*1 personnel possess techniques that courts do not to consider and act combinations of upon complex entering problems. factors into the The contribution damages courts must be made through awarding injuries suffered flying planes, from the granting injunctions prohibit their flying. When these two simple remedial devices are elevated ato con- stitutional level Fifth under the Amendment, as the Court today seems to done, have they can stand as obstacles better adapted techniques might be offered by experi- experts enced and accepted by Congress. Today’s opin- ion I is, fear, an opening wedge for an judicial unwarranted interference with power to develop solu- tions for new and vital problems. national In my opinion this case should be reversed on ground that there has been no “taking” in the constitutional sense.
Mr. Justice joins Burton in this dissent. FISHGOLD v. SULLIVAN DRYDOCK & REPAIR
CORP. et al. Argued May 6, 1946. May 27, 1946. No. 970. Decided *2 Attorney argued Assistant General Sonnett the cause petitioner. With him brief Gen- on the were Solicitor Wiener, McGrath, Bernays Frederick Robert L. eral Werner, Johnson, L. Abraham J. Searcy Sweeney, Paul A. Harris and Cecelia Goetz.
J. argued Read Smith brief for the the cause and filed a Dry Corporation, respondent. Sullivan Dock M. argued H. Goldstein cause and a brief for filed Roy Granata, respondent.
Ralph Gregg B. filed for Legion, a brief the American curiae, urging as amicus reversal. Padway
Briefs were filed as amici A. by Joseph curiae and Herbert S. Thatcher for the American Federation of Labor, by Mulholland, Frank L. Clarence M. Mulholland and Willard H. McEwen Railway for the Labor Execu- Association, Pressman, Cotton, tives’ and Eugene Lee Donner, Frank Abt, Katz, John Lindsay J. Isadore P. Walden, Meyers, Ben William Standard and Leon M. Despres Organizations for the of Industrial and certain affiliated in organizations, support of respondents. Douglas opinion delivered the
Mr. Justice Court.
Petitioner employee is an Drydock of the Sullivan & Repair Corporation. in He entered its 1942 and employ the, was into he inducted it until shipyard for at a
worked year a little over Army in the in He served 1943. Army certificate received a discharged and honorably and as a corporation for effect. He worked to that ended, Army in the he duty tour and, after his of welder welder. the duties of a qualified perform was still he cor forty days discharge, applied Within Training and right under the Selective as was his poration, 301, App. § 50 U. C. 885, Act of 54 Stat. S. Service 1 He was reem position. his former restoration to for August 25,1944. as a welder on ployed provides part: Act (a) naval forces Any person inducted into land or “Sec. training judgment service, who, in the under this those for and Act period satisfactorily completes his authority him, over training to a service section 3 shall be entitled and under period upon completion certificate to that effect of such any special training service, and include a shall record proficiency or merit . . . attained. “(b) any who, perform person In the case of such order to training service, position, and left or leaves a other than has temporary position, employ employer and who (1) (2) qualified perform certificate, receives such is still (3) application reemploy- position, duties of such ment within service— makes forty days training after relieved he is from such *4 “(A) position employ if such in the the was of United States Government, possessions, its or the District Territories or of Columbia, position person position such shall be restored to or such to a seniority, pay; of status, like and “(B) employ if position private employer, such was in of the a employer person position such shall restore such to or a such position seniority, status, pay employer’s of like and unless the changed have impossible circumstances so as to make it or unrea- so; sonable to do . . .” forty-day period ninety The days. has been extended to 8 Section in 1944, gives as amended right 58 Stat. the veteran a reemployed if application ninety days he makes “within after he is training relieved from hospitalization such and from service or contin- uing discharge period year.” after for a more than one Union Industrial 13 of the The and Local corporation had a of America Workers Shipbuilding of Marine and provided:2 which bargaining agreement collective and and increases “Promotions reclassifications upon based working in the force shall be decreases job. and Wherever length ability of service to do men, ability fairly equal, more is between two or length controlling factor.” of service shall be the off. decreased, work men would be laid shipyard As at the ability on foremen, The men selected the basis by report department and laid seniority, to be off would reassignment sen- head on the basis of relative their days when work On of nine iority became available. each spring petitioner although laid other off welders, possessing not veterans of the recent war, same similar skill as petitioner, given were work on days. those men preferred they These were because higher shop seniority petitioner. than The decision to lay petitioner off followed a decision an arbitrator who ruled that the seniority provisions of the collective bar- gaining agreement, we have required it quoted, and agreement provided: also “Any employee other probationary employee than a who is drafted Naval, Military or volunteers for the or Merchant Marine States, Service the United shall seniority standing. retain his
In further employee’s determination of seniority status, said length spent employee time in such service shall seniority count toward his if actually as he were continuously employed by Company. Any employee such who volunteers give isor drafted must Company notice of his intention to employment. Any so leave employee who, forty within (40) days after discharge his release or applies from said service for re-employment, shall be rehired Company, provided work is employee available reasonably and the duty. fit for Availability for work will according be .determined to accumulated seniority ability. re-employed, If employee said shall then receive the then current pay rate of job for the for which he is re-employed.” *5 of the the with provisions inconsistent they were Act of 1940. Training and Service Selective to suit, pursuant this brought Thereupon petitioner judgment as declaratory (e) Act,3 of the to obtain 8§ compensation to obtain the Act and rights under to corporation work. The to days was not allowed for the he of the the by provisions its answered, justifying action of the and the decision agreement bargaining collective It intervene.4 to permitted union was arbitrator. The was corporation in of the alleged its answer that the action bargaining the collective by provisions of warranted not in of Act. Dis- agreement violation judgment requested, declaratory trict Court refused (e) provides: 3 Section8 comply any private employer “In fails or refuses to with case provisions, (c), (b) the district the court of the employer of subsection or subsection private States for the district in which such United place power, upon business have maintains of shall filing motion, by petition, appropriate pleading other of a or person provisions, specifically entitled to benefits of such to require employer and, comply provisions, such such with as an thereto, compensate person wages any such loss incident or benefits suffered The by employer’s unlawful reason of such action. speedy hearing court any shall order a such case and shall Upon application advance it on the to the United calendar. attorney comparable States district which such for the official district private employer business, a place maintains any person claiming provi- to be entitled to benefits of such sions, attorney official, reasonably such if United States district person applying benefits,
satisfied that the so is entitled to such appear attorney person shall adjustment or other and act as for such in the amicable filing motion, petition, of the claim or in appropriate pleading prosecution and the thereof to specifically Provided, comply require employer provisions: against with such no fees or That court costs shall be taxed person applying so for such benefits.” appeared The United States as amicus curiae in the Court Circuit Appeals. appears It representative petitioner this Court as provisions reason of the (e). of 8 governed by Permissive intervention is Rule Rules timely of Civil Procedure which application allows it on “when an applicant’s claim or defense question and the main action have a law or fact common.”
281 the loss for judgment petitioner for money a but entered 25. 62 Supp. F. during days question. nine wages of the Act. the laid in violation of It was off petitioner held that agree- bargaining the It of the that collective was also view Act. the union Only with the was not inconsistent ment reversed, one Appeals The Court of appealed. Circuit Act the 2d It held that dissenting. 154 F. 785. judge claimed which he preference the give petitioner did not agreement bargaining the terms of the collective and that case here on is justified corporation’s the action. granted we because certiorari which for a writ of petition question presented. of of the importance the the the claim that the outset with I. We are met at judgment entered no the appealable union had interest that the Circuit accordingly by the District Court and It jurisdiction to entertain it. Appeals Court of lacked only money judgment entered is out that a pointed granted and no relief was against corporation the that judg- argued that against the union. It is therefore and right substantive the union ment did not affect an interest in the out- merely had that at most union precedent ad- might establish litigation come States, Tow Boat v. United verse to it. Boston Co. 321 guar- pointed statutory It is that U. S. 632. also out discharge for one year5 antee without cause 5 (c) provides: Act Section “Any person position in with is restored to a accordance who (A) (b) provisions paragraph (B) be of subsection shall during furlough having as on or leave of considered been absence forces, period training service land or shall in the naval partici- seniority, be so restored without loss of pate shall be entitled to pur- employer in insurance or other benefits offered relating practices employees on rules and suant established furlough employer absence with the at leave of effect person forces, not time was inducted into such and shall discharged year position cause from such without within one after such restoration.” (A) Paragraphs (B) in note of subsection are set forth
supra.
that
judgment,
District Court’s
at the time
expired
peti-
and that
granted,
relief was
declaratory
therefore no
It
adjudicated.
were
future
rights
tioner’s
and the
petitioner
between
dispute
contended
moot.
has thus become
union
*7
The
the
answer
argument
point.
But that
misses
v
question
in
the
put
the union
issue
corporation
bar-
between the collective
there was a conflict
whether
if
which one
and,
so,
pre-
the Act
gaining agreement and
bargaining agree-
parties
to the collective
vailed.
corporation
union and the
before
ment —the
—were
petitioner’s
A
court.
decision on the merits
claim
Act and
necessarily involved a reconciliation between the
if
bargaining agreement or,
appeared
the collective
it
they conflicted,
adjudication
superseded
that one
an
noted,
other.
weAs
have
the District
Court was
view that
bargaining agreement
collective
not
But,
inconsistent with the Act.
however the
might
result
be rationalized,
a decision for or
petitioner neces-
sarily involved a
construction
bargaining
collective
agreement. That
issue was adjudicated, with the union
as party.
a
Hence, if the union had thereafter instituted
a separate suit for
interpretation
an
of the agreement, it
would be met
judicata.
plea
with the
of res
And that plea
would be sustained,
prior
for the
decision was on the pre-
point
cise
which the
sought
union
to relitigate and was
adverse to the union. And both parties
agree-
to the
ment —the union and
corporation
parties to
—were
prior
suit. This elementary principle has long been
recognized. Black, The
Judgments
Law of
(2d ed.), pp.
764, 821, 936. As stated in Cromwell v. County
Sac,
283 And purpose.” for that been offered might which have Co., 413, 415; Grubb Fidelity Rooker v. see Trust U. S. Commission, Stoll 470, Public 479; 281 U. S. Utilities v. Drainage Dist. Gottlieb, County Chicot 165; v. U. S. Bank, case Baxter State 375, 378. The 371, 308 U. S. v. States, supra, Tow v. United of Boston Boat Co. would in agreement issue bargaining relevant if the collective Then the union’s parties.6 was one between different seeking re of one merely interest would be the interest precedent. “independent versal of And its an adverse right reason its relief” would be increased Sprunt the cause. Alexander & Son v. intervention States, United But rights U. S. 255. here the union cor and its members under a contract with the poration adjudicated were proceeding party. union was a The contract was still existence at appeal. the time of the Hence the case was not moot. *8 And the only itself way protect against union could binding interpretation agreement by was an appeal. For then the union in position found itself (Alexander Sprunt right where a &Son v. United its own States, supra, p. 255) adjudicated.7 was
It is suggested, however, that the result of what we do is to free the union and the employer from costs and Fishgold burden with them. There are several answers to that. The allowance of costs no bearing has on what
6In that case Boston Tow Boat
proceeding
Co. intervened in a
be
fore the Interstate
involving
Commerce Commission
the status of
sought
another
appeal
carrier.
It
to
from the adverse decision
right
the other carrier. That
question
was denied. The order in
was
not determinative of the status of
ques
Boston Tow Boat Co. That
tion was involved in another order
Commission from which
Boston
Boat
appeal
Tow
Co. had
pending.
an
7
closely
is
analogous
case
therefore
to one where the interest
property
of an
intervenor
litigation
adjudicated.
involved in the
Dexter Horton
Hawkins,
National Bank v.
924;
190 F.
United States
Development Co.,
v. Northwestern
is or moreover, rigid a rule. Under not, vailing party is can otherwise. court direct Procedure the Rules Civil provided (d). And has finally, Rule to the Dis- applies a veteran (e) of this Act that when 8§ the Act “no fees court the benefits of trict Court for against him. shall costs be taxed” designed The Act was We turn then to merits. II. was called ways. He who the veteran several protect to his return to on penalized to the colors was not be job. was, He his from his civilian more- reason of absence advantage gain country his an over, to service for stayed who behind. withheld from those which law are the Act8 and guarantees § These contained 8 of discharged quali- veteran, honorably and still to extend (1) He position. the duties his old has perform fied to reemploy- time in period apply a stated which for (b). ment.9 He a decision imme- pressed discharge diately opportunity on his but has make readjust future and civilian life. plans for the himself to (2) He must restored to his former “or to a position be seniority, position status, pay.” (A), of like 8§ (B). against receiving job He is protected thus inferior entering to that he before the armed services. (3) seniority” He shall “restored loss without having on furlough be considered “as been or leave of during period absence” of his service for his country, all of insurance accruing with and other benefits furlough employees (c). on or leave of 8§ absence. *9 Thus he step seniority does not back on the escalator at he point stepped steps precise off. He back at the on 8 (b) supra, (c) 8 1, Section is set forth in note and 8 note § supra. 9 noted, original forty-day period As we have has been extended ninety days. 1, supra. note See position his kept had he occupied have he would point not be dis- “shall (4) He the war. continuously during year within one without cause position from such charged (c). 8§ restoration.” after such meaning this to the down case comes Petitioner’s construed “Discharge” is “discharge.” against guarantee earnestly argued And it is “lay-off.” him to include vet- intended to restore not have Congress could without cause discharge his prevent to his position, eran actual perform that he intend yet one and not year, for if it work was available. bene- for the liberally construed legislation
This is to country their to serve private those left life fit of who Lightner, S. Boone v. 319 U. need. great its hour of See agreements practice employers 561, 575. And no down the service can cut employers between unions vet- Congress has secured the adjustment which benefits sepa- Our is to construe the problem eran under the Act. organic of an whole provisions parts rate Act as for the benefit of the each give as liberal construction separate interplay provi- as a harmonious veteran permits. sions position support petitioner’s
We can find no posi- which him his former provision restores § find “position seniority.” tion or to a of like Nor can we (c) it in that he “shall be so restored directs seniority.” said, without loss of As we these provi- have guarantee sions position veteran loss of or loss seniority by acquires reason of his absence. He only seniority had; the same in the he service armed services is plant counted as in the service so that he does ground not lose by reason of his absence. But we would distort the language provisions if these we read it as granting the veteran an increase seniority over what he would have had if he had never entered the armed serv- *10 Appeals Circuit Court agree We with the
ices. as restoration made the by provisions these job was original as complete substitute for nearly fairly priority can be gain or possible. step-up No protected against veteran loss implied. Congress The ground provisions or on his return. demotion position or seniority restoration loss of to his old without more. position seniority to a of like mean no against discharge guarantee Nor can we read into the gain step-up seniority. “from such That position” a guarantee seniority does not terms deal with the prob- problem lem. The seniority preced- covered ing provisions. The “from guarantee discharge position” enough is broad cover to demotions. veteran is entitled to be restored to his old position or a “position seniority, of like If status, pay.” within period the statutory demoted, he is his status, which the Act designed protect, has been affected and the old employment relationship changed. has been He would then lose old position acquire an inferior one. He would within the meaning (c) be “discharged § 8 from such position.” guarantee But the against discharge does not on its suggest face the grant preference of a veteran over and above that which was accorded seniority of “such position.”
Discharge normally means termination of the employ- ment relationship or loss a position.10 In common par- lance and in industrial parlance a person who has been laid by operation off of a seniority system and put aon waiting list for reassignment would hardly be considered 10 "Release or dismissal office, from an employment, etc.; as, the discharge of a workman.” Webster’s New Dictionary International (2d ed.). “To charge relieve office; (more usually) to dismiss from of- fice, service, or employment; to cashier.” English Dictionary. Oxford *11 terms “discharged.”11 There are three having as been cessation (c) types used in which relate to various 8 and a dis- “furlough,” of work —a a “leave of absence” furlough discharge. A It is charge. is not considered a a is of absence. And whether lay-off. form of So a leave employer from action or either results unilateral consequences different from termina- otherwise, quite are (c) employment relationship. tion Section 8 of the may the Act that insurance and other benefits recognizes or furlough continue accrue to an on on leave employee furlough An leave of ab- employee of absence. on or on continuing employer; relationship sence has a with the right specified he to be to work retains a restored under Thus when cover the conditions.12 desired to contingency lay-off, apt it words describe it. used that, If so long work, it had to enact as there was desired veteran, regardless no be tem- seniority, restored could porarily during following restoration, laid off the year his slackening required when the of work a reduction bound that forces, we are to believe it would have used recognized being a word of the kind which it as had itself that descriptive of situation. “position” to which the is the veteran is restored
“position” plus seniority. which he left cumulated Cer- tainly he discharged would have been such po- from
11Temporary suspension employee’s commonly of an work does not affect the continuance of his See Labor status. Board v. Waterman Co., 206; Heights S. S. S. North U. Assn. Whittier Citrus v. Labor Board, 109 F. 2d 82. “Lay-off” period during is defined as “A which a workman is tem- porarily work; dismissed or part allowed to leave his or season year during which activity particular game in a business partly completely is suspended; English an off-season.” Oxford Dictionary, Supp. Agreement Provisions, See Union Statistics, Bureau of Labor De partment Labor, H. 723,77th Cong., Sess., Doc. 8,14. No. 2d chs. of his the time if at get back, it and unable to
sition laid off been he had the armed services induction into his Plainly he still system. operation seniority of a in the same sense And when he was inducted. “position” continuity of interrupts the though lay-off retains it he on Moreover, a veteran statutory period. work equivalent “position” or its return is entitled to his old plant though application at the time of his even available, and no work is down, say retooling, closed “circumstances private employer’s unless of course the *12 or unreasonable” changed impossible have so as to make it (B). him. He entitled to be recalled to restore is in seniority. “position” to work accordance with his His though slackening then exists no work is available. of work which him to be laid off of a operation causes seniority system is neither a removal or dis- dismissal or charge “position” Congress from the in any normal sense. recognized the Act seniority systems the existence of and seniority rights. sought It preserve to the vet- rights eran’s under him systems protect those and to against loss under them by reason of his absence. There is indeed suggestion no that sought sweep to aside the seniority system. What it undertook to do was give to the veteran protection within the framework of the seniority system plus guarantee against demotion or termination of the employment relationship without cause for a year.
The construction which we given have “discharged” does not rob that guarantee of vitality. As the Circuit Court of Appeals observed, where there is a closed-shop agreement the union would normally afford its members protection against termination of their employment status without cause. But in many situations guarantee against dismissal without cause for year one is of great veterans granted a protection importance practical only. legisla- in its support Act finds construction
Our bill charge of the May Representative history. tive an amendment explained He House. floor of the on the be considered words “shall (c), which added 8§ furlough as on forces during the of service period dealing the clause elaborated absence” and also or leave of He said: other benefits.” with “insurance or of the amend- purpose chief “I may say the thou- rights of seniority is to preserve ment railroad em- thousands of hundreds of sands and who that character employees and other ployees In railroads. on the seniority privileges have certain during the time furlough them on words, putwe other permitted will they even service and they are their retire- question time on the count this Cong. Rec. 11702. ment.” Report of the Committee And before that amendment stated: Senate purpose as its has declared bill, in this Congress,
“The job par- man who leaves every and intent that reem- should be training and service ticipate this *13 upon other benefits seniority of or without loss ployed Cong., Rep. 2002,76th No. civil life.” S. his return to Sess., p. 8. 3d any in vain for legislative history the have searched
We the accorded protection the of that purpose statement by operation of right to work when was the veteran him. for none then available seniority system there was 8 of § amended said, however, that when It is inAct 798) extended the (58 Stat. and the Act 194413 it was (c) (59 166), Stat. change 8 § 1945 without (c) that interpretation of 8 § of an administrative apprised 13 1, supra. note See
290 regardless job
a veteran was entitled to his former
congressional
seniority;
approval
and that
therefore
in the
acquiescence
administrative construction would
inferred. See Massachusetts Mutual
Ins. Co.
v.
Life
States,
United
U.
An
269, 273,
288
S.
and cases cited.
interpretation was
Direc-
administrative
rendered
tor of Selective Service who was authorized to administer
Act.14 He
ruled that the Act required reinstate-
ment
a veteran to
position
“his former
like
one of
seniority, status,
pay
though
even
such reinstatement
discharge
necessitates the
with
greater
of a nonveteran
15 But
different
seniority.”
given
construction was
(c) by
8
handling
§
National War Labor
in its
Board
of disputes arising
negotiation
out of the
of collective bar-
gaining agreements.16 The Board read
Act
as we read
it.
ruling
may
Director
be resorted to for
Co.,
See Skidmore
guidance.
&
134,
v.
323 U. S.
Swift
Co.,
Mabee v. White Plains Pub.
140;
Affirmed. consideration part took Mr. Justice Jackson no or decision of this case. Black, dissenting.
Mr. Justice judgment of the Circuit I we believe should reverse direc- remand to it with Appeals Court the cause jurisdiction because appeal tions to for want of dismiss money The proper party appeal. Union was judgment was in favor of the Sulli- Fishgold Dry Company van Dock and Had the Repair Company. I judgment, no in which the would way see Union paid “aggrieved.” only have been advanced reason holding “aggrieved” the Court for Union that the that, had judgment the District Court on the remained books, judicially formulated doctrine of judicata res would have proceedings the Union in future barred from challenging District application Court’s particular federal statute to the collective bargaining agreement. A fair application judicata res party bars a in a litigation only second if proceeding involves the same issues litigation as the first between the same adverse parties privies. judicata This means that res could bar the Union only a new proceeding between it and Fish- gold privies. or his But there is no possibility litigation since the seniority right which the District Court Fishgold held had under the statute provi- had under its expired sions by the time the Union appealed. Res judicata would not have barred the Union a proceeding it between and any other party, since no other party was *15 And suit. present in the the Union adverse to party a the Union between any proceeding possible this includes Company, since that Company Dock Dry and the Sullivan trial court. party adverse a was not an though party, opinion support by Court’s the cases cited None of litigation in a is bound future party that a proposition but on party, not an adverse party that was cases, or litigation. Nor do these same in the side, earlier I for- aware, which am this Court of any other decision of of col- harsh doctrine the rule this Court the mulate as which jurisdictions, in a few estoppel, adopted lateral state same, always so as the issue losing party, long bars a is adverse though litigation the later involves different even never parties. doctrine, It this harsh unlikely been adopted by this would the future have Court, in- applied proceedings further to bar Union volving interpretation scope of its bar- collective In gaining agreement light in the the federal statute. my opinion Union would not have been barred trial judgment. court’s It was aggrieved therefore not an party and not appeal. entitled to
The result of permitting parties not adversely affected
to appeal
judgment
impose
is to
litigants
burdens upon
actually interested when those litigants may themselves
be fully satisfied with the judgment. The
res
scope of
judicata should not be
produce
extended to
such a result.
This case illustrates the wisdom
practice
permits parties to settle their own lawsuits without inter-
vention
others interested only
precedents.
Boston
States,
Tow
v.
Boat Co. United