Fishgold v. Sullivan Drydock & Repair Corp.

328 U.S. 275, 66 S. Ct. 1105 (1946)



The guarantees of the Selective Training and Service Act of 1940 extend to a veteran, honorably discharged and still qualified to perform the duties of his old position: (1) He has a stated period of time in which to apply for reemployment. He is not pressed for a decision immediately on his discharge but has the opportunity to make plans for the future and readjust himself to civilian life. (2) He must be restored to his former position or to a position of like seniority, status, and pay. He is thus protected against receiving a job inferior to that which he had before entering the armed services. (3) He shall be restored without loss of seniority and be considered as having been on furlough or leave of absence during the period of his service for his country, with all of the insurance and other benefits accruing to employees on furlough or leave of absence. Thus 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. (4) He shall not be discharged from such position without cause within one year after such restoration.


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 non-veterans 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 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. The Second Circuit Court of Appeals reversed the compensatory damage award. On certiorari, the court affirmed the appellate court's judgment.


Was petitioner laid off in violation of the Act?




The Court further held that the Act's provisions guaranteed the veteran only the same seniority he would have had had he not entered the armed services, and his layoff was not considered a "discharge" under the Act. Had Congress intended that no restored veteran, regardless of seniority, could be temporarily laid off during the year following his restoration, it would have used such wording. The Court's construction of the Act was supported by its legislative history.

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