Fishgold v. Sullivan Drydock & Repair Corporation

• Decision Date: 01 April 1946
• Docket Number: No. 196.,196.
• Citation: 154 F.2d 785
• Parties: FISHGOLD v. SULLIVAN DRYDOCK & REPAIR CORPORATION (GRANATA, Intervener).
• Court: U.S. Court of Appeals — Second Circuit

154 F.2d 785 (1946)

FISHGOLD v. SULLIVAN DRYDOCK & REPAIR CORPORATION (GRANATA, Intervener).

No. 196.

Circuit Court of Appeals, Second Circuit.

March 4, 1946.

Writ of Certiorari Granted April 1, 1946.

M. H. Goldstein and William L. Standard, both of New York City (Herman Rosenfeld, of New York City, of counsel), for appellant Roy Granata.

Knowlton Durham, of New York City, for respondent.

T. Vincent Quinn, U. S. Atty., of Brooklyn, N. Y. (John F. Sonnett, Asst. Atty. Gen., Robert L. Werner and Searcy L. Johnson, Sp. Assts. to Atty. Gen., and Cecelia Goetz, of Washington, D. C., of counsel), for the United States, movant.

Lee Pressman, of Washington, D. C., and Witt & Cammer, of New York City (Eugene Cotton and Frank Donner, both of Washington, D. C., of counsel), for Congress of Industrial Organizations, amicus curiae.

Samuel J. Cohen, of New York City, and Frank L. Mulholland, Clarence M. Mulholland, and Willard H. McEwen, all of Toledo, Ohio (Mulholland, Robie & McEwen, of Toledo, Ohio, of counsel), for Railway Labor Executives' Ass'n, amicus curiae.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

Writ of Certiorari Granted April 1, 1946. See 66 S.Ct. 904.

L. HAND, Circuit Judge.

Local 13 of the Industrial Union of Marine and Shipbuilding Workers of America appeals from a judgment awarding damages to the plaintiff for his loss of wages because of two lay-offs by his employer, the Sullivan Drydock and Repair Corporation, against which alone the action was brought. The union intervened, and charged itself with the defence; the United States, the Railway Labor Executives Association and the Congress of Industrial Organizations have filed briefs, as amici. The appeal raises only the proper interpretation of subdivision (b) and (c) of § 8 of the Selective Training and Service Act of 1940, as amended in 1944 (§ 308(b) and § 308(c), 50 U.S.C.A. Appendix, which we quote in the margin).¹ The facts as found by the judge were as follows.

The plaintiff entered the employ of the Sullivan Drydock and Repair Corporation as a welder, on December 21, 1942, and was steadily employed as such until May 22, 1943, when he was inducted into the Army. He served until July 12, 1944, and was then honorably discharged, and received a certificate of the kind described in § 8(a), 50 U.S.C.A. Appendix § 308(a). At that time he concededly was, and he has since been, qualified as a first-class welder; and the company restored him to this former position on August 21, 1944, and has never dismissed him. The controversy here at bar arises because on three occasions: Viz., on April 9, April 11, and from May 17 to May 24, inclusive, it refused to give him any work, because there was not enough on those days to occupy all hands. In so refusing it preferred other welders, not veterans, who had a higher shop seniority than the plaintiff: this in accordance with the agreement between the company and the union. The plaintiff's position is that, as a veteran, § 8(b) and (c) gave him priority over all his fellows except other veterans; the union's position is that those sections merely restored him to the same place in the shop hierarchy which he would have had, if he had been on leave of absence during the period of his service. The judge held with the plaintiff and the union appealed.

Subsection B of § 8(b) is the operative source of the privilege on which the plaintiff relies; it reads as follows: "Such employer shall restore such person to such position or to a position of like seniority, status and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so." "Such position" is nowhere defined except as "a position other than a temporary position, in the employ of any employer." Taking this clause by itself, it seems to us beyond debate that it was not intended that the veteran should gain in seniority. It will be observed that the grant is in the alternative: he is to be "restored" to his original position, or to one of "like seniority, status and pay," whenever possible. The phrase, "like seniority" means the "same seniority" as before; and it necessarily precludes any gain in seniority. It follows that, if the original position is no longer open, the substitute shall be a position of no greater, though no less, seniority than the lost position. But if that be true, there can be no implication that, if the original position be not lost, but be still available, the veteran shall be restored to it with a gain in priority; for that would pre-suppose that Congress did not intend the substitute to be as nearly a complete substitute for the lost original as it was possible to make it, a hypothesis absurd on its face. Hence we must start with the proposition that subsection B of § 8(b) not only did not grant any step up in seniority, but positively denied any.

Subdivision (c) confirms the intention so disclosed. As subsection B reads, it would probably be understood to restore the veteran only to that same position which he held when he was inducted. That was, however, thought to be unfair; for while he was in the service, there were likely to be such changes in the personnel that when he came back, he might find himself junior to those over whom he had had priority when he left. To remedy this, by an amendment made while the bill was in Congress, he was given the same status that he would have had, if he had been "on furlough or leave of absence" while he was in the service. How far that differed from his position, had he remained actively at work, does not appear; but clearly the amendment presupposed that a difference there might be. Having in this way declared how the veteran's interim position "shall be considered," Congress added that he should be "restored without loss of seniority." Had the purpose been, not only to insure the veteran that he should not lose any more steps upon the ladder than if he had been on leave, but also that he should go to the top, we cannot conceive that Congress would have expressed itself in the words, "without loss of seniority." They have no such express meaning, and their implications are directly the opposite; for they disclose a concern against his possible demotion inconsistent with any implied belief in his promotion. For these reasons we are satisfied that, except for the concluding phrase of subdivision (c) there can be no doubt that textually the union's construction is the right one. It remains to consider that phrase which, as we understand it, is the chief reliance of those who take the opposite view.

It declares that the veteran "shall not be discharged from such position within one year after such restoration"; and we should, so far as possible, interpret it so as not to conflict with the rest of the section; in particular, so as to leave untouched the privilege of seniority, as it is earlier defined. There is no difficulty in doing so, if "discharge" means a permanent end to the relation of employment, a separation, a dismissal; and that is indeed its ordinary meaning. For example, the Oxford Dictionary (Vol. II, p. 412, subtitle "Discharge" I, 3), reads: "To relieve of a charge or office; (more usually) to dismiss from office, service or employment; to cashier": this in distinction with "Layoff," (Supplement, p. 8): "A period during which a workman is temporarily dismissed or allowed to leave his work; that part or season of the year during which activity in a particular business or game is partly or completely suspended; an off-season." It seems to us that Congress used "discharge" in this sense: i.e., that the veteran was to be assured of his job for the same period — a year — for which he was to be drafted; but that the job to which he was "restored" — as that very word implies — was to be subject to the same conditions to which the old job had been subject, with only the exception that it should be better in so far as a leave of absence for the year might improve it. The value of that assurance would indeed vary. In a closed shop it would presumably add little, for the union would not allow a member to be discharged without cause anyway. In an open shop the same would be true, if it were partly unionized, and the veteran were in the union; but, whenever for any reason he had not that protection it prevented his being turned out, so long as he behaved himself, and that was an advantage of no mean importance. We do not know what proportion of those in industry are not in unions; but their number is certainly very large, and, even though the clause was of value only to them, they are numerous enough to give it a purpose; to say nothing of the possibility that statutory protection may be an important supplement to union protection.

When we consider the situation at the time that the Act was passed — September, 1940 — it is extremely improbable that Congress should have meant to grant any broader privilege than as we are measuring it. It is true that the nation had become deeply disturbed at its defenseless position, and had begun to make ready; but it was not at war, and the issue still hung in the balance whether it ever would be at war. If we carry ourselves back to that summer and autumn, we shall recall that the presidential campaigns of both parties avoided commitment upon that question, and that each candidate particularly insisted that no troops should be sent overseas. The original act limited service to one year, and it was most improbable that within that time we should be called upon to fight upon our own soil; as indeed the event proved, for we were still at peace in September, 1941. Congress was calling young men to the colors to give them an adequate preparation for our defence, but with no forecast of the appalling experiences which they were later to undergo. Against that background it is not likely that a proposal would then have been accepted which gave industrial priority, regardless of their length of...