Before BIGGS, GOODRICH, and McLAUGHLIN, Circuit Judges.
This litigation presents a new phase of the problem of veterans' rights under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., of which the relevant amended portion of section 8 is cited in the margin.*fn1 The following set of facts will present the question involved.
A man is employed by a corporate employer. His employment is interrupted by his call for service in the armed forces. He qualifies and is inducted into the army. During his absence a new contract is negotiated by the employer and the union which is the authorized bargaining agent for employees in the plant. Under the terms of the new agreement, the seniority provisions which existed earlier are modified so that certain union officials become entitled to a higher seniority than anyone else. In course of time our employee returns from his tour of duty, and is discharged under circumstances which fulfil all the qualifications to give him the benefits of the statute. He resumes his former employment. A lay-off occurs due to slackening of work in the plant. Following the provisions of the contract, the company lays off the returned veteran before laying off union officials who, under the contract, have seniority superior to the veteran, but who, in point of service, are junior to him. Has the veteran a claim against his employer for violation of the provisions of the statute?
We have, to aid us, two Supreme Court decisions: Fishgold v. Sullivan Drydock & Repair Corp., 1946, 328 U.S. 275, 66 S. Ct. 1105, 90 L. Ed. 1230, 167 A.L.R. 110, and Trailmobile Co. v. Whirls, 67 S. Ct. 982. To these should be added the very able discussion of the Fishgold case by the Circuit Court of Appeals, 2 Cir., 1946, 154 F.2d 785. Neither case is directly in point. The Fishgold decision dealt with the question whether the veteran had, by virtue of the statute, acquired a super seniority over all non-veteran employees of the plant. The Trailmobile case was concerned only with the duration of the veteran's restored seniority standing. This Court, therefore, must decide the new question as best it can without precedent on which to lean for help.
We do have, however, from the majority opinion in the Fishgold case what seems to us a pretty clear statement of the Supreme Court's view of the purpose and effect of the Act. While we quite realize the danger of pulling a judicial statement out of its context to support a conclusion on a question not directly before the Court, we think the repeated expressions of view in the Fishgold opinion give us something far more than a single casual dictum possibly could.We quote from the opinion therefore upon the question of what the Supreme Court considered the returning veteran's rights to be with regard to his position in former employment.
The Court said: "* * * he does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war." 328 U.S. at pages 284, 285, 66 S. Ct. at page 1111. "* * * 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. But we would distort the language of these provisions if we read it as granting the veteran an increase in seniority over what he would have had if he had never entered the armed services." 328 U.S. at page 285, 66 S. Ct. at page 1111. "* * * by these provisions Congress made the restoration as nearly a complete substitute for the original job as possible. * * * Congress protected the veteran against loss of ground or demotion on his return." (328 U.S. at page 286, 66 S. Ct. at page 1111) "Congress recognized in the Act the existence of seniority systems and seniority rights. It sought to preserve the veteran's rights under those systems and to protect him against loss under them by reason of his absence. There is indeed no suggestion that Congress sought to sweep aside the seniority system.What it 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 page 288, 66 S. Ct. at page 1113).
This same concept of veterans' rights was repeated, and approved by strong implication, in the language of the majority opinion in the Trailmobile decision. "The Fishgold case," says the Court, "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." 67 S. Ct. at page 983. And, again, "He [the veteran] 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'". 67 S. Ct. 991.
All this means, we think, that what the Act gives to the veteran is the right not to lose his position or seniority by virtue to his absence in military or naval service. He is protected, while away, to the same extent as if he had been either continuously on the job in the plant or away on furlough or leave of absence for some personal reason.
Let us consider briefly what our employee's seniority rights would have been, had he remained continuously employed in the plant, without having been called away to war service. He would, of course, have had his rights fixed as to seniority, working conditions, pay, and all the rest, by terms of the contract entered into between the recognized bargaining agent and the employer.*fn2 Furthermore, the terms of such contract would have been the measure of his rights whether he was, himself, a member of the bargaining union or not. That is one of the incidents which results from the collective bargaining practice carried on by the bargaining agent designated by the majority and is indeed no more than the application in the industrial world of what we all experience in the world of public affairs.
In entering into labor contracts, the bargainers must make their agreements with a view to the rights of the entire group bound by them, and not enter into agreements which discriminate against one part for the benefit of another.*fn3 The provision for top or preferred seniority for union officers and other officials is neither uncommon nor arbitrary.*fn4 It may add a pleasant emolument to a particular union office, but it also provides what union members may well consider a highly essential matter: that is to have their own representatives on the job to look after their interests, so long as work is being done in the plant.
It is to be emphasized that in our case there is no suggestion of discrimination against veteran-employees. The significance of that point was mentioned by the Supreme Court in the Trailmobile case, 67 S. Ct. 982 at page 991. Discrimination would, obviously, change the whole picture. If, during the absence of some of the employees at war, those remaining got together and created union offices for themselves so that everyone had an office, and then proceeded to provide top seniority for union officers, a court would have no trouble in seeing that this device was simply an effort to discriminate against absentee fighting men. No such point is involved in the problem before us.
The considerations above stated bring us to the conclusion that the employee absent in war service is bound by the non-discriminatory arrangements made between the bargaining unit and the employer during his absence. This fits precisely with the concept of rights under the statute enunciated by the Supreme Court in Fishgold and reiterated in Trailmobile. The veteran does not lose by his absence. He simply remains as if he were on the job and subject to the well established and accepted routine of collective bargaining, so far as this particular right of seniority is concerned.*fn5 That, is all we are passing on in this case.
This result is, we think the only practical one from the standpoint of both plant operation and collective bargaining.*fn6 If our veteran could displace a junior union officer, he, himself, could be displaced by a senior non-veteran. The result would be that neither union officer nor veteran was on ...