Fishgold v. Sullivan Drydock Repair Corporation

• Decision Date: 27 May 1946
• Docket Number: No. 970,970
• Citation: 167 A.L.R. 110,328 U.S. 275,90 L.Ed. 1230,66 S.Ct. 1105
• Parties: FISHGOLD v. SULLIVAN DRYDOCK & REPAIR CORPORATION et al
• Court: U.S. Supreme Court

328 U.S. 275

66 S.Ct. 1105

90 L.Ed. 1230

FISHGOLD

v SULLIVAN DRYDOCK & REPAIR CORPORATION et al.

No. 970.

Argued May 6, 1946.

Decided May 27, 1946.

The provision of the Selective Service Act guaranteeing a veteran against discharge from his position without cause within one year after restoration does not grant the veteran a step-up in seniority over what he would have had if he had note ntered the service, since the seniority problem is not in terms dealt with by that provision, but by preceding provisions. Selective Training and Service Act of 1940, § 8(c), as amended, 50 U.S.C.A.Appendix, § 308(c).

The provision of the Selective Service Act guaranteeing a veteran against discharge from his position without cause within one year after restoration is broad enough to cover demotions, and if, within statutory period, veteran is demoted, he is within meaning of the act 'discharged' from such position. Selective Training and Service Act of 1940, § 8(c), as amended, 50 U.S.C.A.Appendix, § 308(c).

Welder who, after honorable discharge from army, was restored to his former position, was not entitled to recover from his employer for days when he was laid off while non-veterans with higher seniority were allowed to work, since a 'lay-off' is not a 'discharge' within meaning of provision of the Selective Service Act that a veteran shall not be discharged without cause within one year after restoration to his position. Selective Training and Service Act of 1940, § 8(b, c), as amended, 50 U.S.C.A.Appendix, § 308(b, c).

'Discharge', within meaning of provision of the Selective Service Act that a veteran shall not be discharged without cause within one year after restoration to his position, means termination of the employment relationship or loss of a position and does not refer to one who has been laid off by operation of a seniority system and put on a waiting list for reassignment. Selective Training and Service Act of 1940, § 8(c), as amended, 50 U.S.C.A.Appendix, § 308(c).

A 'furlough' and a 'leave of absence' as used in the Selective Service Act are forms of 'lay-off,' and are not cdischarges' within meaning of provision of the act that a veteran shall not be discharged without cause within one year after restoration to his position. Selective Training and Service Act of 1940, § 8(c), as amended, 50 U.S.C.A.Appendix, § 308(c).

Under the Selective Service Act, a veteran on his return is entitled to his old position or its equivalent even though at time of his application the plant is closed down, as for retooling, and no work is available, unless the employer's circumstances have so changed as to make it impossible or unreasonable to restore the veteran, and the veteran is entitled to be recalled to work in accordance with his seniority. Selective Training and Service Act of 1940, § 8(b, c), as amended, 50 U.S.C.A.Appendix, § 308(b, c).

Congress, in enacting the Selective Service Act, undertook to give the veteran protection within the framework of the seniority system plus a guarantee against demotion or termination of his employment relationship without cause for a year. Selective Training and Service Act of 1940, § 8(b, c), as amended, 50 U.S.C.A.Appendix, § 308(b, c).

The rulings of the Director of Selective Service in construing the Selective Service Act may be resorted to by the courts for guidance, but his rulings, not having been made in adversary proceedings, are not entitled to the weight which is accorded interpretations by administrative agencies entrusted with the responsibility of making inter partes decisions. Selective Training and Service Act of 1940, § 1 et seq., as amended, 50 U.S.C.A.Appendix, § 301 et seq.

Mr. John F. Sonnett, Asst. Atty. Gen., for petitioner.

Mr. J. Read Smith, of Brooklyn, N.Y., for respondent Sullivan Drydock & Repair Corporation.

Mr. M. H. Goldstein, of New York City, for respondent Roy Granata, etc.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Petitioner is an employee of the Sullivan Drydock & Repair Corporation. He entered its employ in 1942 and worked for it at a shipyard until he was inducted into the Army in 1943. He served in the Army a little over a year and was honorably discharged and received a certificate to that effect. He had worked for the corporation as a welder and after his tour of duty in the Army ended, he was still qualified to perfr m the duties of a welder. Within forty days of his discharge, he applied to the corporation, as was his right under the Selective Training and Service Act of 1940, 54 Stat. 885, 50 U.S.C.Appendix, § 301 et seq., 50 U.S.C.A.Appendix, § 301 et seq., for restoration to his former position,¹ He was reemployed as a welder on August 25, 1944.

The Corporation and Local 13 of the Industrial Union of Marine and Shipbuilding Workers of America had a collective bargaining agreement which provided:²

'Promotions and reclassifications and increases or decreases in the working force shall be based upon length of service and ability to do the job. Wherever between two or more men, ability is fairly equal, length of service shall be the controlling factor.'

As work at the shipyard decreased, men would be laid off. The men selected by the foremen, on the basis of ability and seniority, to be laid off would report to a department head for reassignment on the basis of their relative seniority when work became available. On each of nine days in the spring of 1945 petitioner was laid off although other welders, not veterans of the recent war, possessing the same or similar skill as petitioner, were given work on those days. These men were preferred because they had a higher shop seniority than petitioner. The decs ion to lay off petitioner followed a decision of an arbitrator who ruled that the seniority provisions of the collective bargaining agreement, which we have quoted, required it and that they were not inconsistent with the provisions of the Selective Training and Service Act of 1940.

Thereupon petitioner brought this suit, pursuant to § 8(e) of the Act,³ to obtain a declaratory judgment as to his rights under the Act and to obtain compensation for the days he was not allowed to work. The corporation answered, justifying its action by the provisions of the collective bargaining agreement and the decision of the arbitrator. The union was permitted to intervene.⁴ It alleged in its answer that the action of the corporation was warranted by the provisions of the collective bargaining agreement and was not in violation of the Act. The District Court refused the declaratory judgment requested but entered a money judgment for petitioner for the loss of wages during the nine days in question. 62 F.Supp. 25. It held that petitioner was laid off in violation of the Act. It was also of the view that the collective bargaining agreement was not inconsistent with the Act. Only the union appealed. The Circuit Court of Appeals reversed, one judge dissenting. 2 Cir., 154 F.2d 785. It held that the Act did not give petitioner the preference which he claimed and that the terms of the collective bargaining agreement justified the corporation's action. The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented.

I. We are met at the outset with the claim that the union had no appealable interest in the judgment entered by the District Court and accordingly that the Circuit Court of Appeals lacked jurisdiction to entertain it. It is pointed out that a money judgment was entered only against the corporation and that no relief was granted against the union. It is therefore argued that the judgment did not affect any substantive right of the union and that at most the union had merely an interest in the outcome of litigation which might establish a prc edent adverse to it. Boston Tow Boat Co. v. United States, 321 U.S. 632, 64 S.Ct. 776, 88 L.Ed. 975. It is also pointed out that the statutory guarantee against discharge without cause for one year⁵ had expired at the time of the District Court's judgment, that therefore no declaratory relief was granted, and that petitioner's rights for the future were not adjudicated. It is contended that the dispute between petitioner and the union has thus become moot.

But that argument misses the point. The answer of the corporation and the union put in issue the question whether there was a conflict between the collective bargaining agreement and the Act and if so, which one prevailed. The parties to the collective bargaining agreement—the union and the corporation—were before the court. A decision on the merits of petitioner's claim necessarily involved a reconciliation between the Act and the collective bargaining agreement or, if it appeared that they conflicted, an adjudication that one superseded the other. As we have noted, the District Court was of the view that the collective bargaining agreement was not inconsistent with the Act. But, however the result might be rationalized, a decision for or against petitioner necessarily involved a construction of the collective bargaining agreement. That issue was adjudicated, with the union as a party. Hence if the union had thereafter instituted a separate suit for an interpretation of the agreement, it would be met with the plea of res judicata. And that plea would be sustained, for the prior decision was on the precise point which the union sought to relitigate and was adverse to the union. And both parties to the agreement—the union and the corporation—were parties to the prior suit. This elementary principle has long been recognized. Black, The Law of Judgments (2d ed.) pp. 764, 821, 936. As stated in Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195, a prior judgment 'ia a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or...