Fishgold v. Sullivan Drydock & Repair Corporation

by William O. Douglas

United States Supreme Court

328 U.S. 275

Fishgold  v.  Sullivan Drydock & Repair Corporation

 Argued: May 6, 1946. --- Decided: May 27, 1946

The provision of the Selective Service Act guaranteeing a veteran against discharge from his position without cause within one year after restoration does not grant the veteran a step-up in seniority over what he would have had if he had note ntered the service, since the seniority problem is not in terms dealt with by that provision, but by preceding provisions. Selective Training and Service Act of 1940, § 8(c), as amended, 50 U.S.C.A.Appendix, § 308(c).

The provision of the Selective Service Act guaranteeing a veteran against discharge from his position without cause within one year after restoration is broad enough to cover demotions, and if, within statutory period, veteran is demoted, he is within meaning of the act 'discharged' from such position. Selective Training and Service Act of 1940, § 8(c), as amended, 50 U.S.C.A.Appendix, § 308(c).

Welder who, after honorable discharge from army, was restored to his former position, was not entitled to recover from his employer for days when he was laid off while non-veterans with higher seniority were allowed to work, since a 'lay-off' is not a 'discharge' within meaning of provision of the Selective Service Act that a veteran shall not be discharged without cause within one year after restoration to his position. Selective Training and Service Act of 1940, § 8(b, c), as amended, 50 U.S.C.A.Appendix, § 308(b, c).

'Discharge', within meaning of provision of the Selective Service Act that a veteran shall not be discharged without cause within one year after restoration to his position, means termination of the employment relationship or loss of a position and does not refer to one who has been laid off by operation of a seniority system and put on a waiting list for reassignment. Selective Training and Service Act of 1940, § 8(c), as amended, 50 U.S.C.A.Appendix, § 308(c).

A 'furlough' and a 'leave of absence' as used in the Selective Service Act are forms of 'lay-off,' and are not cdischarges' within meaning of provision of the act that a veteran shall not be discharged without cause within one year after restoration to his position. Selective Training and Service Act of 1940, § 8(c), as amended, 50 U.S.C.A.Appendix, § 308(c).

Under the Selective Service Act, a veteran on his return is entitled to his old position or its equivalent even though at time of his application the plant is closed down, as for retooling, and no work is available, unless the employer's circumstances have so changed as to make it impossible or unreasonable to restore the veteran, and the veteran is entitled to be recalled to work in accordance with his seniority. Selective Training and Service Act of 1940, § 8(b, c), as amended, 50 U.S.C.A.Appendix, § 308(b, c).

Congress, in enacting the Selective Service Act, undertook to give the veteran protection within the framework of the seniority system plus a guarantee against demotion or termination of his employment relationship without cause for a year. Selective Training and Service Act of 1940, § 8(b, c), as amended, 50 U.S.C.A.Appendix, § 308(b, c).

The rulings of the Director of Selective Service in construing the Selective Service Act may be resorted to by the courts for guidance, but his rulings, not having been made in adversary proceedings, are not entitled to the weight which is accorded interpretations by administrative agencies entrusted with the responsibility of making inter partes decisions. Selective Training and Service Act of 1940, § 1 et seq., as amended, 50 U.S.C.A.Appendix, § 301 et seq.

Mr. John F. Sonnett, Asst. Atty. Gen., for petitioner.

Mr. J. Read Smith, of Brooklyn, N.Y., for respondent Sullivan Drydock & Repair Corporation.

Mr. M. H. Goldstein, of New York City, for respondent Roy Granata, etc.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Notes