1. Under § 8(c) of the Selective Training & Service Act of
1940, a veteran's statutory right of seniority -- insofar as it
gives a reemployed veteran a preferred standing over nonveteran
employees having identical seniority rights -- does not extend
beyond the expiration of the first year of reemployment. Pp.
331 U. S.
51-61.
2. A question of
res judicata arising from prior
litigation in state courts and decided adversely to petitioners by
the courts below, but in respect of which no error was assigned in
the petition for certiorari, is not properly before this Court. P.
331 U. S.
48.
3. A proceeding in which a reemployed veteran sought to
establish seniority rights under § 8(c) of the Selective Training
& Service Act, and in which the decision of the court below was
in his favor,
held not moot although, because of
procedures invoked by a labor union, he has not been at work, but
has been on leave of absence with full pay. Pp.
331 U. S.
48-49.
4. The remand in this case will be so framed as to preclude
foreclosure, by possible future application of the doctrine of
res judicata, of such cause of action as the employee may
have if he has been unlawfully expelled, suspended, or otherwise
dealt with by the union for asserting his legal rights. Pp.
331 U. S. 50-51,
331 U. S.
61-62.
154 F.2d 866 reversed.
Respondent brought suit in the District Court against his
employer, asserting rights under the Selective Training &
Service Act of 1940. A labor organization was permitted to
intervene. The District Court gave judgment for respondent.
64 F. Supp.
713. The Circuit Court of Appeals affirmed. 154 F.2d 866. This
Court granted certiorari. 328 U.S. 831.
Reversed, p.
331 U. S.
61.
Page 331 U. S. 41
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
This case, like
Fishgold v. Sullivan Drydock & Repair
Corp., 328 U. S. 275,
presents a problem in the seniority standing of a reemployed
veteran. It arises under § 8 of the Selective Training and Service
Act of 1940. [
Footnote 1] The
Fishgold case held that, under the Act, a veteran is
entitled to be restored to his former position plus seniority which
would have accumulated but for his induction into the armed forces.
[
Footnote 2] Here, the question
concerns the duration of the veteran's restored statutory seniority
standing. The petitioners maintain that it ends with the first year
of his reemployment. Respondent's position is that it
Page 331 U. S. 42
lasts as long as the employment continues. [
Footnote 3] A suggestion has also been made that
occurrences taking place since the decision in the Circuit Court of
Appeals may have rendered the cause moot.
The case is an aftermath of a general controversy over seniority
rights which arose among the employees of two corporations
following their consolidation on January 1, 1944. Because of the
relation of the general controversy to this litigation, a detailed
statement of the facts becomes necessary. Prior to their
consolidation, the Highland Body Manufacturing Company had been a
wholly owned subsidiary of the petitioner, the Trailmobile Company.
The two corporations manufactured the same commodities in separate
plants in Cincinnati, Ohio. [
Footnote 4] During 1943, under the plan of consolidation,
the supplies and equipment and personnel of Highland were
transferred gradually to the plant of Trailmobile. It took over the
assets and business of Highland, and assumed all its obligations.
The employees of Highland were transferred to the payroll of
Trailmobile as of January 1, 1944, when the consolidation became
fully effective. [
Footnote
5]
Page 331 U. S. 43
The employees of both companies had been affiliated with the
American Federation of Labor. 51 N.L.R.B. 1106, 1108. At the time
of the consolidation, the Highland group, including respondent,
claimed seniority with Trailmobile as of the dates of their
employment by Highland. The former Trailmobile employees opposed
this, maintaining that the Highland personnel should be considered
as new employees of Trailmobile, with seniority dating only from
January 1, 1944. This dispute was submitted to national
representatives of the A.F. of L. They decided in favor of the
Highland group.
The former Trailmobile employees were dissatisfied with this
decision. They outnumbered the Highland claimants about ten to one.
Accordingly, reorganizing as a unit of the Congress of Industrial
Organizations, they requested recognition as the exclusive
bargaining agent of Trailmobile's employees, including the Highland
transferees. An election was held under the auspices of the
National Labor Relations Board, in which the new CIO local was
chosen as bargaining representative for a unit composed of both
groups. [
Footnote 6]
Trailmobile accordingly negotiated with the CIO, and, in July,
1944, a collective bargaining agreement was concluded, effective as
of June 21, 1944. It provided that the seniority rights of former
Highland employees should be fixed as of January 1, 1944,
regardless of the dates of their original employment by
Highland.
Respondent Whirls had been in Highland's employ from 1935 to
1942, when he entered military service. He was
Page 331 U. S. 44
honorably discharged and returned to his work with Highland in
May, 1943. [
Footnote 7] He was
thus among the employees transferred from Highland to Trailmobile
as of January 1, 1944, whose seniority was reduced so as to start
as of that date by the July, 1944, collective agreement with the
CIO
The Highland group contested the agreement's validity in the
Ohio courts in a class suit brought July 17, 1944, by Hess, one of
their number, on behalf of himself and 178 others similarly
situated. These included 104 persons actually at work, veterans and
nonveterans, among whom was Whirls, and 74 employees then in the
armed forces. The petition alleged that Trailmobile then had about
500 employees in military service, of whom apparently some 426 were
outside the Highland group.
The theory of the class suit was that, although the plaintiffs
were not then members of the CIO, the collective bargaining agent
was the representative of all employees in the unit, and hence
could not legally deprive a minority of the employees which it
represented of their accrued seniority and other rights by any
collective agreement with the company. [
Footnote 8] The petition alleged that the collective
agreement arbitrarily and unlawfully deprived the plaintiffs of
their "vested individual rights," and asked mandatory injunctive
relief restoring each to seniority status as of the date of his
employment by
Page 331 U. S. 45
Highland. The company and the collective agent stood upon the
terms of the collective agreement and the agent's authority as
certified representative to make it as justifying the action taken
under it.
The Ohio courts held against the plaintiffs in the action,
sustaining the position of the company and the union. [
Footnote 9] They held, in effect, that
the seniority rights in issue arose exclusively from contract,
making no reference whatever to § 8 of the Selective Training and
Service Act or any question relating to it; [
Footnote 10] that the company and the collective
representative were lawfully empowered to enter into the contract
fixing those rights as of January 1, 1944; that the trial court was
not authorized, in its own language, "to contract for the
plaintiff[s] or make a new contract," since that power "exists only
in the collective bargaining agent under the provisions of the
National Labor Relation's Act, so long as that agent acts within
the law." [
Footnote 11]
Accordingly, the suit was dismissed. The record here does not
disclose the date of the trial court's judgment. But its decision
was affirmed by the Ohio Court of Appeals before October 2, 1945,
when the union's answer was filed in the present cause, and the
case had been finally determined against the plaintiff's claims by
the Supreme Court of Ohio prior to October 15, 1945. [
Footnote 12]
The record is not entirely clear concerning the exact character
and sequence of events between July 15, 1944,
Page 331 U. S. 46
when Whirls and other former Highland employees were notified
that their seniority status would be changed, and September 18,
1945, when the present suit was filed in the District Court.
Apparently, after the notice was given, Selective Service officials
intervened in behalf of Whirls and other veterans, [
Footnote 13] although his allegation that
his seniority was restored as a result of that intervention was
denied both by the company and by the union. There is ambiguity
also concerning whether the closed shop provision appeared in the
1944 agreement or only in the 1945 one between the company and the
CIO. The facts of record, however, are more consistent with the
view that it was not introduced until the latter year.
At any rate, in June or July, 1945, Whirls joined the CIO union,
thus complying with the closed shop provisions of the collective
agreement. And, until about September 3 of that year, he continued
to be employed in the painting department, where he had the highest
seniority and was drawing pay of $1.05 per hour. On or about that
date, however, the company transferred him to the stock department,
threatening to reduce his pay to $0.83 per hour, and also to reduce
his seniority rating in accordance with the collective
agreement.
Whether or not the threatened reductions actually took effect is
not clear from the record, for, not long afterward, Whirls was
transferred again, to a position paying $1.18 per hour in another
department. But, before this was done, represented by the United
States
Page 331 U. S. 47
Attorney, [
Footnote 14]
he brought this suit in the District Court under the Selective
Training and Service Act. He sought to enjoin the threatened
decrease in pay and change in seniority status. He also asked for
restoration to his former position in the painting department and
to his seniority as fixed by his original employment with Highland.
The employer answered, and the local CIO union intervened in
support of the employer's position. However, since Whirls had been
transferred again before the case came on for hearing, the parties
agreed at the hearing to limit the issues to those affecting the
question of seniority. This was presented in two forms: (1) on the
merits, the facts being substantially stipulated; (2) on the
question whether the state court proceeding in the class suit had
determined the seniority rights of Whirls, making the issue now
raised
res judicata for this suit.
See Angel v.
Bullington, 330 U. S. 183.
Taking respondent's view in both respects, the District Court
rendered judgment in his favor. The Circuit Court of Appeals for
the Sixth Circuit affirmed the District Court's judgment. 154 F.2d
866. Besides holding
res judicata inapplicable, both
courts took the view, contrary to that later reached here in the
Fishgold case, that the reemployed veteran was entitled to
"superseniority" for one year following his reemployment, [
Footnote 15] and went on to hold
that his statutory preferred status with respect to seniority and
other incidents of his employment did not end with the expiration
of that year. Because of the bearing
Page 331 U. S. 48
of the
Fishgold decision upon the problem and the
importance of the question presented, we granted certiorari. 328
U.S. 831.
I
At the outset, it is important, in view of certain questions
which have been injected beyond the issues presented for decision,
to state explicitly what is not before us. In the first place, we
are not required to determine whether the class suit in the state
courts constituted an adjudication of the rights of the parties
involved in this litigation. That question was presented to the
District Court and the Circuit Court of Appeals. Both determined it
adversely to petitioners, but no error was assigned to this ruling
in the petition for certiorari. The question is therefore not
before this Court, and we express no opinion concerning it.
The view entertained in this respect by the District Court and
the Circuit Court of Appeals, however, has assumed tangential
bearing in connection with the suggestion that the cause may have
become moot. In its memorandum filed upon the application for
certiorari and in its brief, the Government calls attention to
certain events not appearing of record but taking place after the
decision of the Court of Appeals. Though suggesting the facts for
our attention, the Government maintains that they do not render the
controversy moot. This Court, of course, does not render advisory
opinions. And since the suggestion of the facts not only is
sufficient to raise the question of mootness but has injected
others not comprehended in the issues, it is necessary to dispose
of the matter before undertaking a determination of the question
otherwise properly here for decision.
It is suggested and not denied that, under date of April 10,
1946, respondent was notified by the collective agent that he had
been charged with conduct unbecoming a
Page 331 U. S. 49
member of the union, namely, in bringing this suit without
exhausting the remedies provided by its constitution and bylaws; in
thereby violating the collective agreement; in negotiating with the
employer through others than the union, and in conducting himself
in a manner harmful to its interests and those of its members.
Accordingly, on April 15, 1946, the union requested Trailmobile to
suspend Whirls from work. In consequence, the company directed him
not to report for duty. Since then, however, it has continued to
keep him on the payroll, on leave of absence with full pay.
Although the Government urges that Whirls thus continues in the
company's employ, and consequently the case is not moot, its
suggestion of the facts has overlaid the only issue brought here by
the petition for certiorari with questions of unlawful
discrimination allegedly arising out of the suggested facts, under
the decisions in
Steele v. Louisville & Nashville R.
Co., 323 U. S. 192;
Tunstall v. Brotherhood of Locomotive Firemen and
Enginemen, 323 U. S. 210, and
Wallace Corp. v. Labor Board, 323 U.
S. 248. [
Footnote
16]
The facts thus put forward have no proper bearing in this case
otherwise than to suggest the question of mootness and to require
that any decision which is made upon the merits here be made
without prejudice to the future assertion of any rights of
respondent which may have been violated by the conduct set forth.
We agree that, in the circumstances related, he remains an employee
of the company, and the cause is not moot.
Page 331 U. S. 50
We also agree that the question of unlawful discrimination is
not properly before us for decision. [
Footnote 17] That question, insofar as it arose from
events prior to this litigation, was involved in the Ohio class
suit without reference, it would seem, to § 8 or its possible
effects. And, because the petition for certiorari, as we have
noted, assigned no error to the Court of Appeals' ruling on the
issue of
res judicata arising from the outcome of the
class suit, we are not at liberty now to consider the effect of
that litigation or the issues of discrimination embraced in it.
Insofar as any question of unlawful discrimination may be thought
to arise from the facts said to have taken place after the decision
of the Circuit Court of Appeals, we are also not free at this time
to consider or determine such an issue. As the brief of the
Government in respondent's behalf pertinently states,
"These points were not raised on respondent's behalf in the
lower courts, and no evidence was introduced by any party to the
issue of unfair discrimination.
Cf. Hormel v. Helvering,
312 U. S.
552,
312 U. S. 556. In view of
that fact, and of the
Hess litigation, we believe that it
would be inappropriate at this stage to argue these issues."
Wholly aside from any question of power, this disclaimer on
behalf of the party affected is a sufficient reason to justify
refusal to inject such an issue here or to volunteer aid not
sought. We therefore are required to say no more concerning the
matter now than that, if respondent has been unlawfully expelled,
suspended, or otherwise dealt with by the union for asserting his
legal rights, the law has provided remedies for such injuries, and
they may be redressed in appropriate proceedings designed for that
purpose upon proof of the facts constituting the wrong and due
consideration of the legal issues they present. To assure this
possibility, however, the remand which becomes
Page 331 U. S. 51
necessary in this cause on the merits will be so framed as to
preclude any foreclosure of such rights by possible future
application of the doctrine of
res judicata arising from
this determination.
Since, moreover, in the view of the District Court and
apparently of the Court of Appeals, the Ohio class suit was
dispositive of issues of unlawful discrimination arising out of the
facts presented in that litigation without reference to § 8,
[
Footnote 18] it may be
added that the Ohio determination could not apply, of course, to
such discrimination taking place by virtue of later events.
We turn, therefore, to consideration of the sole question
presented on the merits -- namely, whether, under § 8, the
veteran's right to statutory seniority extends indefinitely beyond
the expiration of the first year of his reemployment, being
unaffected by that event as long as the employment itself
continues.
II
The relevant portions of §§ 8(a) and 8(b) are set out in the
margin. [
Footnote 19] But we
are concerned particularly with § 8(c), which reads:
"Any person who is restored to a position in accordance with the
provisions of paragraph (A) or (B) of subsection (b) shall be
considered as having been
Page 331 U. S. 52
on furlough or leave of absence during his period of active
military service, shall be so restored without loss of seniority,
shall be entitled to participate in insurance or other benefits
offered by the employer pursuant to established rules and practices
relating to employees on furlough or leave of absence in effect
with the employer at the time such person was ordered into such
service, and shall not be discharged from such position without
cause within one year after such restoration."
The Government argues on respondent's behalf that the correct
meaning of § 8, and particularly of subsection (c), is that, upon
reemployment, the veteran is entitled to retain indefinitely his
prewar plus service-accumulated seniority. [
Footnote 20] Under the statute, it says, this
seniority cannot
Page 331 U. S. 53
be taken away by a collective bargaining agreement or by the
employer, [
Footnote 21]
either during the year in which the statute insures the veteran
against discharge without cause or thereafter while the employment
continues. [
Footnote 22]
Support for this view is thought to be derived from the syntax of
the statutory language and from the legislative history.
It is argued that, grammatically, the "within one year"
provision applies only to the last clause of subsection (c),
relating to discharge without cause, and does not refer to the
"other rights" [
Footnote 23]
given by subsections (b) and (c), including restored statutory
seniority. Because the "within one year" provision appears most
proximately in connection with the prohibition against discharge,
the Government seeks to give that prohibition, including its
temporal term, effect as a command wholly distinct from
Page 331 U. S. 54
and unrelated to anything preceding. It treats the clause as a
grammatically independent sentence and a substantively unrelated
provision, although it is separated from the earlier ones only by a
comma followed by the conjunction "and."
On this premise of complete severability the Government builds
its entire case. The premise necessarily regards § 8(c) as making
no express provision for the duration of "other rights," but as
leaving this to be found wholly by implication. The Government then
goes on to conclude that the period to be implied is indefinite.
Although the statutory security against discharge ends with the
prescribed year, the protection given by § 8(c) to "other rights"
is said therefore not only to be effective for that year,
cf.
Fishgold v. Sullivan Drydock & Repair Corp., supra, but to
continue in full force for as long as the job may last beyond that
time. In this view, of course, the result would be to "freeze" the
incidents of the employment indefinitely, while "freezing" the
right to the job itself for only one year.
Difficulties arise in connection with this construction, both in
its premise and in its conclusions. One is that the conclusion of
indefinite duration would not follow necessarily if the premise of
complete severability were acceptable. On that basis, "indefinite
duration," as the Government conceives it, would not be the only
tenable period or even the most probably contemplated one. Several
alternatives would be presented. However, the statutory year would
not be among them, since it is implicit in the premise of
severability that the Act does not apply the concluding clause of §
8(c) to "other rights" to secure their extension either during or
after that time. On the other hand, the Government's view ignores
the usual rule of construction where time is not expressly
prescribed, but is evidently to be implied. For generally in such
cases,
Page 331 U. S. 55
duration for a reasonable period is the term accepted by the
law, rather than permanency or indefinite extension. [
Footnote 24] And this, in varying
circumstances, might be found to be longer or shorter than the
statutory year prescribed for the job itself.
The real trouble, however, is in the basic premise, both
grammatically and substantively. It assumes not only the complete
independence of the last clause of § 8 from what precedes, but also
that employment, within the meaning of the Act, is something wholly
distinct and separate from its incidents, including seniority,
rates of pay, etc. We think, however, that the idea of total
severability is altogether untenable. To accept it would do
violence both to the grammatical and to the substantive structure
of the statute.
The clause is neither an independent sentence nor a disconnected
prohibition without significant relationship to what precedes.
"From such position" has no meaning severed from the prior
language. The restoration provisions define the very character of
the place not only to which the veteran must be restored, but
equally from which he is not to be discharged. Neither
grammatically nor substantively could the discharge provision be
given effect without reference to the prior "restoration" clauses.
Fishgold v. Sullivan Drydock & Repair Corp., supra.
Indeed, such reference is explicit both in the phrase "from such
position" and in the time provision itself, namely, "within one
year after such restoration."
To tear the concluding clause from its context is therefore
impossible. It is conjunctive with all that precedes. Nor is it any
the more permissible to disconnect its constituent temporal term.
There can be no doubt whatever that Congress intended by § 8(c) to
secure the "other
Page 331 U. S. 56
rights" guaranteed by it for at least the minimum term of the
prescribed one-year period. This, indeed, was a specific ruling of
the
Fishgold case.
The employee there had not been discharged in the sense of being
thrown out of his job altogether. He simply had been deprived of
the opportunity to work by the operation of the seniority system
when there was not sufficient work for both himself and other
employees with greater seniority after he had been accorded his
full standing under the Act. That standing included not only his
seniority status as of the time he entered the armed forces, but
also all that would have accumulated had he remained at work until
the date of his reemployment without going into the service. In the
language of § 8(c), he is to be "considered as having been on
furlough or leave of absence during his period of active military
service." The Court held, indeed, that the Act did not give him
standing to outrank nonveteran employees who had more than the
amount of seniority to which he was entitled to be and had been
restored; in other words, that he was not given so-called
"superseniority." But it also squarely held that he was given
security not only against complete discharge, but also against
demotion, for the statutory year. And demotion was held to mean
impairment of "other rights," including his restored statutory
seniority for that year.
"If, within the statutory period, he is demoted, his status,
which the Act was designed to protect, has been affected, and the
old employment relationship has been changed. He would then lose
his old position and acquire an inferior one. He would, within the
meaning of § 8(c) be 'discharged from such position.'"
328 U.S. at
328 U. S.
286.
That § 8(c) applies to secure the protection of "other rights"
for at least the statutory year was therefore inherent in the
rationalization of the
Fishgold decision. To that extent,
at any rate, the concluding clause was
Page 331 U. S. 57
applicable, not severable, concerning them. This, of course,
destroys the Government's basic premise of the complete
severability of that clause and its resulting nonapplicability to
"other rights." While the reemployed veteran did not acquire
"superseniority," § 8(c) gave him the restored standing for the
minimum duration of the prescribed year.
It is therefore clear that Congress did not confer the rights
given as incidents of the restoration simply to leave the employer
free to nullify them at will, once he had made it. Equally clearly,
Congress did not create them to be operative for the vaguely
indefinite and variously applicable period of a reasonable time.
But we cannot agree that they were given to last as long as the
employment continues, unaffected by expiration of the one-year
period.
To accept this conclusion, as we have said, would mean
"freezing" the incidents of the employment indefinitely, while
"freezing" the right to employment itself for only one year. As
long as the employee might remain in his job, his pay could not be
reduced, his seniority could not be decreased, insurance and other
benefits could not be adversely affected. And this would be true
although, for valid reasons, all of those rights could be changed
to the disadvantage of nonveteran employees having equal or greater
seniority and other rights than those of the veteran with restored
statutory standing. The reemployed veteran thus not only would be
restored to his job simply, as the
Fishgold case required,
"so that he does not lose ground by reason of his absence." 328
U.S. at
328 U. S. 285.
He would gain advantages beyond the statutory year over such
nonveteran employees.
We do not think Congress had in mind such far-reaching
consequence for the nationwide system of employment, both public
and private, when making the statutory provisions for the veteran's
benefit. At the time it acted,
Page 331 U. S. 58
we had not declared war and the men who were called to service
were being inducted for a year's training, with the idea, if not
the assurance, that they would return to civilian life and
occupations at the end of that year without prejudice because of
their service. Visionary as this notion proved to be, it hardly can
be taken to support the view that Congress contemplated "freezing"
the specified incidents of restored employment indefinitely.
The
Fishgold case, it is true, concerned only events
taking place within the statutory year. As the Court of Appeals
pointed out in distinguishing this case, 154 F.2d at 871, the
issues there involved no question of the reemployed veteran's
standing after the statutory year. But, as we have said, the
decision did hold that § 8(c) applies to "other rights" for the
year. And the rationalization was wholly inconsistent with the idea
that those restored rights continued indefinitely after the year,
unaffected by its termination. The restored veteran, it was held,
could not be disadvantaged by his service to the nation. He "was
not to be penalized on his return by reason of his absence from his
civilian job." 328 U.S. at
328 U. S. 284. He was to be restored and kept, for the
year at least, in the same situation as if he had not gone to war
but had remained continuously employed or had been "on furlough or
leave of absence." It is clear, of course, that this statutory
addition to the veteran's seniority status is not automatically
deducted from it at the end of his first year of reemployment. But
the
Fishgold decision also ruled expressly that he was not
to gain advantage beyond such restoration, by virtue of the Act's
provisions, so as to acquire
"an increase in seniority over what he would have had if he had
never entered the armed services. . . . No step-up or gain in
priority can be fairly implied."
328 U.S. at
328 U. S. 285,
286.
For the statutory year, indeed, this meant that the restored
rights could not be altered adversely by the usual
Page 331 U. S. 59
processes of collective bargaining or of the employer's
administration of general business policy. [
Footnote 25] But, if this extraordinary
statutory security were to be extended beyond the statutory year,
the restored veteran would acquire not simply equality with
nonveteran employees having identical status as of the time he
returned to work. He would acquire indefinite statutory priority
over nonveteran employees, a preferred status which we think not
only inharmonious with the basic
Fishgold rationalization,
but beyond the protection contemplated by Congress.
We are unable, therefore, to accept the Government's position.
Aside from the events taking place after the Court of Appeals'
decision, which, as we have said, are not properly here for
consideration except upon the question of mootness, Whirls was
treated exactly as were other employees in his group having the
same seniority and status as he had on the date of his
reemployment. There was no discrimination against him as a veteran
or otherwise than as a member of that group. Both groups, the
former Trailmobile employees and the former Highland employees, who
composed his group contained veterans and nonveterans in large
numbers. Both contained veterans in active service and reemployed
veterans when the collective agreement was made. Whirls was treated
exactly as all other members of his group, the ex-Highland
employees, veterans and nonveterans alike. Whether or not the
collective agreement was valid, or infringed rights
Page 331 U. S. 60
of Whirls and other members of that group apart from rights
given by § 8(c), is not before us, for reasons we have stated. The
only question here, and the only one we decide, is that § 8(c),
although giving the reemployed veteran a special statutory standing
in relation to "other rights," as defined in the
Fishgold
case, during the statutory year, and creating to that extent a
preference for him over nonveterans, did not extend that preference
for a longer time.
On the facts, therefore, we are not required to determine the
further question whether the statute would give protection to a
reemployed veteran after the statutory year, if it were shown that
he then had been demoted beneath his rightful standing under the
Act as of the date of his restoration, though nonveteran employees
having the same seniority standing as of that time had not been
demoted or adversely affected. No such question is presented on the
facts of record properly before us for consideration and decision.
It will be time enough to consider such an issue whenever it may be
presented.
We find it unnecessary, therefore, to pass upon petitioners'
position in this case -- namely, that all protection afforded by
virtue of § 8(c) terminates with the ending of the specified year.
We hold only that so much of it ends then as would give the
reemployed veteran a preferred standing over employees not veterans
having identical seniority rights as of the time of his
restoration. We expressly reserve decision upon whether the
statutory security extends beyond the one-year period to secure the
reemployed veteran against impairment in any respect of equality
with such a fellow worker.
These reasons, founded in the literal construction of the
statute and the policy clearly evident on its face, are sufficient
for disposition of the case. They are not weakened by the
Government's strained and unconvincing citation of the Act's
legislative history.
Page 331 U. S. 61
That argument is grounded in conclusions drawn from changes made
without explanation in committee with respect to various provisions
finally taking form in § 8, changes affecting bills which
eventually became the Selective Training and Service Act and the
National Guard Act, 54 Stat. 858. Apart from the inconclusive
character of the history, the Government's contention assumes that
the only alternatives presented by the final form of the bill were
indefinite duration for the incidents of the employment named and
none at all. This ignores the other possibilities considered in
this opinion, including duration for a reasonable time. Moreover,
as has been noted, the most important committee changes relied upon
were made without explanation. [
Footnote 26] The interpretation of statutes cannot safely
be made to rest upon mute intermediate legislative maneuvers.
[
Footnote 27]
The argument for respondent in this case is of whole cloth in
principle with the contention for "superseniority" made and
rejected in the
Fishgold case, as indeed the District
Court and the Court of Appeals regarded it. Lacking any better
legislative footing, it equally cannot stand.
Accordingly, the judgment of the Court of Appeals is reversed.
This, however will be without prejudice from the decision here to
respondent's assertion in the future of any rights he may have
against Trailmobile or the collective
Page 331 U. S. 62
agent on account of their acts not presented on this record or
involved in the issues determined by this decision.
It is so ordered.
[
Footnote 1]
54 Stat. 885, 50 U.S.C. App. § 301
et seq. In 1944,
there was a minor modification of § 8 not here relevant. 58 Stat.
798;
Fishgold v. Sullivan Drydock & Repair Corp.,
328 U. S. 275,
328 U. S. 278,
note 1. As amended, the Selective Training and Service Act expired
in its major part March 31, 1947. Public Law 473, 79th Cong., 2d
Sess., 60 Stat. 341. But § 8 is saved indefinitely.
[
Footnote 2]
"He acquires not only the same seniority he had; his service in
the armed services is counted as service in the plant, so that he
does not lose ground by reason of his absence."
328 U. S. 328 U.S.
275,
328 U. S.
285.
[
Footnote 3]
Though the fact does not appear affirmatively in the record, the
parties agree that Whirls, upon his reemployment after his military
service, received, in addition to the seniority he had acquired at
the time of his entry into military service, also seniority accrued
during the period of his service, consistently with the standard of
the
Fishgold case. This accorded with the then effective
collective bargaining agreement, which provided:
"In case of a national crisis, such as a declared or undeclared
war, any man who relinquishes his job with the Company for services
rendered to the Government shall, on his return, retain his place
on the seniority list with accumulation."
[
Footnote 4]
See 51 N.L.R.B. 1106, 1107, for details of the
companies' operations.
[
Footnote 5]
In the last full year of independent operation, 1942, Highland
had approximately 100 employees and produced commodities worth
approximately $1,500,000, and Trailmobile had approximately 1,000
employees and produced commodities worth $12,000,000.
[
Footnote 6]
51 N.L.R.B. 1106; 53 N.L.R.B. 1248. As the National Labor
Relations Board determined that the appropriate bargaining unit was
one composed of both Highland and Trailmobile employees, 51
N.L.R.B. at 113, the ex-Highland employees, of course, lost the
election, since there were many more Trailmobile employees.
See note 5 The
bargaining unit excluded supervisory and certain miscellaneous
employees of both companies. 51 N.L.R.B. 1114, 1115.
[
Footnote 7]
See note 3
[
Footnote 8]
These are holdings that, although a collective bargaining agent
may be contract with the employer modify the seniority structure,
it must act in good faith toward all employees.
See
Seniority Rights in Labor Relations (1937) 47 Yale L.J. 73, 90;
Christenson, Seniority Rights under Labor Union Working Agreements
(1937) 11 Temp.L.Q. 355, 370, 371. The class suit was filed and
determined before the decisions were rendered here in
Steele v.
Louisville & Nashville R. Co., 323 U.
S. 192;
Tunstall v. Brotherhood of Locomotive
Firemen and Enginemen, 323 U. S. 210;
Wallace Corp. v. Labor Board, 323 U.
S. 248.
[
Footnote 9]
Hess v. Trailer Co., 31 O.O. 566, 17 O.Supp. 39,
affirmed by the Court of Appeals, Hamilton County, Ohio, motion to
certify record to the Ohio Supreme Court overruled, 31 O.Law Rep.
Oct. 15, 1945, 51; 18 Ohio Bar 314.
[
Footnote 10]
The pleadings in the class suit have been made part of the
record in this case. Neither they nor the findings and judgment of
the trial court in that cause disclose any reference to or
consideration of § 8 or its possible effect upon that
litigation.
[
Footnote 11]
See note 8
supra.
[
Footnote 12]
See note 9
supra.
[
Footnote 13]
Whirls' petition in this case alleged that, after the notice of
July 15, 1944,
"defendant herein again restored plaintiff to his date of
hiring, as regulating his seniority, to-wit: February 8, 1935,
pursuant to a directive of the Selective Service System of the
United States, and he continued to benefit by such seniority status
until on or about September 3, 1945, at which time"
the defendant transferred him, as stated below in the text, and
threatened, unless restrained, to reduce his pay and seniority
rating.
[
Footnote 14]
Section 8(e) of the Selective Training and Service Act, quoted
in
Fishgold v. Sullivan Drydock & Repair Corp., 328
U.S. at
328 U. S. 280,
note 3.
[
Footnote 15]
The Court of Appeals expressly stated its disagreement with the
views expressed by Judge Learned Hand, 154 F.2d 785, writing for
the majority of the Circuit Court of Appeals in the
Fishgold case, the decision in which was affirmed
here.
[
Footnote 16]
The Government's brief puts the suggestion and discussion it
makes as a matter of not desiring its "failure to explore the
nature and causes" of the alleged discrimination to be taken "as an
admission either that" there was not unfair discrimination under
the
Steele, Tunstall, and
Wallace cases,
supra, or that such discrimination "cannot be redressed
under § 8 . . . after the lapse of the initial year of
reemployment. . . ."
[
Footnote 17]
See note 16
[
Footnote 18]
The Court of Appeals, noting that Whirls was not named as a
party to the class suit other than as a member of the class,
pointed out that numerous members of the armed forces were involved
in both groups of employees, but that their interests as veterans
under § 8 were not common to the nonveteran employees in either
group. Hence, it concluded, the class suit was not appropriate for
rendering a judgment binding upon veteran members of the
complaining class as to the question of their seniority under § 8.
154 F.2d 866, 872.
[
Footnote 19]
"SEC. 8(a) Any person inducted into the land or naval forces
under this Act for training and service who, in the judgment of
those in authority over him, satisfactorily completes his period of
training and service under section 3(b) shall be entitled to a
certificate to that effect upon the completion of such period of
training and service, which shall include a record of any special
proficiency or merit attained. . . ."
"(b) In the case of any such person who, in order to perform
such training and service, has left or leaves a position, other
than a temporary position, in the employ of any employer and who
(1) receives such certificate, (2) is still qualified to perform
the duties of such position, and (3) makes application for
reemployment within forty days after he is relieved from such
training and service --"
"(A) if such position was in the employ of the United States
Government, its Territories or possessions, or the District of
Columbia, such person shall be restored to such position or to a
position of like seniority, status, and pay;"
"(B) 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, status, and pay unless the employer's
circumstances have so changed as to make it impossible or
unreasonable to do so. . . ."
[
Footnote 20]
The Government states that a veteran could be reduced in
seniority on account of
bona fide changed circumstances or
on account of cause or upon waiver. As to this,
see
note 25
[
Footnote 21]
Seniority arises only out of contract or statute. An employee
has "no inherent right to seniority in service. . . ."
Ryan v.
New York Central R., 267 Mich. 202, 208, 255 N.W. 365;
Casey v. Brotherhood, 197 Minn. 189, 191, 192, 266 N.W.
737. "The seniority principle is confined almost exclusively to
unionized industry." Decisions (1946) 46 Col.L.Rev. 1030, 1031, and
authorities cited. "In private employment, seniority is typically
created and delimited by a collective bargaining agreement. . . ."
Ibid.
[
Footnote 22]
See note 20
[
Footnote 23]
The Government's argument is limited to seniority. But it is
equally applicable to the other components of "position," such as
pay. Thus, if accepted, it would mean that, after the guaranteed
one year, a veteran could be discharged, but could not have his pay
reduced.
The position to which an employee must be restored is either the
position previously held or "a position of like seniority, status
and pay."
See note
18 It is thus recognized that part of the restored "position"
is the seniority accrued prior to service in the armed forces, and,
under the
Fishgold case, during service. "Seniority" is
part of "position," and therefore, when the Act states in
subsection (c) that the veteran may not be discharged "from such
position," it means both from the job itself and from the seniority
which is part of the job.
[
Footnote 24]
See, e.g., Dillon v. Gloss, 256 U.
S. 368,
256 U. S. 375;
Sunflower Oil Co. v. Wilson, 142 U.
S. 313,
142 U. S. 322;
1 Williston, Contracts (Rev.Ed.) 152.
[
Footnote 25]
Section 8(c), it will be recalled, forbids discharge "without
cause within one year." It may be that the "without cause"
qualification applies to "other rights" as well as to total
discharge, more especially in view of the position we take
concerning the severability of the concluding clause of § 8(c). But
no question is presented in this case whether the employer, for
cause, could demote a reemployed veteran within the statutory year
consistently with the requirements of § 8(c), and we express no
opinion in this respect.
[
Footnote 26]
See S.Rep. 1987, 76th Cong., 2d Sess.; H.Rep. 2847,
76th Cong., 3d Sess.; H.Rep. 2874, 76th Cong., 3d Sess.
[
Footnote 27]
The Government also relies upon certain statements taken out of
context from the debates.
"As is true with respect to all such materials, it is possible
to extract particular segments from the immediate and total context
and come out with road signs pointing in opposite directions."
Hust v. Moore-McCormack Lines, 328 U.
S. 707,
328 U. S. 733.
None of the selections is directed toward the question whether the
veteran's seniority continues after the guaranteed one-year period
so as to be not subject to modification by a collective bargaining
agreement.
MR. JUSTICE JACKSON, with whom MR. JUSTICE FRANKFURTER joins,
dissenting.
Of the millions of wage earners whom the War took from their
jobs into the armed services, some came from organized industries,
others from unorganized industries; some had priority rights
incident to their jobs, others had no such rights. For all,
Congress provided the security of being able to get back their old
jobs for at least a year after their return to civil life. But
since industrial priority rights usually prevailing in organized
industry have important bearing both on permanence of employment
and wages, Congress guaranteed the veteran not merely "against loss
of position", but also against "loss of seniority by reason of his
absence."
"He acquires not only the same seniority he had; his service in
the armed services is counted as service in the plant, so that he
does not lose ground by reason of his absence."
Fishgold v. Sullivan Drydock & Repair Corp.,
328 U. S. 275,
328 U. S. 285.
In brief, in employments that were governed by priority rights,
absence in the armed services was treated as presence in the plant.
The veteran acquired a rating which he would have had had he not
been away.
Congress thus dealt with two very different aspects of
employment. It gave all wage earners the assurance of having their
old jobs for a year. It further made imperative that wage earners
who, by virtue of employment contracts, normally union contracts,
had preferred positions should have the same preferred positions as
those enjoyed by their fellows who had their status but remained
behind. Congress limited the right to have a job to a year. But
Congress, having assured a veteran the priority
Page 331 U. S. 63
status he would have had had he remained at work, did not take
away that status at the end of twelve months. Accordingly, because
of the Congressionally assured status, whereby a veteran had a
priority right that he would have had had he never left, he has
whatever rights that status gave an employee under the general law
of contract, and, more particularly, as in this case, under the
National Labor Relations Act.
The veteran, at the end of the year, certainly is not in a worse
position than he would have been had he not been in the armed
services. If he could not be deprived of his seniority rights under
the employment contract had he remained behind, he cannot be
deprived of them because he is a veteran. Therefore, if, under the
National Labor Relations Act, those wielding the power of an
exclusive bargaining agency on behalf of the veteran could not have
discriminated against him had he not been a veteran, they cannot
discriminate against him because he is a veteran. Any other result
would fly so completely in the face of what Congress was about in
fashioning economic security for the returning veterans that it
would require language totally wanting in what Congress wrote to
find such a strange purpose on its part.
Congress did not authorize arbitrary reduction of the seniority
rights to which the veteran had been restored at the end of the
year. If his rights under the contract of employment assure that he
will not be discharged before an employee with lower seniority and
that he is entitled to a certain wage scale, he continues in
employment with this seniority status and is entitled to all its
benefits, as long as others with lower seniority remain on the
job.
In assuring not merely the retention of seniority status but its
progression during the years in the service, Congress aimed to
insure that the years which the veteran gave to his country should
not retard his economic advancement. It is not likely that, in
furthering this policy,
Page 331 U. S. 64
Congress would say that an employee, because he is a veteran,
should suffer the consequences of having been to war after a year's
return. The equality of treatment which Congress designed as
between employees who went and employees who stayed could not be
achieved by delaying for one year the disadvantages of having been
away and then letting them affect the veteran.
Whirls came back from the army to his old work, where he had
certain advantages of seniority. Now he has lost his seniority, and
because he asked the courts to say whether he lost it legally, he
was booted out of his job and, moreover, was expelled from the
union he had been compelled to join by reason of a closed shop
agreement. He may find other employment at his old craft closed to
him. This is rather shocking, and it is hard to believe that Whirls
has no protection in law.
What happened to Whirls is this: the employer to whose service
he returned was merged or consolidated with a bigger concern of the
same kind -- a corporation which had owned the company for which
Whirls worked -- and both businesses were continued under one
ownership. This united the two working forces, and the question
arose as to relative seniority rights. Both groups had belonged to
American Federation of Labor unions, so the problem was submitted
to its national authorities. They ruled that each employee should
retain seniority rights dating from the time he entered the employ
of either company.
The bigger group revolted. They demanded their own seniority,
and demanded that the smaller group coming into the consolidation
be treated as entirely new employees. They reorganized as a CIO
unit, demanded recognition as the exclusive bargaining agent of the
whole enterprise and, of course, won the election. They then
demanded and obtained a contract allowing their own seniority and
establishing a closed shop. To keep his job at all, Whirls was
obliged thereby to join the CIO union,
Page 331 U. S. 65
and, with others, suffered reduction of pay and loss of
seniority rights.
Believing that he and others had been unlawfully dealt with, and
being supported by the Government in the belief, he sought a remedy
in the courts. His claim was not frivolous, for two courts below
granted him relief. But, because he tested his rights in court, he
was expelled from the union on charges that he negotiated for
himself through others than the union and acted in a way contrary
and harmful to its interests. Since he was no longer a member of
the union, it demanded under the closed shop agreement that the
employer oust him from even the reduced job which its bargaining
had left to him. The employer was obliged by its contract to
comply, but has been paying him on a "leave of absence with pay"
basis. The short of it is that Whirls is out of seniority, out of
work, and out of the union, with all that this means in a closed
shop industry. His predicament comes about not because of any fault
of Whirls as a workman nor because of his employer's wish.
The employer urges that we relieve it from the duty imposed by
the court below of reinstating Whirls in his seniority rights
because
"the majority union members may compel the employer to discharge
such returning veteran after the expiration of said one-year
period. As in this case, the union might expel the veteran from the
union, and thereby compel this employer to discharge such veteran
under its closed shop contract with the union."
One might have thought this an exaggerated fear conjured up in
hostility to the union except that it is just what has happened,
and that, instead of repudiating it now, the union endorses the
threat. It says that the union
"must do one of two things, (a) either discriminate against the
Trailmobile veterans and allow the Highland veterans to supersede
them on the seniority list, or, (b) in fairness to the Trailmobile
veterans, negotiate for the discharge of Highland
Page 331 U. S. 66
veterans at the end of one year's guaranteed employment."
This combines a false alternative with a disingenuous threat.
Both alternatives presuppose that the employer has an absolute
right to discharge veterans after reemploying them for a year,
whether or not they work under a contract which gives them
seniority rights. But the question for decision is whether the
veteran is secured in his seniority rights by the Act. If he is, he
is, to the extent of those rights under the employment contract,
entitled to his job even after the assured year has ended.
There is neither need nor authority to discriminate against any
veteran of either plant. The fair solution would be that each
employee go on the seniority list as of the date he entered either
of the two units now consolidated. That was the solution under the
collective agreement by which Whirls worked at the time of the
consolidation. To thwart it, the whole machinery of the National
Labor Relations Board was set in motion, and apparently has been
used in disregard of Whirls' rights under the Labor Act. Before we
reach the question whether rights under the Labor Act have been
infringed, however, it should be clear that the Selective Service
Act secured Whirls' seniority rights, for it is those rights which
he asserts were taken from him.
Section 8(b)(B) refers to the job to which the veteran is
entitled to be restored --
i.e., simply the same job which
he left, or its equivalent. Section 8(c) specifies what rights he
shall have in that job. He is to have the seniority which would
have accumulated while he was in service, and he is to be assured
against discharge for one year, regardless of what his or others'
seniority rights are. Such assurance against discharge certainly
does not terminate seniority rights after one year. Section
8(b)(B), together with the provision against arbitrary discharge,
is enough to assure that the veteran will remain in the same
Page 331 U. S. 67
job for one year without diminution of its incidents.
See
Fishgold v. Sullivan Drydock & Repair Corporation,
328 U. S. 275,
328 U. S. 286,
in which this Court said,
"What it [Congress] undertook to do was to give the veteran
protection within the framework of the seniority system plus a
guarantee against demotion or termination of the employment
relationship without cause for a year."
328 U.S. at
328 U. S.
288.
That case interpreted the provisions against discharge as broad
enough to prohibit also any reduction in status, pay, or seniority
during the year. But we did not hold that seniority rights ended
with the year. Seniority rights are rights which, by their nature,
endure as long as the employment does, and become more and more
valuable in protecting that employment and enhancing its benefits.
Ordinarily, one of their most important functions is to give a
measure of security in the job. To have seniority rights for a year
may not be an impossibility, but it is almost a contradiction in
terms.
The job guaranteed against discharge for a year, then, is the
job defined in § 8(b)(B). But the right to discharge after the year
is not unconditional where the employee is the beneficiary of a
seniority plan. Of course, where employees have no seniority
rights, the guarantee of one year's employment is their only right.
But if a seniority system does exist, the Congress gave the
employee
"protection within the framework of the seniority system
plus a guarantee against demotion or termination of the
employment relationship without cause for a year."
(Emphasis added.)
Fishgold v. Sullivan Drydock & Repair
Corp., 328 U.S. at
328 U. S.
288.
It is to be noted that the seniority rights of Whirls were
bargained away from him by a union which, under the National Labor
Relations Act, was entitled to bargain as his representative. The
Act makes the majority union "the exclusive representatives of all
the employees in such unit" for bargaining. 49 Stat. 453, § 9(a),
29 U.S.C.
Page 331 U. S. 68
§ 159(a). We have held that this not only precludes the
individual from being represented by others, but also prevents him
from bargaining for himself.
J. I. Case Co. v. Labor
Board, 321 U. S. 332.
While the individual is thus placed wholly in the power of the
union, it does not follow that union powers have no limit. Courts,
from time immemorial, have held that those who undertake to act for
others are held to good faith and fair dealing, and may not favor
themselves at the cost of those they have assumed to represent. The
National Labor Relations Act, in authorizing union organizations
"for the purpose of collective bargaining or other mutual aid or
protection," 49 Stat. 452, § 7, 29 U.S.C. § 157, indicates no
purpose to excuse unions from these wholesome principles of
trusteeship.
We have held under a similar Act that the courts may intervene
to prevent a majority union from negotiating a contract in favor of
itself against a colored minority. Speaking for all but two members
of the Court, Chief Justice Stone, after recognizing that the
representatives may make "contracts which may have unfavorable
effects on some of the members of the craft represented" in such
matters as seniority, based on relevant differences of conditions,
said:
"Without attempting to mark the allowable limits of differences
in the terms of contracts based on differences of conditions to
which they apply, it is enough for present purposes to say that the
statutory power to represent a craft and to make contracts as to
wages, hours, and working conditions does not include the authority
to make among members of the craft discriminations not based on
such relevant differences."
Steele v. Louisville & Nashville Railroad Co.,
323 U. S. 192,
323 U. S. 203.
That opinion also declared that
"It is a principle of general application that the exercise of a
granted power to act in behalf of others involves the assumption
toward them of a duty to exercise the power in their interest and
behalf, and
Page 331 U. S. 69
that such a grant of power will not be deemed to dispense with
all duty toward those for whom it is exercised unless so
expressed."
323 U.S. at
323 U. S. 202.
And in
Tunstall v. Brotherhood of Locomotive Firemen,
323 U. S. 210, we
held that, where an individual is without available administrative
remedies, the courts must grant him protection.
I do not think that Whirls' seniority rights after one year are
made immutable or immune from collective bargaining. But the
statute restored these rights to him as a veteran. They stand until
they are lawfully modified. The record indicates that they have
never been terminated or modified by good faith collective
bargaining in the interests of the craft. It raises the suspicion
that they were simply misappropriated to the benefit of the
majority group which was under a duty to represent his interests,
as well as its own.
The courts cannot tolerate the expulsion of a member of a union,
depriving him of his right to earn a living merely because he
invokes the process of the courts to protect his rights -- even if
he does so mistakenly. The Labor Relations Act makes it an unfair
labor practice by an employer "To discharge or otherwise
discriminate against an employee because he has filed charges or
given testimony" in proceedings under it. 49 Stat. 453, § 8, 29
U.S.C. § 158. Neither may a union use its own power over its
members to bypass the courts.
Cf. Dorchy v. Kansas,
272 U. S. 306.
This action is equitable in character, and equity traditionally
adapts its remedies to the facts as developed by trial, rather than
to the form of pleadings. There could be no objection if the Court
would remand the case for development of a more complete record.
But I could not agree that it should be done with the suggestion
that Whirls was not treated with discrimination because all in the
Highland group were treated alike. If the Trailmobile Company had
absorbed the wholly owned Highland Company
Page 331 U. S. 70
before Whirls returned and used the consolidation as an excuse
to deny Whirls reemployment rights, this Court would hardly have
approved so transparent a scheme. The union has no more right to
rely on the consolidation to justify deprivation of seniority
rights.