(dissenting).
The facts of this case are ably stated in the majority opinion and need no repetition; as to its legal conclusion, however, I am unable to agree.
The majority opinion, it seems to me, is predicated not so much on the legal interpretation of the pertinent statute as upon the consideration that the employer finds itself in a position of conflict between two distinct obligations, namely, the union contract and the veterans’ statutory rights. It follows the majority opinion of this Court in the Gauweiler case1 where the Court while recognizing “the danger of pulling a judicial statement out of its context to support a conclusion on a question not directly before the Court” 2 detours other significant statements which in my opinion completely negative the conclusion reached by the majority of this Court.
The Supreme Court in the Fishgold case also said:
(1) “This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need. * * * And no practice of employers or agreements between employers and tmions can cut down the service adjustment benefits which Congress has secured the veteran under the Act. Our problem is to construe the separate provisions of the Act as parts of an organic whole and give each as liberal a construction for the benefit of the veteran as a harmonious interplay of the separate provisions permits.” 328 U.S. 275, 285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230, 167 A.L.R. 110. .(Emphasis ’supplied.)
(2) “The ‘position’ to which the veteran is restored is the ‘position’ which he left plus cumulated seniority. * * * ” 328 U.S. 275, 287, 66 S.Ct. 1105, 1112.
The Court furthermore said in Trailmobile Co. v. Whirls, 67 S.Ct. 982, 990, 91 L.Ed. in referring to its opinion in the Fishgold case:
(1) “t- * * it (Fishgold case) also squarely held that he was given security not only against complete discharge, but also against demotion, for the statutory year. And demotion was held to mean impairment of ‘other rights,’ including his restored statutory seniority for that year; * * * ” (Emphasis supplied.)
This statement followed the phrase, “he was not given so-called ‘superseniority,’ ” which in my opinion clearly indicates that the Supreme Court was carefully seeking to avoid any application of. the term “super-seniority” to a situation where by action of the employer, agreements or otherwise, *553the veteran might suffer demotion, since in the Trailmobile -case it also said:
(2) “It is therefore clear that Congress did not confer the rights given as incidents of the restoration simply to leave the employer free to nullify them at will, once he had made it. * * * ” 67 S.Ct. 982, 990, 91 L.Ed.-. And clearly recognizing the impact of the Labor Relations Act and specifically its salutary provisions relating to collective bargaining, the Court was careful to point out:
(3) “For the statutory year indeed this meant that the restored rights could not be altered adversely by the usual processes of collective bargaining or of the employer’s administration of general business policy.” 67 S.Ct. 982, 991, 91 L.Ed. . (Emphasis supplied.)
In this case, the situation is even stronger than that within the purview of the above statement because here the rights of the veteran were adversely effected l>y a collective bargaining agreement entered into not during tile statutory year but prior thereto in the absence of the veteran while in the armed forces of his country. I say that the veteran was “adversely effected” because his position of seniority on the employment list of the company was definitely at least one point lower, which in this case as to two of the veterans meant the difference between employment and nonemployment.
I am in complete agreement with Judge McLaughlin’s statement in his dissenting opinion in the Koury case,3 and consider it equally applicable in this case, that
“The ‘super seniority’ referred to by the majority in connection with this veteran is not, * * * the super seniority condemned in Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110 but is the ‘extraordinary statutory security’ given the veteran by Section 8 of the Selective Service Act of 1940 (54 Stat. 890 as amended).”
The majority opinion refers to “the utter impracticability of enforcing in the same plant two conflicting systems of seniority,” and also to the “impossible task which employers must endeavor to carry out * *
If the employer does find himself in a dilemma, it is because he has attempted to do that which he had no right to do, namely, to enter into an agreement which disregarded the statutory rights of the veteran, and in his absence. It must be assumed that such agreement between the employer and the union was made with full knowledge of the provisions of the Selective Training and Service Act of 194 0 4 and that the contracting parties were fully aware that any such agreement must necessarily be read in the light of such existing law.5
Nor do we feel that employers are faced with an impossible task in the adoption of a formula which would not only be workable but thoroughly consonant with the views herein expressed.
Here is a situation where a non-veteran by his own agreement has waived his seniority position in favor of a union steward whose only seniority is that accorded him by such bargaining agreement; the steward, in effect, occupying the position surrendered to him by the non-veteran.
In passing it may be noted that the question is posed here only because of the injection into the employment line-up of the union stewards. Were it not for them reinstatement would be predicated entirely on seniority, veteran, and non-veteran occupying their natural positions on the seniority ladder.
The stability of the jobs occupied by the respective union stewards depends entirely upon the relative positions on the ladder of *554seniority occupied by the veteran and the non-veteran, who under the terms of the contract has surrendered his position to the union steward'.6 The unvarying principle to be observed, here is that at ¿11 times 'the veteran retains his original rung on the'ladder, the non-veterans yielding their respective positions in accordance with the contract.7 For each additional steward added to this picture the non-yeterans must to that extent drop back in their respective order without disturbing the veterans on their respective rungs.
In the present case, we have three stewards with seniority predicated solely on the contract, — Sanders, a non-veteran, with-top seniority aside from the contract, and then three veterans with successive seniority as follows, Tlusty, Fitzpatrick, and Payne.8 Sanders yields his top position to union steward No. 1; Tlusty with second position would replace steward No. 2; and Fitzpatrick with 'third position would replace steward No. 3; Payne would be at the top of the recall list and if a fourth position were available, he would, of course, take it.9
I am of the opinion that the lower court was correct in reinstating the two Veterans but that the formula he used in so doing was incorrect in two particulars, namely in the relative order of the positions established by him, and in attempting to reinstate a non-veteran in place of a union steward.
See majority opinion, this case for Gauwciler citation.
The Court was referring to what it terms “repeated expressions of view in the Fishgold opinion.” Fishgold v. Sullivan Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110.
Koury v. Elastic Stop Nut Corporation, 3 Cir., 162 F.2d 541, companion ease to Gauweiler, supra.
54 Stat. 8S5, 50 U.S.C.A.Appendix, § 301 et seq.
In the trial of Di Maggio v. Elastic Stop Nut Corp. of America, 3 Cir., 162 F.2d 546, Trial Testimony pages 35 and 30, comment of counsel for employer, with admirable candor, was: “May 1 say, your Honor, in connection ■with tho observation which your Honor made a moment ago, that I would assume that all contracts are made subject to tho law existing at the time when the contract was made. This agreement between tho union and the company was made at the time when the Selective Service Act was in full force and effect. So I should im:i-gine that the agreement would be read in the light of existing law.”
For example, in clarification of the above rule, take the situations where there are one, two or three positions occupied by union stewards. If the position occupied by the one union steward is one that, under the contract, was yielded by a non-veteran with seniority superior to the veteran, the steward remains, the reason being that the steward is occupying the first or top rung of the seniority ladder which but for the contract would be occupied by the non-veteran, the veteran has suffered no demotion by remaining on the second rung. To place the veteran on the first rung would be to accord him super seniority. If, on the other hand, the non-veteran thus yielding his position to the steward was junior in point of seniority to the veteran, the veteran prevails, otherwise the veteran would be suffering a demotion.
' This rule is equally applicable to situations involving any number of union stewards and is not effected by the relative positions of • non-veterans and veterans on the successive rungs of the ladder of seniority.
, One other situation should here be considered. Supposing the first five rungs of" the ladder to be occupied as follows: non-veteran, non-veteran, veteran, non-veteran, veteran; the steward takes the place of the first non-veteran, who steps back to the second rung; the second non-veteran steps back to the fourth rung; the veteran occupying the third rung cannot be displaced by a contract to which he was not a party; the non-veteran occupying the fourth rung would take the sixth rung, leaving the second veteran on the fifth rung to which he is entitled.
Assuming two jobs available and one union steward, a non-veteran with seniority aside from the contract greater than the veteran, and the veteran, the steward would retain the first position yielded to him by the top seniority non-veteran and the veteran would take the second position to which he would be rightfully entitled as occupying the second rung of the ladder. On the other hand, if the veteran had greater seniority than the non-veteran aside from the contract, the veteran would take the first position and the steward the second position, being the precise position on the ladder yielded by the non-veteran.
No reference is made herein to the situations of Grinnan, Pompeo, and Frank since there were no appeals from the orders of the lower court dismissing the petitions of Grinnan and Pompeo and the order directing entry of judgment in favor of Frank, nor do their positions call for special comment.
If, however, the above order had included a non-veteran on the fourth rung and Payne on the fifth, the second steward would take the job, otherwise, Payne would be "accorded a super seniority.
I have discussed these various situations somewhat at length because I feel it will more dearly show the practical application of the only formula which according to my interpretation of the statute, in the light of the Fishgold and Trailmobile cases, can be properly applied so as to preserve the statutory rights of the veteran and at the same time give due and proper regard to the rights of the non-veteran, effected as they may' be by the union contract to which he was a party.