as though there had been no brea k in service
. On Marc h 11, 1983, while still laid off, Watters reque sted a milit ary leave of absenc e so that he could e nroll in the Air F o rc e. Tilden g rante d the re quest on Marc h 18. At the time leave was
r e qu e s t e d , W a t t e r s s t i l l h a d 5 m o n t h s r e m a i n i n g o nh i s p e n s i o nc r e e p an d 2 ye ar s an d

2 d a ys
re ma ini ngon

hi s se nio ri ty

c re e p. On

Ap ri l 13 , 1 98 5, wh ile Watte rs wa s st ill se rv ingin t he Ai r 1 F or c e an d

t h e d ay a f t e r h i s s e n i o r i t y

c r e e p e xp i r e d , T i l d e nt e r m i n a t e d W a t t e r s ’ s e mp l o y

me nt. Watters continued ser

ving in the military

and wa s h o n orably

discharg ed on Apr il 17, 1987. One
mon th l a te r, on

May 18 , 1 98 7, Watte rs a

pp lie d f or r eem ploy

me nt w ithTi lde n. Ti lde n in iti a lly denied his application, but eventually rehire d him on J uly

26, 1988. Watters has worke d for Tilden
ever since.W

atters v. Tilden Mining Co. No. 09-1391

3 I n 1990, as a r esult of a ne w ag ree ment with Watters’s union, Til d en ex t en d ed Watters’s pension cre dit ba ck to D ece mber 12, 1982. This e x tra cre dit wa s equal to the leng th o f h i s i n itial employ ment plus 2 y ear s and wa s added to the pension cre dit he had ac crue d since re joining Tilden in 1988. His seniority

cre dit date was move d back to matc h his n ew p ension date. In 1993, Watters’s pension and se niority cre dit dates wer e moved back an additional y ear to Dece mber 12, 1981, pursuant to that y ear ’s contra ct with Watters’s union. His pension and sec urity cre dit dates have r emained the same since
. Following the 1993 re calc ulation, Tilden circ ulated a survey to its employ ees inquiringabout their military

service
. Upon W atters’ s completion of t he surve y , Tilden informed him that he w as not entitled to any

additional seniority beca use it ha d alre ady restore d any seniority due duringthe
re c a lc ulatio ns . Watte rs fi le d a g ri e va nc e wi th his un ion on De c e mbe r 2, 19 93 . T he g ri e va nc e fi rs t went throug h mediation, but the settlement sug g ested by the m ediator was rejected by Tilden. The g ri e va nc e wa s th e n s ub mit te d to arb itr a tio n, bu t th e arb itr a tor fo un d tha t th e g ri e va

nc e wa s unti me ly
and dis mis se d it

on Oc tob e r 6 , 1 99 7. On Se pte mbe r 16 , 20 02 , Watte rs fi le d s uit in M ic hig an s ta te court. The court dismissed his claim on September 20, 2005, howe ver, f inding that the V RRA, 38 U.S.C. § 4323, provided exclusive jurisdiction i n the fe dera l courts for Wat t er s ’s cl aim. Watters fi le d thi s su it in the Wes te rn Di str ic t of Mic hig an on No ve mbe r 14 , 20 07
. Th e pa rt ie s c on se nte d to jurisdiction by

the mag istrate judg e on Mar ch 24, 2008. Watte rs c la imed th at Tilde n h a d v iol a te d h is r ig hts un de r t he VR RA by

te rm inatin g his
e mpl oy me nt w hil e he wa s o n milit ary le a ve . Watte rs a lle g e d tha t, b y te rm inatin g his e mpl oy

me nt, Tilden unlawfully

cause d him to have a br eak in se rvi ce , wh i ch reduc ed his bene fits, includingW

atters v. Tilden Mining Co. No. 09-1391

4 seniority , hourly

pay , scheduling , and expected r etireme nt date. Watters asse rted that his position with Tilden and cree ps should have been frozen when he was put on milit ary leave , and the c ree ps should have run ag ain only when he was discha

rg ed fr om mili tary

service . There fore , by

Watters’s calc ulation s , h is pension cre ep should have run until September 17, 1987, and his senior ity cre ep should have run until April 19, 1989. B eca use he w as re h i re d b ef

o re his seniority

cre ep expired, Watters reque sted that the cour t awar d him seniorit y credit for the time betwe en whe n he wa s terminated a

nd his rehire date, e qual to 3 y ear s, 3 months, and 9 day s. Furthe r, he r equeste d that the
c ourt awa rd him an eq ua l amou

nt o f p e ns ion

c re dit if the c ourt fo un d th a t T ild e n h a d r e c a lle d to work e mploy ees junior to him befor e he w as re hired, but, in any event, pe nsion credit equa l to 2 y ear s, 5 months, and 4 day s. He re quested this awa rd on top of any

time he had alr eady

been
c re dit e d a s a

re su lt o f t

he 19 90 and

19 93 la bo r a g re e me nts
. Af te r T ild e n mo ve d f

or su mma ry jud g me nt, the pa

rt ie s wa ive d jur

y tr ia l and a g re e d to su

bmi t the ca se on the mer its based on stipulated fac ts. The mag istrate judg e found: (1) when Watters wa s place d on milit ary leave of absence, his posit ion with Tilden was frozen a nd he should not have be en te rm inate d; ( 2) Watte rs wa s r e -h ir ed befor e his se nio ri ty c re e p e xpir e d; a

nd (3 ) Watte rs fa ile d to show that junior employ ees wer e called back to w ork while he wa s on mili tary leave . There fore , the
m a g i s t r a t e j u d g e g r an t e d

W a t t e r s ana d d i t i o n a l 3 ye ar s , 3 m o n t h s , an d 9 d ays c r e d i t t o h i s s e n i o r i t y, and 2 y ear s, 5 months, and 4 day s cre dit to his pension. Ti lde n ti me ly

a pp e a le d. On

a pp e a l, T ild e n a

rgue s th a t be c a

us e Watte rs was ter

min a te d in
acc ordanc e with the sy stem of seniority rec all rig hts a s delineate d in the labor a g ree ment, he is not entitled to protection under the VRRA.W

atters v. Tilden Mining Co. No. 09-1391

5 II. “On a ppeal f rom a judg ment enter ed following a bench tr ial, we r eview the district court’s fac tual finding s for c lear

err or and its leg al conclusions de novo.” Pressman v. F ranklin Nat’l Bank , 3 8 4 F. 3 d 1 8 2 , 1 8 5 ( 6 t h C i r. 2 0 0 4 ) ( ci t i n g Harrison v. Monume ntal Li fe Ins. Co. , 333 F.3d 717, 721–22 (6th Cir. 2003)). We ca nnot reve rse the district c ourt’s finding s o f fa ct “[ i ] f the district court’s a ccount of

the evidenc e is plausible i n light of the re cord vie wed in its entirety . . . even w hen the district court’s f

indings do not re s t o n cre dibilit y deter minations, but are base d instead on phy sical or doc umentary

evidenc e or infe renc es fr om o t h er fa ct s.” Anderson v. City of Besse mer City , 470 U.S. 564, 573–74 (1985). III
. A. Be fore being able to deter mine whether Watters is entitled to protection under the VRRA, we must deter

mine which ver sion of the VRRA to a pply . The VRRA wa s orig inally passed in 1974, as par t o f t he Vietnam Era Ve tera ns’ Readjustment Assistance Act of 1974, a nd codified at 38 U.S.C. § 2021 et seq . Pub. L
. No. 93-508, § 404(a) , 88 Stat. 1578 (1974). After pass i n g v arious minor alterations, including re numbering the VRRA to its current location at 38 U.S
. C . § 4301 et seq. , see Vete ra n s ’ Be n ef i ts Act of 1992, Pub. L . No. 102-568, § 506(a ), 106 Stat. 4320, 4340 (1992), Cong ress sig nificantly amende d the content of

the VRRA wi t h t h e Uni formed Ser vices Employ ment and Ree mploy

ment Rights Act of

1994 (“U SERR A”) , Pub. L
. No. 103-353, § 2, 108 Stat. 3 14 9 ( 19 94 ). Al tho ug h th e pa rt ie s n a me d th e VRRAin t he ir ple a din g s and

br ie fs be fo re thi sW

atters v. Tilden Mining Co. No. 09-1391

6 court a nd the district court, it was this version of the current USER RA that they actua lly cited. The mag istrate judg e also c ited the cur rent statute. USERRA does not apply

to Watters’s case , howeve r, because he re applied for his positi on befor e USERRA wa s enac ted. USERRA provide s: “ [T] he ame ndments made by this Act shall be effective w ith respec t to reemploy ments initi ated on or

afte r the fir st day

afte r the 60-da

y period beg inn in g o n th e d a te o f e n a c tm e n t o f th is A c t [O c to b e r 1 3 , 1 9 9 4 ]. ” Pu b
. L
. N o . 1 0 3 -353, § 8. F ur the r, the no te on

pr ior pr ov isi on s to 38 U. S.C. § 4 30 1 e xpla ins : Another se ction 4301 .
. . related to ree mploy ment rig hts of persons inducte d into the Armed Fo rc es of the United States a nd benef its protected pr ior to the g ener al amendment of

this chapter by

Pub. L
. 103-353. This section, as in ef fec t on the day befor e Oct. 13, 1994, continues t o apply to ree mploy ments initi ated be fore the end of the 60 da

y period be g inning Oc t. 13, 1994 . . . . 38 U.S.C. § 4301 prior provisions. W e note that USERRA does not indicate the intent to make any prior statute re troac tive, h o we v er . As a result, we must apply the ver sion of the statute in eff ect when Watters’ s ree mploy ment was initiated on Ju l y 2 6 , 1 9 8 8. Thus, the applica ble statute for de

novo revie w of the la

w in this case is the 1988 ve rs i o n o f t h e VRR A, which wa s codified at 38 U.S.C. §§ 2021–27 (1988). B. The VRRA provided that employ ees w ho leave their jobs as a result of being draf ted into the milit ary must be ree mploy ed in the same or similar position when they return: [A] ny person who is inducte d into the A rmed Servic es of the U nited States . . . for tr a ini ngand

se rv ic e and

wh o le a ve s a po sit ion
. . . in the e mpl oy of any e mpl oy e r i n order to perfor

m s u ch t raining and se rvice , and . . . (2) makes a pplication for ree mploy ment within ninety

day s afte r such pe rson is relieve d from such tra ining a nd service . . . (B ) if such posi t i o n wa s i n t h e employ of a . . . pr ivate employ er, suc hW

atters v. Tilden Mining Co. No. 09-1391

7 person sha ll—(i) if still qualified to perform the duties of such position, be restore d by such employ er . . . to such position or to a p o s i t i o n o f l i ke seniority , status, and pay . . . . 38 U.S.C. § 2021(a ) (1988). Section 2024 extended the protec tions of “this chapter ” beyond draf tees to “ [a]n y pe rs on wh o, a ft e r e nte ri ngthe emp lo y ment on the ba sis of

wh ic h s uc h p e rs on

c la ims restoration or ree mploy

ment, enlists in the Armed F orce s . . . .” 38 U.S.C. § 2024(a) (1988). The statut e lim ite d its pro te c tio n to per so ns wh os e “ tot a l of an y se rv ic e . . . pe rf or me d . . . a ft e r Aug us t 1, 1961, does not exceed f ive y ear s, and if the service in excess of four y ear s after Aug ust 1, 1961, is at the reque st and for the convenie nce of the Fe dera l Governme nt . . . .” Id. The VRRA provides further protec tions for veter ans once they re s t art their pr eviously held employ

ment, including g uara nteeingthat they

suffe r no loss of seniority
. See 38 U. S.C. § 2 02 1( b) (1 )( A) (1 98 8) . T he se protec tions will be discussed in g reater de tail below. Under the plain lang uag e of the statute, it is clear that Watters qua lifies for pr otection from the VR RA. Watters was employ ed with Tilden beg inning in 1978, enlisted in the Air Force “af ter enter in g th e e mp lo y

me n t o nth e b a s is o f

w h ic h s u c h p e r s o nc la im s r e s to r a ti o no r r e e mp lo y

me n t,” and soug ht ree mploy

ment with Tilden within 90 da y s of completing his military service . Watters’s milit ary service lasted appr ox imately four y ear s, from som e ti me i n Marc h 1983 until April 17, 1987, wh ic h f a lls wi thi n th e fi ve y e ar c a p o n s e rv ic e oc c ur

ri nga ft e r 1 96 1. Ev en th oug h th e ma g istrate judge did not make any

finding s as to the exact leng th or nature of Watters’s ser vice, ther e is nothing in the rec ord to sug g est that the appr ox imate month he may have spe nt in the milit ary bey ond four y e ars wa s not at the “ re qu e st an d for the c on ve nie nc e of the F e de ra l G ov e rnme nt, ” and thu s w e wi ll
no t de ny him pr ote c tio n on thos e g ro un ds
. F ina lly , on h is r e tur n f ro m th e mil ita

ry , Watte rs wa s st illW

atters v. Tilden Mining Co. No. 09-1391

8 q u a li f i e d t o p e r f o r m t h e d u t i e s o f h i s p r i o r p o s i t i o n , a s i s r e qu i r e d

b y § 2 0 2 1 ( a ) ( 2 ) ( B ) ( i )
. We there fore hold that Watters is entitl ed to protec tion under the VRRA. Tilden also contends that Watters should not g et protec tion f rom the VRRA bec ause the re is no evidence that his termination was motivated by his milit ary service
. Howeve r, this argument is p re mis e d o n th e c ur

re nt v e rs ion

of USE RRA , w hic h, a s d isc us se d a bo ve , d oe s n ot a

pp ly in t his
c a se . T he a

pp lic a ble 19 88 ve rs ion

of the VR RA did

no t r e qu ir e the e mpl oy e e to s ho w t hat hi s employ er ha d fired him bec ause of his mil itary

service
. Tilden next arg ues that Watters is not enti t l ed t o VR R A protection beca use, as a result of havin g be e n la id o ff

, h e wa s n ot a

bs e nt f ro m e mpl oy

me nt a s a re su lt o f h is m ili tary

se rv ic e . F ir st, althoug h it is t rue that Watters was laid off from wor k at the time he e nlisted, the labor ag ree ment be tw e e n his uni on and

Ti lde n tr e a te d la id- of

f w or ke rs a s e mpl oy e e s. Se c on d, Ti lde n’ s p os iti on is undermined by

the fa ct that, before W atters entere d into milit ary duty , he applied f or and r ece ived a mi litary leave of absence from Ti lden. This step would obviously have be en unnec essar

y if he ha d alre ady been te rminated. Finally , this a rg ument is a lso pr emised on the c urre nt version of USERRA, which entitles “any person whose absenc e from a position of employ ment is nece ssitated by

rea son of ser vice” to r eemploy

ment rig hts a

nd benef its. 38 U.S.C. § 4312(a) (2006). The 1988 VRRA, on the other ha

nd, only require d that the employ ee claiming its protection have e nlisted in the mil itary

“ aft e r e nte rin g th e e mp loy me nt on the basis of whic h s u ch p erson c laims restoration or
ree mploy ment.” 38 U. S
. C
. § 2 024(a) (1988) ( emphasis adde d). Althoug h blind adhere nce to the statutory lang uag e her e would cr eate perve rse results if the VR RA require d only that an employ eeW

atters v. Tilden Mining Co. No. 09-1391

The F irst Circuit reac hed a simil ar conclusion when inter preting § 4304(b)( 1) of the 1993 V RRA. 2 See Lapine v. Town of W

ellesley , 304 F.3d 90, 96 ( 1st Cir. 2002). I n Lapine , the plaintiff re signe d from his position as a police officer for personal reasons and joined the United States Army Reserve shortly there afte r. Id. a t 94 . T he c ourt re a d th e pla in l angua g e of su bs e c tio n ( b) (1 ), wh ic h is substantially

simil ar to subsec tion (a) e x cept that it cov er s re s er v i sts, not to require “the order or c a ll” to ser ve in the m ili tary to “ be tim e d s o a s to arr ive wh ile the c ivi lia n e mpl oy me nt i s st ill ong oing.” Id. a t 96 –9 7. Th e a mbi g uo us langua g e of the statut e wa s “ op e n to tw o in te rp re ta tio ns : that the ca ll or order t o active duty will issue during the employ ment; or, alternatively , that it may issue afte r termination of the employ ment with appropriate linkag e betwe en leaving a nd entry upon active duty .” Id. at 97. 9 enlist after

being employ ed, this is not a concer n in this case , wher e, as discussed above, Watters was still employ ed by

Tilden at the time he e ntere d the Air F orce . 2 Ti lde n’ s th ir d a

rgume nt i s th a t Wa tte rs i s no t enti tle d to re e mpl oy me nt u nd e r t he VRRA be c a us e he wa s te rm inate d in a c c or da nc e wi th the se nio ri ty sy ste m. Ac c or din g to T ild e n, be c a us e Watters’s seniority

and pension c ree ps ran out while he was serving in the m ilitary and ther e we re no job opportunities available f or someone of

his seniority

level at a ny time betwee n when he was l a i d o f f an d w h e nh e w a s r e h i r e d , i tw a s a l l o w e d t o d i s c h ar g e h i m i r

r e s p e c t i v e o f

t h e V R RA
. In
su pp or t of this c on te nti on , T ild e n c ite s Ke lly v. Ford Instrument Co. , 298 F.2d 399 ( 2d Cir. 1962), which wa s decide d under a prede cessor

statute to the VRRA, the Universa l Mili tary Trainingand Service Act of 1951, 50 U.S.C. a pp. § 459. I n Ke lly , Kelly had been l aid off at the time he ente red the ar med servic es. Ke lly , 298 F.2d at 400. During his se rvice , his e mploy er sent notice to him that it needed w orker s and that he w as entitled to reinstate ment. Id. Be cause of his c ommitm ent to the milit ary , Kelly

was una ble to return to wor

k, but upon his return and r eemploy ment he dema

nded seniority cre dit for the time he had spe nt in the mili tary
. Id. Th e Se c on d Cir c uit he ld, “ Whe n K e lly enter ed ser

vice he was e ntitled to be rehire d at the relative seniority ear ned under the contra ct if nee dW

atters v. Tilden Mining Co. No. 09-1391

10 arose for his l abor at any

time prior to the termination of the [cre ep].” Id. at 404. At the point that he wa s rec alled to work, “ he should have been tr eate d as on mi l i t ar y l ea v e of a bsence under the employ ment contra cts.” Id. There fore , he wa s entitled to the seniority he would have g ained ha d he re turned to work w hen the e mploy er r eca lled him. Id. Tilden argues that this Court should follow Ke lly and ho ld t hat Wa tte rs ha d n o r ig ht t o
ree mploy ment beca

use, unlike Ke lly ’s employ er, Tilden w as not able to, a nd did not, call Watters ba c k to wo rk

wh ile he wa s se rv ingin t he mil ita ry . T he ma g ist

rate jud ge co ns id e re d th is s a me argument and distinguished Ke lly on the g ro un d th a t K e lly

ha d never to ld his e mpl oy e r o f h is milit ary status and thus did not enter officia l milit ary leave until the company contac ted hi m to offer
ree mploy ment and lea

rned that he had en l i sted. Watters, on the other ha nd, reque sted and wa s g rante d a milit ary leave of absenc e, which, acc ording to the mag istrate judg e, fr oze his employ ment status un de r t

he VRRA
. On a

pp e a l, Ti lde n argue s that the ma g ist rate jud g e wa s wr on g to d ist inguis h Kelly onth o s e g r o u n d s b e c a u s e it s h o u ld n o t m a tt e r

w h o
— T il d e no r

a c o u rt— g r an ts th e le a v e of absenc e. We ag ree with the magi s t ra t e j u d ge that the critical fa ct is that Watters reque sted and wa s g rante d a military

leave of abse nce. T he VR R A p ro v i d es: “Any person who is re stored to or
e mpl oy e d in

a po sit ion in a c c or da

nc e wi th t he pr ov isi on s of cl a

us e . . . ( B ) o f s ub se c tio n ( a ) o f t his section shall be c onsidered a s having b ee n o n furlough or le ave of absenc e duringsuch per son’s period of tr aining and ser vice in the Ar

med For ces . . . .” 38 U.S.C. § 2021(b)( 1) (1988). Tilden’s int e rp re ta tio n is the re fo re fl awe d; i t re c og nize s that the VRRA pr ote c ts e mpl oy me nt r ig hts and

tr e a ts
an e mpl oy e e a s th ou g h h e were on a le a ve of a bs e nc e , y e t it

wo uld a llo w a ve te ra n to have hisW

atters v. Tilden Mining Co. No. 09-1391

11 c on tr a c t te rm inate d dur ing a mil ita ry le a ve of

a bs e nc e be c a

us e of op e ratio n o f t

he se nio ri ty

sy ste m. The S upreme Court considere d a similar fa ctual situation in dicta in Fishgold v. Sullivan Drydock & Repair Corp. : The “ position” to which the veter an is restore d is the “position” which h e l eft plus cumulated se niority . Certainly he would not have been dis charg ed fr om such posit ion and unable to g et it back, if at the time of his induction into t he ar med se rv ic e s h e ha d b e e n la id o ff by op e ratio n o f a

se nio ri ty sy ste m. 328 U.S. 275, 287–88 (1946). The purpose of the VRRA and its prede cessor and succ essor statutes was to protec t employ ees who choose to serve the country in the milit ary . See, e .g. , id. at 284 (“ The Act wa s desig ned to protec t the veter an in se vera l w ay s. He who was called to the colors was not to b e pe na lize d o n h is r e tur n b y re a so n of his a

bs e nc e fr om h is c ivi lia

n jo b. He wa s, mor e ov e r, to g ain by his service for his country an adva ntag e which the law withheld fr om those who stay ed behind.”) . “And no pr actice of employ ers or ag ree ments betwee n employ ers a nd unions can c ut down the service adjustment benef its whic h Congr ess has secur ed the veter an under the Act.” Id. at 285. Moreove r, the Supreme Court has repe atedly said that the VRRA a nd acts like it should be interpre ted libera lly
. See, e .g. , Coffy v. Republic Stee l Corp. , 447 U.S. 191, 196 (1980) (r efe rring to t he Vi e tna m E ra Ve te ra ns ’ R e a dju stm e nt A ssi sta nc e Ac t of

19 74 ); Fi

sh go ld , 328 U.S. at 285 (re fer ring to a pre dece ssor statute, the Selec tive Trainingand Servic e Ac t of 1940). Ti lde n a rgue s th a t a llo wi ngWatte rs ’s se nio ri ty and pe ns ion c re e ps to b e fr oze n d

ur inghis milit ary leave of abse nce w ould allow him to ex tend his rig ht to be rec alled four y ear s bey ond what
wa s all ow e d in the la

bo r ag re e me nt. Al tho ug h Tild e n is cor re c t tha t Wa tte rs re c e ive s mo re be ne fi ts by operation of the statute than he would have if he had simply rema ined a laid- off e mploy ee, thatW

atters v. Tilden Mining Co. No. 09-1391

We a dd re ss b e low

the dif fe re nt ques tion a s to wh e the r Watte rs a uto ma tic a lly

g e ts e xtra

se nio ri ty 3 cre dit for the time that he spe nt on mili tary leave
. 12 is ex actly what the statute intende d. S e e F i s hg old , 3 2 8 U. S
. at 285. Thus the re sult that W atters
re c e ive s mo re be ne fi ts f

ro m se rv ingin the mil ita

ry is not a t a ll i ne qu ita

ble
. F ur the rm or e , it

wo uld 3 be po int le ss f

or an e mpl oy e e to p ro c ur e a mil ita ry le ave of a bs e nc e if the e mpl oy e r c ou ld t e rm inate his e mpl oy

me nt co ntr a c t dur ing the le a ve . Ti lde n is also c or re c t in a sse rt ingthat th e re is n o “ sp e c if ic mention of or provision for a milit ary leave of abse nce” under the labor a g ree ment. Howeve r, that did not stop Til den fr om gr anting Watters a leave of absenc e in 1983 and, there fore , will not form the basis for our

denying Watters the protec tion of the VRRA. Watters fits under the a uspices of the 1988 VRRA, and we hold that he is entitled to it s protection. I V. Havingdecide d that Watters rec eives protection under the VRRA, we must next determine how much seniority

and pension c redit he is due a s a re sult. W atters r equeste d from the district court, a nd was g rante d, seniority cre dit e q u al t o t h e fu ll amount of time betwee n the date of termination of hi s employ ment, April 13, 1985, and the date of rehire , J uly 26, 1988, for a total of 3 y ear s, 3 months, and 13 da y s. The mag istrate judge ruled that he was entitled to the full amount beca use the re maining portion of hi s seniority cre ep, which ha d been f

rozen when he applied for a leave of abse nce, w as still running on the date of his rehire . When calculating his aw ard of pension
cre dit, because Watters was una ble to prove that any

employ ees junior to him wer e reca lled at any point between his date of layoff a nd date of rehire , and bec ause his pension cre ep ex pired be fore he
was re hired, the ma g istrate judg e aw arde d cre dit equal to only the time betwee n termi n ati on andW

atters v. Tilden Mining Co. No. 09-1391

13 rehire , as above, minus the t ime betwee n pension cre ep expiration, September 17, 1987, a nd rehire , J uly 26, 1988. This awa

rd equaled 10 months and 8 day s, for a total cre dit of 2 y ear s, 5 months, and 4 day s. Be cause this is a question of law, we it re view de novo
. See Pressman , 384 F.3d at 185. I f a pe rs on qu a lif ie s f or pr ote c tio n und e r t

he VRRA , th e statut e pr ov ide s c e rt a in b e ne fi ts: An y p er son who is restore d to or employ ed in a position in acc ordanc e with the provisions of clause . . . (B ) of su b s ection (a ) of this section shall be c onsidered a s having been on f

urloug h or leave of absenc e during such person’ s period of tr aining and ser vice in the Ar

med For ce s [ and] shall be so re stored or r eemploy ed without loss of seniority

. . . . 38 U.S.C. § 2021(b)(1) ( 1988). The statute also repor ted the cong ressional intent i n passing the statute: I t is hereby

decla red to be the sense of

the Cong ress that any

person who is re stored to or em pl oy ed in a po si ti on in accor dan ce wi th th e pro vi si on s o f cl aus e (A) o r (B) of subsec tion (a) of

this section should be so restore d or re employ ed in such manne r a s to g ive su c h p e rs on

su c h s ta tus in t

he pe rs on ’s e mpl oy

me nt as thepe rso n wo uld have enjoye d if such person had continued in such e mployme nt continuously from the t ime of such person’ s enter ing the Armed Forc es unt il the time of such pe rson’s re sto ratio n to su c h e mpl oy me nt, or re e mpl oy me nt. 38 U.S.C. § 2021(b)(2) ( 1988) (e mphasis added)
. The Supreme Court analy zed these provisions in Fi sh go ld , albeit in the context of a prede cessor

statute t o the VRRA. The Court wrote that the provisions protect a veter an fr om

“ re c e ivi ng a job inf

e ri or to that wh ic h h e ha d b e fo re e nte ri ngthe arm e d s e rv ic e s” and tha t “ [h]e sh a ll be ‘r e sto re d w ith ou t lo ss o f s e nior it y ’
. . . wi th a ll o f t he ins ur anc e and

oth e r b e ne fi ts a c c ru ingto employ ees on f

urloug h or leave of a

bsence .” F

i s h g old , 3 2 8 U.S. at 284. The Court likened the eff ect of the provisions to an esca lator: “[H]e does not step back on the seniority esca lator at the po int he ste pp e d off

. He ste ps ba c k on at the pr e c ise po int he wo uld have oc c up ie d h a d h e ke pt h isW

atters v. Tilden Mining Co. No. 09-1391

The labor ag ree ment does not contain a provision on mili tary

leave of abse nce a side from noting 4 that leave should be allowed in acc ordanc e with fede ral law. I t does, however, for example, allow for lea ves of a bsence for se rvi ce a s an ele cted of ficial. Subsection 10.11 provide s that a per son elec ted to office in gove rnment “shall be g rante d a leave of absenc e for up to f ive y ear s. During such period he shall continue to ac cumulate co n t i n uous service [i n acc ordanc e with the ca lculations provided].” 14 position continuousl y

during the war .” Id. at 284–85. I n the c ase of the welde r in Fi sh go ld , “He acquir es not only

the same se niority

he had; his ser

vice in the a

rmed ser vices is counted a s service in the plant so that he does not lose g round b y re as o n o f h i s absenc e.” Id. at 285. Howe ver, the Court limi ted the esc alator pr inciple: But we would dist ort the languag e of the se provisions if we r ead it as g ranting the veter an an inc rea se in seniority over what he would have had if he had neve r ente red the ar med servic es . We a g re e wi th t he Cir c uit

Court of Ap pe a ls that by

the se provisions Congre ss made the restoration as ne arly a complete substitut e for the orig inal job as was possible. No step- up or g ain in priority can be fairly

implied. Congr ess protected t he veteran ag ainst loss of g round or de motion on his return. T he provisions for re storation without loss of seniority to his old position or t o a position of like seniority

mean no more . Id. at 285–86. T his lim itation creates somewhat of a par adox for Watters. On the one ha nd, the Court’s int e rp re ta tio n of sub se c tio n (b) (1 ) me ans that Watte rs sh ou ld be re sto re d with ou t lo ss o f s e nio ri ty and with all bene fits acc ruing to employ ees on le ave of absenc e. Subsection (b)(2) provides that

4 Watte rs sh ou ld b e re e mpl oy e d in su c h po sit ion a s h e wo uld have e njo y e d h a d h e be e n e mpl oy e d w ith Tilden throug hout his ti me in the military . Howeve r, bec ause Wat t er s was laid off at the time he joined the military , had Watters not enlisted he w ould have been terminated i n 1985, cre ating a bre ak i ns er v i c e f

r o m t h a t p o i n tu n t i l h e c o u l d h av e b ee nre em p l o y edi n1 9 8 8
. As t h e m agi s t ra t e j u d geW

atters v. Tilden Mining Co. No. 09-1391

15 found—and the rec ord does not show his finding to be c lear ly err oneous—betwe en 1981 and 1988, Ti lde n d id n ot c a ll b a c k to wo rk any e mpl oy e e s junio r t o Watte rs , n or hir e any ne w em

plo y e e s, to fill positi ons for whic h Watters was qua lifie d
. T here fore , applying the statute as thoug h Watters
wer e not laid off w hen he e nlisted would effe ct a windf all, as W att ers would g et cr edit for continuous service for time that he would not ha ve g otten cre dit for if he ha d not enlisted. As the Court wrote in Fi

sh go ld , g iving Watters the inter pretation he wants would “distort the lang uag e of these provisions.” Id. at 285. Howe ver, tre ating Watters as thoug h he had no t en l i s t ed at a ll, as Tilden a s k s th is Co u rt to d o , w o u ld r e s u lt in h is r e c e iv in g n o b e n e f it w h a te v e r f

r o m the VRRA, which we have de termined is also contra ry to the purpose of

the VRRA. Subsection (b)(1) of the 1988 VRRA states that a veter an who is reemploy ed under § 2021 should be “re stored or r eemploy ed wi thout los s of seniority .” 38 U.S.C. § 2021(b)(1) (1988) (empha sis added). We re ad the text of the statute, there fore , to mean that, in this un u sual circ umstance, Watters should have been r estored a t ree mploy

ment to a position no wor se than what he ha d w he n h e e nli ste d. Th e re fo re , h is status a t the e nd of his te rm of mil ita ry se rv ic e in 1 98 7 is the same as w hat it

wa s in 19 83 —a la id- of f e mpl oy e e of

Ti lde n w ith5 mo nth s r e ma ini ngon his p en s i o n cr ee p and 2 y ear s and 2 day s remainingon his seniority cre ep. The four- y ear

leave of absenc e ser

ves to fre eze his employ ment s t at u s b ut does not cre ate f our additional y ear s of
c on tin uo us se rv ic e . Un de r thi s inte rp re ta tio n, Watte rs do e s not r e c e ive a wi nd fa ll, bu t th e VRRA also operates to his benefit by extending the end of his pension and seniority cre eps beyond the end of his milit ary

service
.W

atters v. Tilden Mining Co. No. 09-1391

16 We must, t here fore , next determine the proper calculation of W atters’ s seniority and pension in light of these conclusions. When Watters was discha rg ed fro m t h e Ai r Fo rce , his pension and
se nio ri ty c re e ps be g an to run again . U nd e r t he pa rt ie s’ c a lc ulatio ns his pe ns ion c re e p la ste d unti l Se pte mbe r 1 7, 19 87 , an d his se nio ri ty c re e p las te d unti l Apr il 19, 19 89 . Watte rs wa s r e hir e d July 26, 1988, within the run of his seniority cre ep but af

ter his pension cr eep e x pired. This g ives Watters
u nb r o k e n , c o n ti n u o u s s e r v ic e f o r th e p u r p o s e s o f s e n io r it y f r o m t h e d a te h e w a s o r ig in a ll y h ir ed, J anuar y 16, 1978, throug h the date of his eventua l rehire , J uly 26, 1988, or a period of 10 y ear s, 6 months, and 10 day s . Ho wever, his seniority did not escalate during the time he wa s on mili tary leave of abse nce; thus, the l ength of the le ave should be subtracte d, leavinghim with 6 y ear s, 5 months, and 4 day s seniority cre dit. However , Tilden has alr eady cre dited Watters more than that
amo u n t o f ti me . A f

te r th e 1 9 9 3 c o n tr a c t, T il d e n e xte n d e d Watt e r s ’ s s e n io r it y to D e c ember

12, 1981—y ielding a

total of 6 y ear s, 7 months, and 14 day s—which is 2 months and 10 day s l o ng er than the ter

m they wer e oblig ated to g ive. Watters’s pension c ree p ran out be fore he wa s rehire d. Be cause Tilden neve r hired a ny employ ees junior to him, Watters’s pension cr edit should include
on ly the ini tia l te rm

of e mpl oy me nt p lus 2 y e ars . Watters i s co rr ect that at the time of his rehire , Tilden had not g iven him the amount of seniority and pension c redit he w as owe d u n d er t he VRRA. Subsequently , howeve r, Tilden has made up f or its error , cre diting him with more than enoug h seniority and pension c redit. As for the fac t that Watters has re ce i v ed too m uch cr edit, it would be inconsistent with the purpose of the VRRA to have it operate to reduc e a v et er an ’s b en efits. Therefor e, we will treat the amount ofW

atters v. Tilden Mining Co. No. 09-1391

17 seniority Watters was e ntitled to as a floor; an y extra cre dit given by

the labor a g ree ments and at Tilden’s discre tion cannot now be ta ken aw ay by operation of the VRRA. V. For the rea sons disc ussed above, we vacate the judgme nt of the mag istrate judg e and r emand the ca se with instructions to enter judg ment in acc ordanc e with the discussion above
.