Fishgold v. Sullivan Drydock & Repair Corp.
328 U.S. 275 (1946)

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U.S. Supreme Court

Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 (1946)

Fishgold v. Sullivan Drydock & Repair Corp.

No. 970

Argued May 6, 1946

Decided May 27, 1946

328 U.S. 275

Syllabus

After serving in the Army and receiving an honorable discharge, petitioner was reinstated in his former position pursuant to § 8(a) of the Selective Training and Service Act of 1940. Subsequently, when there was not enough work to keep all employees busy, he was laid off temporarily on nine days while nonveterans with higher shop seniorities were permitted to work, but he was given work when enough became available. He sued for a declaratory judgment as to his rights under the Act, and to obtain compensation for the days that he was laid off. The union intervened and alleged in its answer that the employer's action was in accordance with the provisions of a collective bargaining agreement,

Page 328 U. S. 276

and was not a violation of the Act. The District Court held that petitioner was laid off in violation of the Act, and gave him a money judgment for the loss of wages. Only the union appealed.

Held:

1. The Circuit Court of Appeals had jurisdiction of the appeal, since the union's answer put in issue the question whether there was a conflict between the collective bargaining agreement and the Act and, if so, which one prevailed. That issue, being adjudicated with the union and the employer as parties, would have been res judicata as to the union had it not appealed. Pp. 328 U. S. 281-284.

2. The temporary "lay-off" of petitioner while other employees with higher shop seniorities were permitted to work did not violate § 8 of the Selective Training and Service Act of 1940. Pp. 328 U. S. 284-291.

(a) Sections 8(b) and (c) do not grant a veteran an increase in seniority over what he would have had if he had never entered the armed services. P. 328 U. S. 285.

(b) An employee who has been laid off in accordance with a seniority system and put on a waiting list for reassignment has not been "discharged" within the meaning of § 8(c), which forbids the discharge of a reemployed veteran without cause within one year. Pp. 328 U. S. 286-287.

(c) Nothing in the legislative history of the Act indicates a purpose to accord a veteran the right to work when, by operation of the seniority system, there is none available for him. P. 328 U. S. 289.

(d) The fact that, when Congress amended § 8 of the Act in 1944 and extended the Act in 1945 without any change in § 8, it was apprised of an administrative interpretation by the Director of Selective Service that a veteran was entitled to his job regardless of seniority is not controlling -- especially when the National War Labor Board has given § 8(c) a different construction in handling disputes arising out of the negotiation of collective bargaining agreements. Pp. 328 U. S. 289-291.

3. Administrative interpretations of the Act by the Director of Selective Service may be resorted to for guidance, but, not being made in adversary proceedings, they are not entitled to the weight which is accorded administrative interpretations by administrative agencies entrusted with the responsibility of making inter partes decisions. P. 328 U. S. 290.

154 F.2d 785, affirmed.

Petitioner sued under 8(e) of the Selective Training and Service Act to obtain a declaratory judgment as to his

Page 328 U. S. 277

rights under the Act and compensation for the days he was laid off from work. The District Court refused the declaratory judgment, but gave petitioner a money judgment for the loss of wages. 62 F.Supp. 25. The Circuit Court of Appeals reversed. 154 F.2d 785. This Court granted certiorari. 327 U.S. 775. Affirmed, p. 328 U. S. 291.

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