*1 785 “good faith” judge district that the immaterial.5 arriving In at that conclusion we appropriate weight the admin interpretation.6 in istrator’s official This terpretation spoke a bonus employer “promises” “agrees” which the pay, “arranges” but also one which If, Administrator, pay. said the employer pays having a bonus “without * * * previously arranged” so, do count, then it does not but it if docs count “arranges” grant reg a bonus with ularity “may thereof amount application ascertained formu la.” That interpretation, which is not unr easonable,7 fits this case.
Affirmed. v.
FISHGOLD DRYDOCK & SULLIVAN RE- (GRANATA, PAIR CORPORATION Intervener). 196.
No. April 1, 1946. of Certiorari
Writ
Granted
See
Circuit Court of Second Circuit. 4,
March
1946.
624,
138, 139,
1223,
134, 137,
316
1716,
140,
U.S.
62 S.Ct.
U.S.
65 S.Ct.
161;
Ridge
involving
Corp.
to cases
“an identical
Jewell
Coal
v. Local
6167,
state of
Mine
facts.”
No.
Workers
5 Walling
Youngerman-Reynolds
161,
Cf.
v.
America,
169,
65 S.Ct.
supra,
425,
Co.,
Hardwood
1063;
Security
325
65
Nierotko,
Social
Board v.
1242,
Fishgold
1250.
637;
Dry-
66 S.Ct.
v. Sullivan
Repair Corp.,
Cir.,
6 Overnight
dock &
2
154
Missel,
F.2d
Motor Co. 316 U.
572, 580, 581,
785.
1216,
page
S.
62 S.Ct.
17; Walling
7
Duquesne
CHASE, Judge, dissenting. H. Stand- M. Goldstein William L. ard, City (Herman York both New Rosenfeld, City, counsel), New York Roy Granata. appellant Durham, City, of New Knowlton York respondent. Quinn, Atty., S. T. Vincent U. Brook Sonnett, Atty. lyn, (John N. Y. F. Asst. Gen., Robert L. and Searcy Werner L. Sp. Gen., Johnson, Atty. Assts. Goetz, C., of Washington, Cecelia D. counsel), the United movant. Pressman, C., Washington, D. Lee Cammer, of City (Eu New Witt & York Donner, Frank gene Cotton both of C., counsel), Washington, D. Con Organizations, of Industrial amicus gress curiae. Cohen, City, of New York Samuel J. Mulholland, Clarence M. Mulhol-
Frank L.
McEwen,
of company
this former
land,
H.
him to
Willard
21, 1944,
& Mc-
August
tion on
Robie
has never
Toledo,
(Mulholland,
Ohio
Ohio,
counsel),
Toledo,
controversy
dismissed
here at
Ewen,
him.
Viz.,
bar
Ass’n,
arises
amicus
because on three occasions:
Executives’
Railway Labor
*3
April 9, April 11,
May
on
17 to
and from
curiae.
May
inclusive,
give him
it refused
CHASE,
HAND,
and
Before
L.
work,
enough
because
not
there was
FRANK,
Judges.
Circuit
days
those
occupy
on
hands.
In so
preferred
welders,
refusing
not
it
other
HAND,
Judge.
L.
veterans,
higher shop
who had a
of
Industrial Union
Local 13 of the
plaintiff:
than the
accordance
this
Shipbuilding
of
Workers
Marine
and
agreement
company and
between the
judgment award-
appeals
America
from a
plaintiff’s
that,
position
the union. The
of
plaintiff
loss
ing damages
for his
to the
veteran,
8(b)
(c)
prior-
as a
and
him
§
lay-offs by
em-
wages
of
his
two
ity
except
over all his fellows
other vet-
Repair
Drydock
ployer,
and
Sullivan
;
position
erans
the union’s
is that
Corporation, against
ac-
alone the
merely
sections
restored him to
intervened,
brought.
union
tion was
The
place
hierarchy
in the
which would
defence;
charged
and
itself with the
had,
have
if he had
ab-
been on leave of
Railway Labor Execu-
during
period
sence
of
service. The
of In-
Association
and
tives
plaintiff
judge held with the
and
union
briefs, as
Organizations
filed
dustrial
have
appealed.
proper
appeal
only the
raises
amici. The
interpretation
(b)
(c)
and
of subdivision
B
Subsection
of
is the
§
Training
8 of the
and Service
of
Selective
§
operative source
privilege
of the
on which
(§ 308(b)
in 1944
Act of
as amended
relies;
plaintiff
it reads as follows:
308(c),
Appendix,
and
50 U.S.C.A.
employer
person
“Such
shall restore such
quote
margin).1
facts as
in the
The
position
position
to such
or
of like
judge
as follows.
found
seniority,
pay
and
status
the em
unless
ployer’s
changed
circumstances
have so
plaintiff
employ
entered the
impossible
it
to make
or unreasonable to do
Repair Corporation
Drydock and
Sullivan
position”
so.”
“Such
nowhere
defined
welder,
21, 1942, and
as a
December
except
position
tempo
as “a
other
employed
May
steadily
such until
rary position,
employ
Army.
of
when he
inducted
em
into
ployer.” Taking
He
July
itself,
until
and was then
served
clause
it
discharged,
honorably
beyond
and received a cer- seems to us
debate that it
not
8(a),
described
50 intended that
gain
tificate
the kind
seniority.
Appendix
308(a). At that time
It will be
.U.S.C.A.
observed that the grant
been,
was,
concededly
since
in the alternative:
and
has
ishe
to he “restored”
welder;
original position,
qualified as
or
a first-class
and
to one of “like
position
person
1 “8(b)
seniority,
to a
In the case of
such
status,,
of like
and
training
pay
who,
perform
employer’s
such
unless
order
circumstances
changed
position,
service,
so
impossible
left or leaves
has
as to make
and
temporary position,
or
than a
unreasonable
do
other
so.”
any employer
employ
(1)
and who
“8(c) Any person
po-
who is
restored
qualified
certificate,
(2) is still
snch
ceives
provisions
sition
accordance with the
position,
perform
duties
such
paragraph
(A)
(B)
(b)
of subsection
reemployment
application
(3)
makes
having
shall be considered as
been on fur-
days
ninety
after he is relieved
within
lough
during
pe-
or leave of absence
training
or from
such
service
training
riod
and service in the land or
continuing
discharge
hospitalization
after
forces,
naval
shall
so
be
restored without
year—
not more than
one
seniority,
par-
loss
shall be entitled to
position
employ
“(A)
inwas
if such
ticipate in insurance or other benefits of1
Government,
Ter-
States
its
the United
employer pursuant
fered
to estab-
possessions, or the District
ritories
Columbia,
practices relating
rules
lished
to em-
person
such
shall be
ployees
furlough
or leave of absence in
position
position or to a
of like seni-
such
employer
effect
the time such
pay;
ority, status, and
person
forces,
was inducted into such
position
employ
discharged
“(B)
position
if such
inwas
not
shall
be
from such
private
employer,
©f a
such
shall
within one
without cause
after such
position
such
restore
to such
restoration.”
which,
pos-
phrase
It remains to
consider
pay,” whenever
seniority,
status
reliance
seniority”
the chief
means
we understand
“like
phrase,
is.
sible. The
before;
opposite
view.
it of those
take the
seniority” as
the “same
seniority.
any gain
necessarily precludes
“shall
It declares
the veteran
position
that,
original
if
It follows
position with
such
be
shall be
longer
substitute
open, the
no
restoration”;
less, sen-
no
greater,
of no
interpret
should,
possible,
far as
But
position.
iority than the lost
rest of the
so as not to conflict
that,
implication
true,
there can
section;
un
particular,
to leave
so as
lost, but be
original
if the
seniority,
touched
be restored
available,
the veteran
*4
still
difficulty in
earlier defined.
is
There
no
would
for that
priority;
in
gain
to it with a
so,
“discharge”
permanent-
doing
means a
if
intend
Congress
not
pre-suppose
did
that
sep
employment,
end to the relation of
complete
nearly a
be as
substitute to
the
aration,
dismissal;
indeed
and that
original
it was
lost
substitute for the
ordinary meaning.
example,
the
its
For
hypothesis absurd
possible
make
to
II,
p.
Dictionary (Vol.
sub
Oxford
start
we must
face. Hence
its
I,
“Discharge”
“To relieve
3),
title
reads:
not
B
proposition
subsection
of §
that
office;
usually)
(more
of a
to
or
seniority,
up
in
step
only
grant
did not
office,
employment;
or
dismiss
service
any.
positively denied
but
“Lay
with
to cashier”:
this
distinction
off,”
p.
during
(Supplement,
8):
period
“A
intention
reads,
(c)
the
confirms
Subdivision
temporarily dismissed
workman
B
which a
subsection
disclosed. As
so
work;
part
to
leave
that
restore
allowed
probably
to
be understood
would
activity
year during
position season
only
same
to
the veteran
that
particular
game
partly
That
business or
was inducted.
he held when he
unfair;
completely suspended;
an off-season.”
was, however,
thought
to be
service,
Congress
were It
that
used
seems to us
“dis
there
in the
while he was
i.e.,
charge” in
sense:
the veteran
personnel
this
that
changes
likely to
be such
job
was
of his
back,
to be
for the same
might
he
find him-
assured
when
that
he came
which he was
be
had had
junior
he
self
to those over whom
—a
—for
drafted;
this, by
but
remedy
job
that
which he was
priority
he
when
left. To
very
implies—
in “restored” —as that
word
bill
was
amendment made while
an
subject
was
be
to the same conditions
status
Congress,
the same
he
job
subject,
had,
to which the old
had been
been
he
he
that
would have
had
only
exception
it should be
while
that
better
furlough
“on
or leave
absence”
so far
dif-
leave of absence for the
that
service. How far
he
might
improve
position,
he
it. The value of that
had
remained
as
fered
appear;
vary.
surance
work,
but
would indeed
In
actively
does not
a closed
at
little,
presupposed
presumably
clearly
that a
would
add
the amendment
union would not
member
might
allow a
Having
there
be.
difference
anyway.
interim
way
cause
In an
declared how the veteran’s
considered,” Congress open shop
true,
the same
position “shall be
would be
if it
partly unionized,
without were
added
should
that he
be “restored
been,
union;
seniority.”
purpose
but,
were
loss of
Had the
whenever for
protection
had not
pre
only
not
the veteran that
reason
to insure
put,
his being turned
steps upon
long
more
the vented
as he
should
lose
not
himself,
leave,
behaved
and that was an advan
had
but
than if he
been
ladder
tage
importance.
no mean
We
do
top,
go to the
can-
also that
should
we
proportion
what
know
in industry
ex-
conceive
would have
unions;
are not in
but their number is cer
words,
“without
loss
pressed itself
and,
tainly very large,
even
seniority.” They
express
have no such
them,
clause was of value
they are
implications
their
direct-
meaning, and
enough to give
purpose;
numerous
it a
opposite;
ly
disclose
a concern
say nothing
possibility that statu
possible
against his
demotion inconsistent
tory protection may
important
sup
any implied
promotion.
belief in his
plement
protection..
to union
that,
we are
these reasons
satisfied
ex-
For
concluding phrase
cept for the
of subdivi-
consider
When we
[S]
situation at
no
can be
(c) there
doubt
textual-
the time that
sion
Act
passed Sep-—
tember,
the right
construction
the union’s
1940—it
ly
extremely improbable
one.
rects
grant
proper
attorney,
meant to
district
“if rea-
that
any
sonably
meas-
as we are
satisfied”
broader
that a veteran “is en-
Act,
had be-
titled” to
pear
“ap-
the nation
uring it.
It is true that
benefits
deeply
attorney”
disturbed
its defenseless
and act as
come
him to en-
ready;
begun
force
position,
rights;
Attorney
to make
and the
Gen-
eral,
war,
appears
still
was not at
the issue
but it
from his intervention
action,
amicus
whether it ever would
in this
hung
balance
has read the law like
carry
If we
ourselves back
Director of Selective
be war.
On the
Service.
hand,
autumn,
other
adopted
recall
that summer and
National War Labor Board
presidential campaigns
opposite
of both
in In
that
parties
view
Re Scovill
upon
commitment
Manufacturing
have
avoided
W.L.R.
particu-
arbitrators;
question,
each
several of
and that
candidate
its
and the
larly
troops
Department
insisted that
should be sent Solicitor
of Labor did
original
act limited serv-
guid-
overseas.
an instruction for the
improba-
year,
ice
and it was
federal
in dealing
most
ance
conciliators
war
(16
481).
ble
within
time we should
veterans
L.R.R.
soil;
fight upon
our own
called
find,
So far as we can
these are
proved,
as indeed the event
*5
only interpretative rulings
that have as
peace
September,
still
1941. Con-
yet appeared by officialswho' can be said to
gress
calling young
men
colors
charged
duty
have been
in admin
adequate preparation
give
them an
Act;
istering
and
can hardly
it
be said
our defence, but with no forecast of the
they
have had that consistency to
appalling experiences
lat-
which
were
yield
which
judgment.
we
our
We
undergo. Against
background
er
forget
do not
the canon
which the
proposal
likely
it is not
would then
plaintiff invokes is not confined to decisions
accepted
have
priority,
industrial
been
partes,
inter
like those of the Federal
length
of
regardless
their
of em-
Commission,
Trade
merce
the Interstate Com
ployment,
unmarried men—for
most
Commission,
Board,
the Labor
thirties,
part
thirty
under
men in the
—over
Court;
the Tax
it extends also
the in
fifties,
forties or
wives and chil-
who
terpretations
officials, charged
of
with the
dependent upon
Today,
dren
them.
in the
duty
enforcing
of
statutes. Skidmore v.
light
happened,
of what has
Co,
134,
161;
&
323
Swift
U.S.
65 S.Ct.
granted may appear
altogether
then
in-
States,
Great Northern
Co. v. United
R.
services;
adequate equivalent for their
but
262,
529,
315 U.S.
62 S.Ct.
perhaps, somewhat the circum example, impression For final stances. successive recen as to the in doubt left may Internal Act testimony have sions of the Revenue are the as a whole which his result Treasury detailed conferences between the After had first subcommittee. he left on Congress; subject, presiding chair- committees of mentioned “Mr. It he serves Johnson: is not clear that the time that “Mr. Johnson: And seniority. se- means former does affect his (cid:127)in armed forces not Keesling: niority? “Colonel Would not Keesling: right. seniority He loss of if a nonveteran increased That “Colonel n without seniority. by years seniority crediting loss be restored years’ employee seniority mean he does with 2 that Harness: Does “Mr. seniority years spent has ac- the 2 the armed forces? lose of the not might his'induction, up quired time of “Mr. Johnson: It mean without to the gets ac- that has loss of what ho had before. that he Keesling: way plus working, That him while he was “Colonel not the crued Army? have construed it. he served the time Keesling: right. not The latter “There has been difference “Colonel opinion groups far as the labor Whose construction “Mr. Plarness: says any person The act are concerned. ? Keesling: Ours. The lan- is restored shall be restored without “Colonel seniority.” says guage It loss of is clear. loss shall be restored without seniority. that, in good Supreme to assume and there is reason should reach the Court as soon changed, possible. exist so far as statute in even less ing regulations and formal expressing We cannot conclude without terpretations expressly That affirmed. hope, may realized, not be in the case may proper inference well he may that our not be as in- decision taken n recensions, accompanied general all dicating any indifference to claims by ordinarily are continuous inti these those who stood nation hour administrative of mate consultation with hazard, of its need at the and so often with seem hazardous to ficers. But it would loss, of all dear. that life holds carry a conclusion situation reversed; complaint Judgment dismissed. here bar. far concerns So actual conveyed Congress, information it was CHASE, Judge (dissenting). .at most which we confined to the occasion I cannot and (c) believe discussed, gratuitous for would be amended, the Selective Service Act as suppose that the same information ever U.S.C.A.Appendix 308(b, c), has been Military reached Committee of the Senate by Congress. effect intended aside, ambiguity That Affairs. has been mean that an honor construed impute here, .(cid:127)arises if we Con were to ably discharged veteran is entitled gress knowledge administrative timely application restored to his old rulings, rulings as arises from the them job, having, here, such a job continued selves, for the decisions of the National exist, keep it for a unless Labor Relations Board of the Solicitor his employer cause Department preceded Labor both party has not contract with a third oth suppose 8(c). amendment of To n Congresswas agreed. erwise That seems to be too nar set of familiar with rul put upon row a construction to a remedial ings and other would base ought interpreted statute which to be lib fact, great less in and involve the canon erally favor of the veterans for whose uncertainty already er attaches to its benefit it was Light enacted. See Boone v. use, which —be it said 'all deference-— ner, 87 L negligible. -is no means We should be .Ed. 1587. clutching phan at straws and relying *7 toms, suppose if we were to that the re-en is no controversy There real between the very appellee spe actment of this section with employer its and his ap- who took no cific peal was amendment intended to previously effect and who had so restored to the n vital change position in industrial veteran held; relations. Cer he had formerly tainly kept we should be unwarranted in had him continuously believ at work in it for ing that months; would have about made so seven presum- far and would reaching change ably without notice to those have continued to do for at least n whohad an interest equal year by veterans action but intervening themselves —the Finally, unions. as in union. The ap- latter which is sole pellant case the effect rulings of unaccom insisted that had contractual right panied by to have veteran statute, displaced amendment of when- necessary ever said, make room for all is only when the canon is non- help veteran union member who doubt; had been em- and, when the intent is in otherwise ployed every a month after about and a half before allowance the differences plaintiff originally been hired and actually arisen, which have we cannot yielded the employer to this demand. The “bring ourselves to abandon construc ability plaintiff to do work is un- adopted. tion we As for judicial in questioned and it is even intimated that terpretation, this is the appeal; first and gave any cause for discharge. only decisions in the district courts are apparently equally divided. Whirls v. The Thus clear cut issue is whether Con- Co., D.C.S.D.Ohio, Trailmobile 64 F. gress by this statute intended to make sure Supp. against take; view we those who required were by Barnett, Olin Industries Inc. v. D.C.S.D. their terminate non-temporary employment Ill., F.Supp. is in accord. The and serve in the armed forces should also fact that are agreed ourselves not by cau be entitled it to resume their former tions us that we should not be too employment, sure of equivalent, or the and keep conclusion; our obviously and the really for a their honorable dis- important matter question is that service, provided they were accordingly fill or shall naval willing to forces” and and and able continued to be seniority, (and) suffer whether no “loss of satisfactorily; or position participate entitled or oth- and oth- insurance appellee Congress merely left this pursu- right to er benefits offered nothing by but the ers like him practices re- count- ant established rules and forces armed have their time lating employees furlough or leave employers on old ed worked for their as time displaced employer at the time of absence with the they competed others not as such such forces. statute, jobs, ones inducted into old for their ” * * * veteran Thus far returned standards good, whatever according to employee third but the-status an employers and some competition their given a furloughed leave of impose upon has been fit to party saw contract absence actual termination of em- if the correct construction And them. ployment agree I his insurance let Congress intended to the statute be that like is to be de- or other beneficial status try readjust them- returned veterans regulations only termined under the rules might with an un- they selves as best not, applicable inducted thereto when he was status,” impaired “seniority when job purpose that for this the statute with and jobs, an actual there were such no loss it to done the basis of quires could live least on pay actual on deference, only seniority away. while Yet say must year, I virtually respect seniority count made to which have words were used negatively no loss and then in that the statute so restrict out of be read should be relative diminu- suffered meaning. its absence. Then Con- tion of it 8(b) (A) provided first provide gress, not that much content to the statute for the kind (B) more, 8(c), vet- also discharged honorably veterans should tions get. They eran another and different kind (1) their should be dependent any way which was made positions. providing In former employee- upon an status as mentioned. Then seniority was not even rights employee as such equiva- give the (2) in the alternative to is an- furlough or leave of absence. positions former lent to men whose independent right added and conferred non-existent, provided that the vet- plain people clear and words which who- position seniority, given a “of like eran be express unmistakably thought want to customarily their status, just quoted pay.” The words They use. "and shall not are “posi- not some relative defining position from such without- figurative line of men available tion” in a cause within after such restora- position which the vet- work but a mean that alter- tion.” Unless these words “a actually eran could work. words honorably discharged has been- an given seniority, status, pay” like entitled', *8 equivalent setting in their are but keep may in- under the statute he at work job just good equal pay.” “a as More- year provided it for a there is such work- over, alternative definition of the his; gives and he no done cause for plays proper part any- tion no this case discharge, nothing. I submit mean way appellee since the was restored to position and mention it old I Congress prohibiting not was here mere- have been on as it seems to justification majority relied some discharge employment ly from but dis- construing 8(c) as the § position.” did from “such It not' It has there done. that the free, employer “lay-off” leave the re- provision decisive is found. will, employed or shift him veteran from position as good, to another not one having plain After made it in § deprive particular him of otherwise get job that the veteran should his old back pay kind work and good, Congress one as had' be offered next in 8(c) equally plain gave made clear lan- been “restored.” a- veteran guage privileges security position year that certain went with the this before he They job. simply are of kinds. The ousted two first is could be from it because- position right that the carries with it someone contract with employer had a employee which, statute, re-employed of the former to thus but for the him a>. as right deny be treated been “on senior it. To the- the furlough right during during or leave absence work “discharge” of training year pe- and service the land from it for the
793
Congress passed
deprivation
calling
finally
such ac- And
this statute
riod of his
may for
anything
honorably
else
the benefit alike of
dis-
“lay-off” or
one
tion
charged
fact
veterans who
alters the
had been
name neither
taken
choose
employment
more stable
what
a choice
is called
justifies
nor
the action. Such
recognized temporary.
simply
pur-
There is no
what should
discernible
labels
pose
stat-
not to
attempt
treat them all
to circumvent
futile
good
why
reason
should not
ute.
in-
intended make a man who was
plain
Moreover,
seemingly
me
if this to
ducted
secure in his
closed
may
simple language
fairly be said to
job during
the first
after his return
ambiguity lurking
first some
have had at
open shop
inducted
man
from an
by
Di
interpretation of it
in
rector of Selective
One much
would be.
need
other
would
Service should be
adjustment period
facing
this
before
up
present pur
enough
to clear that
competition
the full brunt of
job.
per
Director in
poses.
made
It was
I think
has word and act well
required
forming
duties the statute
him
purpose
provide
demonstrated its
perform
though not of course bind
equality of
respect
treatment
the courts it
entitled
ing
gardless
private
contracts made by
respect
customarily given
is now
same
like
anybody.
interpretations
statutes
other ad
I dissent.
perform
acting
officers
ministrative
duty.
interpretation
That
of their
ance
alone
persuasive
be most
for was
would
least a reasonable one. Skidmore
v.
Co.,
161;
323
134,
&
U.S.
65 S.Ct.
Swift
Transp.
Missel,
Overnight Motor
Co. v.
572,
1216,
1682;
316
62
86 L.Ed.
U.S.
S.Ct.
Great Northern R.
v. United
Co.
836;
315
62 S.Ct.
U.S.
NORTHWESTERN ENGINEERING
v.
CO.
Scott,
Cir.,
Baze
sary to make room qualified for veterans for and seeking positions. their old