After his discharge from military service in World War II, a
veteran was reemployed by his former private employer, in
accordance with § 8 of the Selective Training and Service Act of
1940. During his military service, the collective bargaining
agreement between his union and the employer had been modified so
as to give union chairmen top seniority in the event of layoffs.
Within one year after his reemployment, the veteran was laid off
temporarily, although union chairmen who had less time with the
company were retained. The employer refused to compensate the
veteran for the period of the layoff.
Held: the veteran's rights under § 8 of the Act were
not infringed. Pp.
337 U. S.
522-529.
169 F.2d 252 reversed.
Three veterans sued for compensation for the period of a layoff,
alleged to have been in violation of their rights under the
Selective Training and Service Act of 1940. The District Court gave
judgment for the veterans. A labor union, which had been allowed to
intervene to protect its labor contract, appealed to the Court of
Appeals, which affirmed the judgment. 169 F.2d 252. This Court
granted certiorari. 335 U.S. 869.
Reversed, p.
337 U. S.
529.
Page 337 U. S. 522
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
We brought this case here, 335 U.S. 869, to resolve a conflict
of views between two Courts of Appeals in their interpretation of
the rights given to veterans of World War II by § 8 of the
Selective Training and Service Act of 1940, as amended, 54 Stat.
885, 890, 58 Stat. 798, 50 U.S.C. App. § 308. Three veterans
brought this suit for compensation for the period of a layoff while
employed at Lockheed Aircraft Corporation, a respondent here. The
facts controlling the legal claims of all three may be represented
by the circumstances attending Kirk's employment and layoff.
[
Footnote 1]
The petitioner, Aeronautical Industrial District Lodge No. 727,
was the duly recognized collective bargaining agent of the
employees at Lockheed Aircraft Corporation. In September, 1941, the
union had negotiated an agreement with Lockheed covering the range
of subjects touching conditions of employment typical of such
agreements in the aircraft industry. This agreement was in effect
when Kirk was employed in August, 1942, by Vega Aircraft
Corporation, which afterwards was merged with Lockheed. He joined
the union, and has remained a member throughout this controversy.
He left Lockheed two years later to enter the Army, from which he
was honorably discharged in January, 1946, and was restored to his
job at Lockheed in accordance with § 8(a) of the Selective Service
Act. 54 Stat. 885, 890, as amended, 50 U.S.C. App. § 308(a). While
Kirk was in military service, his union made a new agreement with
Lockheed modifying
Page 337 U. S. 523
the terms of the 1941 agreement in various particulars. Crucial
to the issue here was a change in the seniority provisions of the
former agreement. The change provided that "Union Chairmen who have
acquired seniority shall be deemed to have top seniority as long as
they remain Chairmen." [
Footnote
2] In plain English, this means that, thereafter, employees who
served as
Page 337 U. S. 524
union chairmen were entitled to be retained in case of layoffs
regardless of their length of service in the plant.
In the latter part of June, 1946, and within a year after Kirk's
reemployment, it was necessary to lay off employees in Kirk's
industrial unit. These layoffs followed the conventional sequence
of seniority, time for military service being duly credited, with
the exception that union chairmen were retained in accordance with
the 1945 agreement even though they had less time with the company
than those who were laid off, veterans or not. Kirk was among those
laid off, and the retention as union chairmen of men who were
junior to him is the basis of his claim that § 8 of the Act had
been infringed. [
Footnote 3]
Kirk
Page 337 U. S. 525
was brought back to work within a month, but Lockheed refused to
pay him for the time he was laid off. For this sum, he brought this
suit. Petitioner Union was allowed to intervene in order to protect
its labor contract. Judgment went for Kirk, and the Union alone
took the case to the Court of Appeals for the Ninth Circuit. That
court affirmed the judgment, [
Footnote 4] 169 F.2d 252, holding that § 8 of the Act
forbade disregard of length of employment, so far as veterans are
affected, in enforcing provisions in a collective agreement for the
retention of union chairmen in the event of layoffs regardless of
their length of service. In so holding it ran counter to a series
of decisions in the Court of Appeals for the Third Circuit.
Gauweiler v. Elastic Stop Nut Corp., 162 F.2d 448;
Koury v. Elastic Stop Nut Corp., 162 F.2d 544;
DiMaggio v. Elastic Stop Nut Corp., 162 F.2d 546, and
Payne v. Wright Aeronautical Corp., 162 F.2d 549.
It is of the essence of collective bargaining that it is a
continuous process. Neither the conditions to which it addresses
itself nor the benefits to be secured by it remain static. They are
not frozen, even by war. Thus, under the Act, the veteran
accumulates time toward his seniority while in the service; he also
becomes the beneficiary of
Page 337 U. S. 526
those gains the achievement of which is the constant thrust of
collective bargaining. In other words, the Act gives him the status
of one who has been "on furlough or leave of absence," but
uninterruptedly a member of the working force on whose behalf
successive collective agreements are made. In this way, the Act
protects the furloughed employee from being prejudiced by any
change in the terms of a collective agreement because he is "on
furlough," but he is not to be favored as a furloughed employee as
against his fellows. This is the essence of our decision in
Fishgold v. Sullivan Drydock & Repair Corp.,
328 U. S. 275.
In providing that a veteran shall be restored to the position he
had before he entered the military service "without loss of
seniority," § 8 of the Act uses the term "seniority" without
definition. It is thus apparent that Congress was not creating a
system of seniority, but recognizing its operation as part of the
process of collective bargaining. We must therefore look to the
conventional uses of the seniority system in the process of
collective bargaining in order to determine the rights of seniority
which the Selective Service Act guaranteed the veteran.
Barring legislation not here involved, seniority rights derive
their scope and significance from union contracts, confined as they
almost exclusively are to unionized industry.
See Trailmobile
Co. v. Whirls, 331 U. S. 40,
331 U. S. 53,
note 21. There are great variations in the use of the seniority
principle through collective bargaining bearing on the time when
seniority begins, determination of the units subject to the same
seniority, and the consequences which flow from seniority. All
these variations disclose limitations upon the dogmatic use of the
principle of seniority in the interest of the ultimate aims of
collective bargaining. Thus, probationary conditions must often be
met before seniority begins to operate; sometimes it becomes
retroactive to the date of employment; in other
Page 337 U. S. 527
instances, it is effective only as from the qualifying date; in
some industries, it is determined on a company basis; in others,
the occupation or the plant is taken as the unit for seniority
determination; sometimes special provisions are made for workers in
key positions, and then again these factors are found in varying
combinations.
See Williamson & Harris, Trends in
Collective Bargaining, 100-102 (1945); Harbison, Seniority Policies
and Procedures as Developed through Collective Bargaining 1-10
(1941).
To draw from the Selective Service Act an implication that date
of employment is the inflexible basis for determining seniority
rights as reflected in layoffs is to ignore a vast body of long
established controlling practices in the process of collective
bargaining of which the seniority system to which that Act refers
is a part. One of the safeguards insisted upon by unions for the
effective functioning of collective bargaining is continuity in
office for its shop stewards or union chairmen. To that end,
provision is made, as it was made here, against laying them off
merely on the basis of temporal seniority. Because they are union
chairmen, they are not regarded as merely individual members of the
union; they are in a special position in relation to collective
bargaining for the benefit of the whole union. To retain them as
such is not an encroachment on the seniority system, but a due
regard of union interests which embrace the system of seniority
rights.
These considerations are decisive of the case. The agreements
made by the Union with Lockheed represent familiar developments in
the process of collective bargaining which the Selective Service
Act presupposes, and in the context of which it must be placed.
Kirk's rights, including seniority, before he entered the service
were derived from the agreement of 1941. So, likewise, were his
rights, including seniority, as an employee on furlough
Page 337 U. S. 528
defined by the agreement of 1945, inasmuch as that agreement in
no wise disadvantaged his position because he was in the military
service.
In the ordinary and orderly course of formulating the terms of
employment, the 1945 agreement between the union and Lockheed in
some directions modified the provisions of the 1941 agreement. A
labor agreement is a code for the government of an industrial
enterprise and, like all government, ultimately depends for its
effectiveness on the quality of enforcement of its code. Because a
labor agreement assumes the proper adjustment of grievances at
their source, the union chairmen play a very important role in the
whole process of collective bargaining. Therefore it is deemed
highly desirable that union chairmen have the authority and skill
which are derived from continuity in office. A provision for the
retention of union chairmen beyond the routine requirements of
seniority is not at all uncommon, and surely ought not to be deemed
arbitrary or discriminatory. [
Footnote 5] The fact that it may involve, as in Kirk's
case, the temporary layoff of a
Page 337 U. S. 529
veteran while a nonveteran chairman with less time at the plant
is retained is wholly unrelated to the veteran's absence in the
service. Under the 1945 agreement, chairmen were to be elected once
a year, and, unless the election occurred on the day before a
veteran returned to the plant, his chance of election would be the
same as that of persons who had been continuously at work in the
plant.
Of course, the Selective Service Act restricts a readjustment of
seniority rights during the veteran's absence to the disadvantage
of the veteran. But it would be an undue restriction of the process
of collective bargaining (without compensating gain to the veteran)
to forbid changes in collective bargaining arrangements which
secure a fixed tenure for union chairmen, whereby veterans as well
as nonveterans are benefited by promoting greater protection of
their rights and smoother operation of labor-management
relations.
All this presupposes, obviously, that an agreement containing
the 1945 provisions expresses honest desires for the protection of
the interests of all members of the union, and is not a skillful
device of hostility to veterans. There is not the remotest
suggestion that the 1945 agreement was other than what it purported
to be -- the means for securing both to veterans and to nonveterans
better working conditions through elected leaders not subject to
the contingencies of a labor turnover.
Reversed.
MR. JUSTICE DOUGLAS concurs in the result.
[
Footnote 1]
One of the three veterans, James L. Campbell, withdrew from the
Union on the first day of March, 1946, but this did not affect his
status as an employee with the company. There is no contention that
his withdrawal from the Union affects in any manner his rights
under § 8 of the Act, or that withdrawal from the Union should
cause a different result.
[
Footnote 2]
The collective bargaining agreement signed in 1941, so far as
seniority was concerned, provided:
"In case of a slack in production, layoffs are to be made
primarily on the basis of the principle of seniority. Due
consideration will be given, however, to (a) knowledge, training,
ability, skill and efficiency, and (b) deportment record and other
factors. If it becomes necessary to reduce the working force in any
plant or department, a plan of layoff procedure will be prepared by
the management and submitted to the Union for approval. If such
plan is not acceptable to the union, the Company agrees to enter
negotiations with the Union and to attempt to arrive at a mutually
agreeable plan. If, however at the end of one working week from the
date the Company submitted its original plan of layoff procedure to
the Union, no new plan has been mutually agreed to, the Company may
proceed according to its proposed plan of layoff subject to Article
II, Section 6."
1941 Agreement, Art. III, § 5.
The later agreement provided:
"(A) General Layoff Procedure. Layoffs shall be made in order of
Company-wide seniority applied by occupation where ability, skill,
and efficiency are substantially equal. However, in the case of
employees with four years' or more seniority, the Company may, in
its discretion, retain them in order of their Company-wide
seniority, regardless of occupation, where ability, skill, and
efficiency are substantially equal. Any claim of unjust
discrimination in the exercise of such discretion may be taken up
as a grievance. Employees who have not acquired seniority rights
may be laid off without regard to relative length of service."
"
* * * *"
"(D) Top Seniority for Union Chairmen for Purpose of Layoffs.
For the purpose of applying the Temporary and General Layoff
Procedures, Union Chairmen who have acquired seniority shall be
deemed to have top seniority so long as they remain Chairmen. . .
."
1945 Agreement, Art. IV, § 3(A)(D).
[
Footnote 3]
These are the relevant statutory provisions:
"(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 ninety days after he is relieved from such
training and service or from hospitalization continuing after
discharge for a period of not more than one year --"
"
* * * *"
"(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;"
"
* * * *"
"(c) 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 on furlough or leave of absence during
his period of training and service in the land or naval forces,
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 inducted into such forces, and
shall not be discharged from such position without cause within one
year after such restoration. . . ."
54 Stat. 885, 890, as amended, 50 U.S.C. App. § 308.
[
Footnote 4]
Lockheed, the respondent in the District Court, did not appeal.
But, since the judgment was not merely for money damages, but also
involved the construction of the collective agreement, the union
had the right to appeal.
Fishgold v. Sullivan Drydock &
Repair Corp., 328 U. S. 275,
328 U. S.
281-284.
[
Footnote 5]
See Greenman, Getting Along With Unions 26 (1948);
Union Agreements in the Cotton-Textile Industry, U.S. Dept. of
Labor, Bull. No. 885 28 (1946); Thomas, Automobile Unionism 56
(1941); Collective Bargaining Provisions, Seniority Provisions,
U.S. Dept. of Labor 28-29 (1948); Collective Bargaining in the
Office, American Management Assn., Research Rep. No. 12 72. The
advantage of this modification in seniority according to length of
service in the plant is "the mutual interest of union and
management in preserving the continuity of the bargaining and
grievance adjustment personnel." Seniority Provisions in Union
Agreements, U.S. Dept. of Labor, Serial No. R. 1308 7 (1941). While
there is not complete agreement on the advantage of seniority for
union chairmen, it is certainly within the area of collective
bargaining.
See Williamson and Harris, Trends in
Collective Bargaining 101-103 (1945);
see Greenman,
Getting Along With Unions 85-86 (1948). The National War Labor
Board recognized
"that the functions of shop stewards and other local union
officials were of value to a company as well as to its employees in
settling and preventing labor grievances. For this reason, it
usually directed seniority preference for union officials in
disputes over the issue."
The Termination Report of the National War Labor Board, U.S.
Dept. of Labor, Vol. I, p. 148.