Di Maggio v. Elastic Stop Nut Corporation, 9271.

• Decision Date: 20 May 1947
• Docket Number: No. 9271.,9271.
• Citation: 162 F.2d 546
• Parties: DI MAGGIO v. ELASTIC STOP NUT CORPORATION OF AMERICA (INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL WORKERS OF AMERICA, C.I.O., LOCAL NO. 726, Intervener).
• Court: U.S. Court of Appeals — Third Circuit

162 F.2d 546 (1947)

DI MAGGIO v. ELASTIC STOP NUT CORPORATION OF AMERICA (INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL WORKERS OF AMERICA, C.I.O., LOCAL NO. 726, Intervener).

No. 9271.

Circuit Court of Appeals, Third Circuit.

Argued February 7, 1947.

Decided May 20, 1947.

Abraham L. Friedman, of Newark, N. J. (Rothbard, Harris & Oxfeld, Samuel L. Rothbard, and Emil Oxfeld, all of Newark, N. J., on the brief), for appellant.

Edw. V. Ryan, Asst. U. S. Atty., of Newark N. J. (Edgar H. Rossbach, U. S. Atty., of Newark, N. J., on the brief), for appellee.

Hamilton Hicks, of New York City, and Whittemore, Porter & Pollis, of Elizabeth, N. J. (Phidias L. Pollis, of Elizabeth, N. J., and Frederic P. Weller, of New York City, on the brief), for respondent.

Before BIGGS, GOODRICH, and McLAUGHLIN, Circuit Judges.

GOODRICH, Circuit Judge.

This case presents the same general question as that involved in the Gauweiler and Koury litigations, 3 Cir., 162 F.2d 448, decided this day. The facts may be briefly summarized and from this summary the relevancy of the rule announced in the two decisions just mentioned will be apparent.

Petitioner was first employed by the respondent on June 9, 1941. On April 30, 1943 he was inducted into the army. The job he left was the job of set-up man in the counter-sinking and hand tapping department. On June 19, 1944, employer and union entered into a bargaining agreement by which certain union officers had top seniority. This is the same agreement mentioned in the Gauweiler and Koury cases. Di Maggio was honorably discharged December 10, 1945, and subsequently went back into the company's employ to work in his former position. In putting Di Maggio to work as a set-up man his employer displaced an employee named Yorke who was a section steward and who, under the contract, had seniority over Di Maggio. The union brought the matter of Yorke's rights under the contract to arbitration as provided for in the labor agreement and the arbitrator's award was that York was entitled to reinstatment with back pay. The company obeyed the order of the arbitrator and found other work for Di Maggio.

Like Koury, Di Maggio joined the union following his return from service and, again like Koury, filed his petition a few days after the consummation of the 1946 contract between union and employer on June 13, 1946. It is to be noted that Di Maggio does not complain that he was either discharged or laid off. Like Koury, his claim is to be restored to his former position with payment for the difference between the pay carried by that position and that given him by the other jobs to which he has been assigned since his return. The District Court awarded him the relief prayed for.

What we have said in the Gauweiler and Koury cases disposes of the present litigation without further discussion. There is the additional fact to be noted here that it appears both in the pleading and by the testimony that there were, at the time of the litigation, other employees of the company with seniority, by actual length of service, greater than that of Di Maggio. In that event it is quite clear that Di Maggio was not entitled to displace such employees because, even at the time of this litigation, it had been made clear that the veteran does not per se become entitled to super seniority. And this situation, we think, shows again that the solution to the problem given in the Gauweiler case is the one which will bring the matter out with fairness to the veteran and avoid confusion to the employer. If the respondent must pay Di Maggio on the basis of the wages attached to his former position from the time of his return, must it not, also, under its contract, pay the same wages to the other employees who out-rank Di Maggio in seniority? It has already been compelled to do so with regard to the union section steward and we see no escape for it under the contract so far as others senior to Di Maggio are concerned. This, we think, is very hard on the employer as well as an interference with the usual process of collective bargaining and a source of confusion as to the rights of one veteran over another.

The judgment is reversed and the case is remanded to the District Court for proceedings not inconsistent with this opinion.

BIGGS, Circuit Judge (concurring).

Section 8(b) (B) of the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 308(b) (B), commands that the veteran be restored to the position which he occupied when he left civilian life "or to a position of like seniority, status and pay * * *." Examination of the statute and an estimation of the results which Congress intended to achieve make it apparent, I believe, that a...