(dissenting).
Furloughed by Capital Airlines at a time of seasonal decline in business, Robert Bar-bee went on duty as a pilot in the Air Force. Released by the Air Force, he has been denied reinstatement by his civilian employer. I think Capital Airlines has a clear duty, under congressional mandate, to restore him to his position “or to a position of like seniority, status, and pay”.1 What is surprising is that there could be any doubt about that duty, or any hesitation by the courts in its enforcement. The Supreme Court has long since ruled, first, that the statute is to be interpreted liberally for the benefit of those who have served their country in its armed forces; second, that a man on furlough is entitled to the protection of the act; and, third, that a veteran’s statutory rights cánnot be abridged by a collective bargaining agreement.2
Barbee’s status as a furloughed employee was clearly established. Capital’s letter of January 2, 1947, informed Barbee that it was “necessary to place you on furlough,” and advised him to “keep in touch with us so that you may be put back on our payroll as soon as business permits.” Later, on May 14, 1947, and May 1, 1948, while still in the armed services, Barbee was actually recalled by Capital. It is clear that Barbee was laid off by operation of a seniority system; he was furloughed, rather than discharged. A person so situated is, under the decision of the Supreme Court in the Fishgold case, entitled to the benefits of the act.3
The decision of this court in the Edwards and Young case4 is certainly no authority for depriving Barbee of his statutory rights. That decision did not hold that Capital Airlines’ collective bargaining agreement means that the company loses its power to grant lay-offs or leaves of absence, or that it must always completely discharge a pilot when seasonal lulls require a temporary lay-off. As the court said in that case, “The question is whether the release of
*511these men [Edwards and Young] was complete * * 84 U.S.App.D.C. at page 348, 176 F.2d at page 757. The court then resolved that question by finding that the releases given to Edwards and Young “denoted finality.” Ibid. Edwards and Young were permanently dropped, and knew it; their names were immediately stricken from the seniority roster. Here the facts are quite different. Barbee was furloughed, and twice recalled; his name was retained —and in fact was advanced — on the company’s seniority roster .for more than a year after his furlough began (Jt.App. 52). In such circumstances, the terms of the collective bargaining agreement do not in my reading of them deprive Barbee of his status or his right to reinstatement. And if the contract be read as having been intended to cut across the rights of veterans, it cannot be effective to that end. As the Supreme Court has said, “no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, at page 285, 66 S.Ct. 1105, at page 1111, 90 L.Ed. 1230.
The District Court was in error in granting summary judgment to Capital Airlines. On the contrary, basis appears for granting summary judgment in favor of Barbee. But that point need not be reached; it is enough to say that Barbee was entitled to have his case heard on the merits, rather than summarily stricken. Dewey v. Clark, 86 U.S.App.D.C. 137, 180 F.2d 766.
. Selective Training and Service Act of 1940, § 8, as amended 50 U.S.C.A.Appendix, § 308.
. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 287, 66 S.Ct. 1105, 90 L.Ed. 1230.
. Justice Douglas, writing the opinion of the Court in that ease, said:
“A furlough is not considered a discharge. It is a form of lay-off. So is a leave of absence. And whether either results from unilateral action by the employer or otherwise, consequences are quite different from termination of the employment relationship. * * * An employee on furlough or on leave of absence has a continuing relationship with the employer; he retains a right to be restored to work under specified conditions.” 328 U.S. at page 287, 66 S.Ct. at page 1112, 90 L.Ed. 1230.
. Edwards v. Capital Airlines, 84 U.S.App.D.C. 346, 176 F.2d 755.