Evening star., 1946-03-18
High Court Gets
GI Job Seniority
Case This Week
Veteran to Seek
Ruling on Rights
For Unemployment

NS SsiiPiOyinSHt
The Supreme Court will be asked
this week to decide once and for
all what Congress intended when it
guaranteed unemployment. rights to
the men who went to war.
knoWlton Durham, counsel for
Abraham Fishgold, central figure in
q New York case involving so-called
super-seniority" for returning vet
Grams, told The Star he is getting
the papers ready now to apply for
Supreme Court review of the case
and will file his petition within
week.
Mr.. Fishgold, welder before he
entered the Army, returned to his
old job with an honorable discharge
after IA months in the service
When work was slack, according to
the court record, he was laid off
while nonveterans with greater
seniority in the shop stayed on the
job.
Court Victory Reversed.
He won his case in Brooklyn
District Court on the ground that
veteran had seniority over all non-
veterns, but the Second Circuit
Court of Appeals earlier this month
reversed the District Court decision.
The tribunal split on the decision,
however, which led the majority to
comment:
THE fact that we are ourselves
not agreed cautions us that we
should not be too sure of our con-
clusion and obviously the really i'm
portant matter is that the question
should reach the Supreme Court as
soon as possible" -
Exactly what veterans are en-
titled to in the way of re-employ-
ment rights so far has been the
most bitterly contested issue in
volving veterans. The Justice De-
partment, which entered the Fish
gold case as friend of the court"
has lined up behind selective serv-
ice in contending that the veteran
has an absolute right to get his
job back and hold it for a year
regardless of union contracts which
>set up a seniority system.
Wv CAHouS oppOSe StanQ.
CIO unions are lined up solidly
on the other side. 1t was the CIO
Industrial Union of Marine and
Shlpbuilding Workers of America.
which appealed from the District
Court decision in the Fishgold case.
So far, District Courts have split
on their Interpretation of this sec
ton OF the Selective Service Act
with two decisions for and two
against so-called "superseriority"
for veterans.
In reversing the District Court de-
clslon, Justices Learned Hand and
Jerome N. Frank held that Congress
meant that a veteran was to be as
sured OF his job for year but that
the job to which he was restored ,
was to be subject to the same con-
dlt1ons to which the old job had
been subject.
The majority opinion recalled the
time when the Selective Service Act :
was originally passed-when the ,
country was not at war-and added ,
that against that background it is :
not likely that a proposal would
have been accepted which gave in
dustrial priority, regardless of their
length of employment, to unmarried
mentor the most part under 30
over men in the 30s, 40s or even Sos
who had wives and children depend
ent upon them for support"
To-day, in the light of what has !,
happened" the majority opinion
continued, "the privilege then grant
ed may appear an altogether made 5
quate equivalent for their services; $
but we have not to decide what
is now proper; we are to reconstruct,
as best we may, what was the pur- &
pose of Congress when it used the
words in which - (the re-employ-
ment provisions of the Selective
Service AcD were cast"
Dissenting Opinion.
In his dissenting opinion, Justice
Harrie Brigham Chase pointed out r
that it was the union and not MI. Y
Fishgold's employer, the Sullivan I
Drydock and Repair Corp, which
took the appeal. The union, he
said, was insisting that it had the r
contractual right to have the vet
eran displaced whenever necessary S
to make room for a non-veteran[ v
union member who had been en- O
ployed about a month and a half d
before Mr.. Fishgold was originally a
hired. n
Justice Chase held that Congress
did not leave the employer free to S
lay off returned veteran at will {
but meant that the veteran should r
have "a year of security in this posi- c
ton before he could be ousted from
it simply because someone had a
contract with an employer which, !
but Tor the statute, gave him
senior right to it,"
Congress intended the re-employ-
ment provisions for the benefit of
all honorably discharged veterans, a
wrote Justice Chase, adding: d
There is no discernible purpose "
not to treat them all the same and p
no good reason why Congress should a
not have intended to make a man N
who was inducted from closed
shop as secure in his job during N
the first year after his return as a Il
man inducted from an open shop h
would be. One as much as the 9TH X
er would need this adjustment peri
cd before facing the full brunt of h
competition for his Job" til