Fishgold v. Sullivan Drydock & Repair Corporation
154 F.2d 785 (1946)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The Selective Training and Service Act of 1940 restores a returning veteran to their former position on the seniority ladder as if they had been on furlough, but does not grant them "super-seniority" over non-veterans with more seniority. The Act's one-year protection against "discharge without cause" does not prevent temporary layoffs based on a pre-existing, neutral seniority system.
Facts:
- On December 21, 1942, the plaintiff began working as a welder for the Sullivan Drydock and Repair Corporation.
- The plaintiff was inducted into the Army on May 22, 1943, leaving his position.
- After being honorably discharged, he returned to the company on August 21, 1944, and was reinstated to his former position as a welder.
- The company had a collective bargaining agreement with Local 13 of the Industrial Union of Marine and Shipbuilding Workers of America, which mandated that layoffs be conducted according to shop seniority.
- On three occasions in April and May 1945, the company experienced a shortage of work.
- During these periods, the plaintiff was laid off while other non-veteran welders with greater shop seniority were retained and given work.
Procedural Posture:
- The plaintiff sued his employer, the Sullivan Drydock and Repair Corporation, in the federal district court to recover lost wages.
- Local 13, the union representing the workers, intervened in the lawsuit to defend its collective bargaining agreement.
- The trial court judge ruled in favor of the plaintiff, awarding him damages for the lost wages.
- The union, Local 13, as the appellant, appealed the trial court's judgment to the U.S. Circuit Court of Appeals for the Second Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Selective Training and Service Act of 1940 prohibit an employer from laying off a reemployed veteran within one year of their return, when the layoff is based on a collective bargaining agreement that gives preference to non-veteran employees with greater seniority?
Opinions:
Majority - L. Hand, Circuit Judge
No. The Selective Training and Service Act of 1940 does not prohibit laying off a reemployed veteran according to a seniority system. The statute's language restores a veteran to a position of 'like seniority,' meaning the same seniority they would have had if they had been on furlough, not an enhanced or superior seniority. The provision stating a veteran 'shall not be discharged from such position without cause within one year' uses the term 'discharge' to mean a permanent termination of employment, not a temporary layoff due to work shortages. A layoff based on a neutral seniority system is not a 'discharge' under the Act. Therefore, the veteran is restored to the 'moving escalator' of seniority, accumulating credit for time in service, but not jumping ahead of others who have been employed longer.
Dissenting - Chase, Circuit Judge
Yes. The Act should be interpreted liberally to benefit veterans. The provision stating a veteran 'shall not be discharged from such position without cause within one year' creates an independent right to job security that overrides private contractual seniority rights. A temporary layoff is a 'discharge from such position' for the period of the layoff, and depriving the veteran of work and pay violates the statute's protective purpose. The label 'lay-off' is a futile attempt to circumvent the clear statutory command granting the veteran a year of security in their position. Furthermore, the interpretation by the Director of Selective Service, supporting the veteran's claim, should be given significant weight, especially since Congress later amended the Act without altering this language.
Analysis:
This decision significantly narrowed the scope of veterans' reemployment rights by distinguishing between a 'discharge' (a final firing) and a 'layoff' (a temporary work stoppage). It established the principle that the Act preserves, but does not enhance, a veteran's seniority status, placing them back on the 'seniority escalator' rather than at the top. This ruling prioritized the stability of existing collective bargaining agreements and seniority systems over providing veterans with absolute job protection, setting a key precedent for labor relations and the interpretation of veterans' preference statutes.
