Di Maggio v. Elastic Stop Nut Corp. of America

McLAUGHLIN, Circuit Judge

(dissenting).

This case, companion to the Gauweiler and Koury appeals decided today, 162 F.2d 448, 544, is disposed of by the majority opinion on the basis of the decisions in those two cases.1 I agree with the majority that the Gauweiler case is more suitable for the clear and fair presentation of the main question involved, because of the absence from that matter of more or less confusing collateral factors which appear here and in the Konry litigation. I dissent from the majority holding in this case for the *549reasons expressed in my dissents in Gau-weiler v. Elastic Stop Nut Corporation of America and in Koury v. Electric Stop Nut Corporation of America.

There is in this case also evidence of arbitration of a grievance by a nonvet-eran claimant with union seniority against the employer for the position of set up man, the sort of job in question here. As in the Gauweiler and Koury suits this yet-eran was not a party to the grievance or to the arbitration. The circumstance that he may have been present at the arbitration hearing does not in any substantive way differentiate this situation from the Gauweiler and Koury facts.