(concurring).
Section 8(b) (B) of the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 308(h) (B), commands that the veteran be restored to the position which he occupied when he left civilian life “or to a position of like seniority, status and pay * * Examination of the statute and an estimation of the results which Congress intended to achieve make it apparent, I believe, that a literal interpretation of the quoted words is an impossibility. At first impression it would seem easy to give the veteran seniority, status, and pay “like” that ’ which he had. For example, to award him pay like that which he had would seem to require only simple arithmetic and the fixing of his status and seniority apparently should entail no greater effort. “Seniority” is a rule fixing an employment service period and “status” is no more than the condition of an individual’s right to employment. It appears from the decision of the Supreme Court in the Trailmobile Co. case, 67 S.Ct. 982, that the bundle of rights represented by “seniority, status, and pay” are not sev-erable.
The seeming facility with which the results apparently required by the face of the statute may be achieved vanishes on consideration of the facts of the instant case and what would occur here if the statute were applied literally. The circumstances of the case at bar demonstrate the difficulties inherent in resolving a case where a veteran seeks reemployment, where there are a large number of employees, and where there are existing collective bargaining agreements providing seniorities for designated union officials and for other personnel. Under the decision of the court below and under the interpretation contended for by the veteran, Di Maggio, he will displace the union official (Yorke) given seniority under the collective bargaining agreement. Then, under the decision of the Supreme Court in the Fishgold case, the veteran will be displaced by one of two non-veterans (Nyulazy or Polewchak) both of whom have greater, seniority than the veteran. Nyulazy or Polewchak in turn will be displaced by the union official (Yorke) under the collective bargaining agreement who will again be ousted by Di Maggio. This process must be repeated ad infinitium. The result will not be a workable system of seniority but a merry-go-round infinitely destructive to industrial peace. Two or three or more systems of priority will be in effect at one time in a single plant. This is an industrial impossibility, working a result which Congress could not possibly have intended. Under the “escalator” doctrine set up by the Supreme Court in the Fishgold case, 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110, every veteran is to be fitted into a single seniority system which must he held to be binding on him and on all veterans unless it discriminates against veterans per se. The reason of Section 8(b) must prevail over its exact letter. United States v. Kirby, 7 Wall. 482, 74 U.S. 482-486, 19 L.Ed. 278.
For these reasons I concur in the views expressed in the majority opinions filed respectively in the case at bar and in Gauweiler at No. 9253, 3 Cir., 162 F.2d 448 and in Koury at No. 9272, 3 Cir., 162 F.2d 544 as well.