Fishgold v. Sullivan Dry Dock & Repair Corporation

Citation62 F. Supp. 25
Decision Date30 August 1945
Docket NumberNo. C-5700.,C-5700.
PartiesFISHGOLD v. SULLIVAN DRY DOCK & REPAIR CORPORATION.
CourtU.S. District Court — Eastern District of New York

Knowlton Durham, of New York City, for plaintiff.

J. Read Smith, of Brooklyn, N. Y., for defendant.

William L. Standard, of New York City (M. H. Goldstein, of Philadelphia, Pa., and Herman Rosenfeld, of New York City, of counsel), for Local No. 13, intervenor.

Witt & Cammer, of New York City (Harold Cammer, of New York City, of counsel), for C.I.O., amicus curiae.

ABRUZZO, District Judge.

In this particular case it is not in dispute that the plaintiff has complied with all of the technical requirements of the statute. He was a welder working for the defendant. I find that his employment was permanent and steady. He left his employment for induction into the armed service of the United States, and had to leave his position for that purpose. He received a certificate in compliance with the statute, that he had been discharged honorably. It is neither in dispute that he is qualified to perform the duties of the position of welder — he was a first class welder — and it is not in dispute that he made his application for re-employment and that he actually was re-employed after making the request under the Selective Service Act.

The plaintiff claims that he is entitled to be employed under Section 8(b) (B) of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix § 308(b) (B), which reads as follows referring to the plaintiff's position:

"If such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority * * *." and I take that to mean that this plaintiff is entitled to come back to his work as a first class welder and that he is entitled to come back to work in preference to anybody else who might be working on any of the days that he applied for work, except a veteran in his own category.

The proof in this case is that there were forty-six men and five snappers working on the first day, April 9th, who were all non-veterans, and I hold that the defendant has violated the terms of the statute by not employing the plaintiff on April 9th, and that "status" and "pay," unless the employer's circumstances had been changed so as to make it impossible or unreasonable to do so, are merely descriptive words which mean that he had to be taken back as a first class welder and not as a second class welder and that his pay rate would stay the same.

I find, and I do not think there is any dispute, that the defendant's plant had not so changed that it was impossible or unreasonable to employ this plaintiff, and there is no claim to that effect whatsoever.

In reading subdivision (c), with regard to the benefits which were to be restored to him, it strengthens my belief that that is the way the veteran was entitled to employment under Section 8(b), (B), for the reason that he could not obtain any of the benefits set forth in subdivision (c) until he first got his job back, and Congress intended that he was to be entitled to his job over everybody else but a veteran in his own category. Subdivision (c) strengthens my belief that this interpretation is correct, because it adds the clause that he is to be retained in that position and not discharged for only one year after such restoration, because I am convinced that Congress had in mind that a returning veteran should have the opportunity of having one year in which to rehabilitate himself, and one year to avoid open competition with his fellow employees, due to the fact that for two, three or four years he was away.

I am not going into the equity of that situation; I am not concerned with whom he has to displace. That is the way I...

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4 cases
  • Fishgold v. Sullivan Drydock Repair Corporation
    • United States
    • United States Supreme Court
    • 27 Mayo 1946
    ...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 incon......
  • Droste v. Nash-Kelvinator Corporation, 5010.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 30 Enero 1946
    ...simultaneously herewith. See also: Olin Industries, Inc., v. Barnett, D.C.S.D. Ill., 64 F.Supp. 722; Cf: Fishgold v. Sullivan Dry Dock & Repair Corp., D.C., 62 F. Supp. 25. ...
  • Olin Industries v. Barnett, Civil Action No. 618.
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • 24 Enero 1946
    ...but one court has passed directly upon any of the questions here involved and that decision is contra. Fishgold v. Sullivan Dry Dock & Repair Corp., D.C.E.D.N.Y., 62 F.Supp. 25. In the case of Whirle v. Trailmobile Co., 64 F.Supp. 713, the District Court of the Southern District of Ohio, on......
  • Freeman v. General Motors Corporation, 540-542.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 29 Julio 1949
    ...until March 4, 1946, by the opinion of the United States District Court for the Eastern District of New York in Fishgold v. Sullivan Drydock & Repair Corp. et al., 62 F.Supp. 25. On that day the United States Circuit Court of Appeals (2) in reviewing the District Court decision, expressed a......
1 books & journal articles
  • Learning from Rambus—How to Tame Those Troublesome Trolls
    • United States
    • Sage Antitrust Bulletin No. 57-1, March 2012
    • 1 Marzo 2012
    ...on proceeding in court, rather than its own administrative process. 15 U.S.C. §§ 45(b), 53(b)(2011); see, e.g., FTC v. Mylan Labs., Inc., 62 F. Supp. 25, 36–37 (D.D.C. 154 : T H E A N T I T R U S T B U L L E T I N : Vol. 57, No. 1/Spring 2012 Although the Supreme Court has made clear that s......

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