Fishgold v. Sullivan Drydock & Repair Corp.

No. 970. Argued May 6, 1946.-Decided May 27, 1946.

laid off

After serving in the Army and receiving an honorable discharge, petitioner was reinstated in his former position pursuant to § 8 (a) of the Selective Training and Service Act of 1940. Subsequently, when there was not enough work to keep all employees busy, he was temporarily on nine days while non-veterans with higher shop seniorities were permitted to work; but he was given work when enough became available. He sued for a declar- atory judgment as to his rights under the Act and to obtain compensation for the days that he was laid off. The union inter- vened and alleged in its answer that the employer's action was in accordance with the provisions of a collective bargaining agreement

276

Statement of the Case.

and was not a violation of the Act. The District Court held that petitioner was laid off in violation of the Act and gave him a money

1. The Circuit Court of Appeals had jurisdiction of the appeal,

since the union's answer put in issue the question whether there was a conflict between the collective bargaining agreement and the Act and, if so, which one prevailed. That issue being adjudicated with the union and the employer as parties, would have been res judicata as to the union had it not appealed. Pp. 281-284.

2. The temporary "lay-off" of petitioner while other employees

with higher shop seniorities were permitted to work did not vio- late § 8 of the Selective Training and Service Act of 1940.

Pp. 284-291.

(a) Sections 8 (b) and (c) do not grant a veteran an increase in seniority over what he would have had if he had never entered the armed services. P. 285.

(b) An employee who has been laid off in accordance with a seniority iystem and put on a waiting list for reassignment has not been "discharged" within the meaning of § 8 (c), which forbids the discharge of a reemployed veteran without cause within one year.

Pp. 286, 287.

(c) Nothing in the legislative history of the Act indicates a * purpose to accord a veteran the right to work when by operation of the seniority system there is none available for him. P. 289.

(d) The fact that, when Congress amended § 8 of the Act in 1944 'and extended the Act in 1945 without any change in § 8, it was apprised of an administrative interpretation by the Director. of Selective Service that a veteran was entitled to his job regardless of seniority is not controlling-especially when the National War Labor Board has given § 8 (c) a different construction in handling disputes arising out of the negotiation of collective bargaining agreements. Pp. 289-291.

3. Administrative interpretations of the Act by the Director of

Selective Service may be resorted to for guidance; but, not being made in adversary proceedings, they are not entitled to the weight which is accorded administrative interpretations by administrative agencies entrusted with the responsibility of making inter partes decisions. P. 290.

154 F. 2d 785, affirmed.

Petitioner sued under § 8 (e) of the Selective Training and Service Act to obtain a declaratory judgment as to his

275

Opiniion of the Court.

rights under the Act and compensation for the days he was laid off from work. The District Court refused the declar- atory judgment but gave petitioner a money judgment for the loss of wages. 62 F. Supp. 25. The Circuit Court of Appeals reversed.

154 F. 2d 785.. This Court granted certiorari. 327 U. S. 775. Affirmed, p. 291.

Assistant Attorney 'General Sonnett argued the cause for petitioner. With him on the brief were Solicitor Gen- eral McGrath, Frederick Beitnays Wiener, Robert L.

Werner, Searcy L. Johnson, Paul A. Sweeney, Abraham J.

Harris and Cecelia Goetz.

J. Read Smith argued the cause and filed a brief for the

Sullivan Dry Dock Corporation, respondent.

M. H. Goldstein argued the cause and filed a brief for

Roy Granatai respondent.

Ralph B. Gregg filed a brief for the American Legioi, as amicus curiae, urging reversal.

Briefs were filed as amici curiae by Joseph A. Padway and Herbert S. Thatcher for the American Federation of Labor, by Frank L. Mulholland, Clarence M. Mulholland and Willard H. McEweni for the Railway) LAor Execu- tives' Association, and. by Lee Pressman, Eugene Cotton, Frank Donner, John J. ,Abt, Isadore Katz, Lindsay P.

Walden,. Ben Meyers, William Standard and Leon Al. Despres for the Congress of Industrial Organizations and certain affiliated organizations, in support of respondents

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner is an employee of the Sullivan Drydock & Repair Corpioration. He entered its employ in 1942 and

Opinion of the Court.

worked for it at a shipyard until he was inducted into the Army in 1943.. He served in the Army a little over a year and was honorably discharged and received a certificate to that effect. He had worked for the corporation as a welder and, after his tour of duty in the Army ended, he was still qualified to perform the duties of a welder.

Within forty days of his discharge, he applied to the cor- poration, as was his right under the Selective Training and Service Act of 1940, 54 Stat. 885, 50 U. S. C. App. § 301, for restoration to his former position.1 He was reem- ployed as a welder on August 25, 1944.

"Ssc. 8 (a) Any person inducted into the land or naval forces under this Act for training and -service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service under section 3 (b) shall be entitled to a certificate to that effect upon the completion of such period of training and service, which shall include a record of any special proficiency or merit attained....

"(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who

(1) receives such certificate, (2) is still qualified to perform the

duties of such position, and (3) makes application for reemploy- ment within forty days after he is relieved from such training and service-

if such position was in the employ of the United States Government, its Territories or possessions, or the District of Columbia, such person shall be restored to such position or to a position of like seniority, status, and pay;

if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unrea- sonable to do so; .

.

The forty-day period has been extended to ninety days. Section 8 (b) as amended in 1944, 58 Stat. 798, gives the veteran a right to be reemployed if he makes application "within ninety days after he is relieved from such training and service or from hospitalization contin- uing after discharge for a period of not more than one year."

FISHGOLD v. SULLIVAN CORP. 279 275

Opinion of the Court.

The corporation and Local 13 of the Industrial Union of Marine and Shipbuilding Workers of America had a collective bargaining agreement which provided: '

"Promotions and reclassifications and increases or decreases in the working force shall be based upon length of service and ability to do the job. Wherever between two or more men, ability is fairly equal, length of service shall be the controlling factor."

As work at the shipyard decreased, men would be laid off.

The men selected by the foremen, on the basis of ability and seniority, to be. laid off would report to a department head for reassignment on the basis of their relative sen- iority when work became available. On each of nine days in the spring of 1945 petitioner was laid off although other welders, not veterans of the recent war, possessing the same or similar skill as petitioner, were given work on those days. These men were preferred because they had a higher shop seniority than petitioner. The decision to lay off petitioner followed a decision of an arbitrator who ruled that the seniority provisions of the collective bar- gaining agreement, which we have quoted, required it and

"Any employee other than a probationary employee who is drafted or volunteers for the Naval, Military or Merchant Marine Service of the United States, shall retain his seniority standing.

In any further determination of said employee's seniority status, the length of time spent by the employee in such service shall count toward his seniority as if he were actually and continuously employed by the Company. Any such employee who volunteers or is drafted must give the Company notice of his intention to so leave his employment. Any such employee who, within forty

(40) days after his release or discharge from said service applies

for re-employment, shall be rehired by the Company, provided work is available and the employee is reasonably fit for duty.

Availability for work will be determined according to accumulated seniority and ability. If re-employed, said employee shall then receive the then current rate of pay for the job for which he is re-employed."

280

Opinion of the Court.

that they were not 'inconsistent, with the provisions'of the Selective Traiy4ng and Service Act of 1940.

Thereuponlpetitioner brought this suit, pursuant to § 8 (e)- of ,the Act, 3 to obtain a declaratory judgment as to his rights under the Act and to obtain compensation for the days he was not allowed to work. The corporation answered, justifying its action by the provisions of the collective bargaining agreement and the decision of the It arbitrator. The union was permitted .to intervene.' alleged in its answer that the action of the corporation was warranted by the provisioiis of the collective bargaining agreement and was not in violation of the Act. The Dis- trict Court ,refused the declaratory judgment requested,

"In case any. private employer fails or refuses to comply with the provisions, of subsection (b) or subsection (c), the district court of the United States for the district in which such private employer maintains a place of business shall have power, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, to specifically require such employer to comply with such provisions, and, as an incident thereto, to compensate such person for any loss of wages or benefits suffered by ieason of such employer's unlawful action..

The court shall order a speedy hearing in any such case and shall advance it on the calendar. Upon application to the United States district attorney or comparable official for :he district in which such private employer maintains a place of business, by any person claiming to be entitled to the benefits of such provi- sions, such United States district attorney or official, if reasonably .satisfied that the person so applying is entitled to such benefits, shall appear and act as attorney for such person in the' amicable .adjustment, of the claim or in the filing of any motioh, petition, or other appropriate pleading and the prosecution thereof to

Provided,'That no fees or dourt costs shall be taxed against the person so applying for such benefits,"

The United States appeared as amicus curiae in the Circuit Court of It appears in this Court as representative of petitioner by Appeals. reason of the provisions of § 8 (e).

4Permissive intervention is governed by Rule 24 (b) of the Rules of Civil Procedure which allows it on timely application "when an applicant's claim or defense and the main action have a question of law or fact in common."

FISHGOLD v. SULLIVAN CORP. 281 275

Opinion of the Court.

:but entered a money judgment for petitioner for the loss of wages during the nine days in question. 62 F. Supp. 25.

It held that petitioner was laid off in violation of the Act.

It was also of the view that the collective bargaining agree- ment was not inconsistent with the Act. Only the union appealed. The Circuit Court of Appeals reversed, one judge dissenting. 154 F 2d 785.

It held that the Act did not give petitioner the preference which he claimed and that the terms of the collective bargaining agreement j stifled the corporation's action. The case is here on a p tition for a writ of certiorari w1 '-h we granted because of the importance of the question p. .sented.

union had no appealable -interest in the judgment entered by the District Court and accordingly that the Circuit Court of Appeals lacked jurisdiction to entertain it.

It is pointed out that a money judgment was entered only against the corporation and that no relief was granted against the union.

It is therefore argued that the judg- ment did not affect any substantive right of the union and that at most the union had merely an interest in the out- come of litigation which might establish a precedent ad- verse to it. Boston Tow Boat Co. v. United States, 321

It is also pointed "out that the statutory guar- antee against discharge without cause for one year ' had

"Any person who is restored to a position in accordance with, the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of training and service in the land or naval forces, shall be so restored without loss of seniority, shall be entitled to partici- pate in insurance or other benefits offered by the employer pur- suant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer-at the time such person was inducted into such forces, and shall not be discharged from such position without. cause Within one year after such restoration."

Paragraphs (A) and (B) of subsection (b) of § 8 are set forth in note 1, supra.

Opinion of the Court.

expired at the time of the District Court's judgment, that therefore no declaratory relief was granted, and that peti- tioner's rights for the future were not adjudicated.

It is contended that the dispute between petitioner and the union has thus become moot.

But that argument misses the point. The answer of the corporation and the union put in issue the question whether there was a conflict between the collective bar- gaining agreement and the Act and, if so, which one pre- vailed. The parties to the collective bargaining agree- ment-the union and the corporation-were before the court. A decision on the merits of petitioner's claim necessarily involved a reconciliation between the Act and the collective bargaining agreement or, if it appeared that they conflicted, an adjudication that one superseded the other. As we have noted, the District Court was of the view that the collective bargaining agreement was not inconsistent with the Act. But, however the result might be rationalized, a decision for or against petitioner neces- sarily involved a construction of the collective bargaining agreement. That issue was adjudicated, with the union as a party. Hence, if the union had thereafter instituted a separate suit for an interpretation of the agreement, it would be met with the plea of res judicata. And that plea would be sustained, for the prior decision was on the pre- cise point which the union sought to relitigate and was adverse to the union. And both parties to the agree- ment-the union and the corporation-were parties to the prior suit. This elementary principle has long been recognized. Black, The Law of Judgments (2d ed.), pp.

764, 821, 936. As stated in Cromwell v. County of Sac, 94 U. S. 351, 352, a prior judgment "is a-finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter

FISHGOLD v. SULLIVAN CORP. 283 275

Opinion of the Court.

which might have been offered for that purpose." And see Rooker v. Fidetity Trutt Co., 263 U. S. 413, 415; Grubb

v. Public Utilities Commission, 281 U. S. 470, 479; Stoll

v. Gottlieb, 305 U. S. 165; Chicot County Drainage Dist.

v. Baxter State Bank, 308 U. S. 371, 375, 378. The case

of Boston Tow Boat Co. v. United States, supra, would be relevant if the collective bargaining agreement in issue was one between different parties.' Then the union's interest would be merely the interest of one seeking re- versal of an adverse precedent. And its "independent right to relief" would not be increased by reason of its intervention in the cause. Alexander Sprunt & Son v.

United States, 281 U. S. 249, 255. But here the rights of the union and its members under a contract with the cor- poration were adjudicated in a proceeding in which the union was a party. The contract was still in existence at the time of the appeal. Hence the case was not moot.

And the only way the union could protect itself against that binding interpretation of the agreement was by an appeal. For then the union found itself in the position where a right of its own (Alexander Sprunt & Son v. United States, supra, p. 255) was adjudicated.!

It is suggested, however, that the result of what we do is to free the union and the employer from costs and burden Fishgold with them. There are several answers to that. The allowance of costs has no bearing on what

6 In that case Boston Tow Boat Co. intervened in a proceeding be- fore the Interstate Commerce Commission involving the status of another carrier. It sought to appeal from the adverse decision against the other carrier. That right was denied. The order in question was not determinative of the status of Boston Tow Boat Co. That ques- tion was involved in another rrder of tiie Commission from which' Boston Tow Boat Co. had an appea' pending.

7 The case is therefore closely analogous to one where the interest of an intervenor in property involved in the litigation was adjudicated.

Dexter Horton National Bank v. Hawkins, 190 F. 924; United States

v. Northwestern Development Co., 203 F. 960.

Opinion of the Court.

is or what is not res judicata. Their allowance to the pre- vailing party is not, moreover, a rigid rule. Under the Rules of Civil Procedure the court can direct otherwise. in Rule 54 (d). And finally, Congress has provided § 8 (e) of this Act that when a veteran applies to the Dis- trict Court for the benefits of the Act "no fees or court costs shall be taxed" against him.

to protect the veteran in several ways. He who was called to the colors was not to be penalized on his return by reason of his absence from his civilian job., He was, more- over, to gain by his service for his country an advantage which thi law withheld from those who stayed behind.

These guarantees are contained in § 8 of the Act 8 and extend to a veteran, honorably discharged and still quali-

(1) He has

'fied to perform the duties of his old position. a stated perict of time in which to apply for reemploy- ment.' § 8 (b). He is not pressed for a decision imme- diately on his discharge but hhs the opportunity to make' plans for the future and readjust himself to civilian life.

(2) He must be restored to his former position "or to a

§ 8 (b) (A), position of like seniority, status, and pay." (B). He is thus protected against receiving a job inferior to that which he had before entering the armed services.

(3) He shall be "restored without loss of seniority" and

be considered "as having been on furlough or leave of absence" during the period of his service for his country, with all of the insurance and other benefits accruing to employees on furlough or leave of absence. § 8 (c).

Thus he does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise

Section 8 (b) is set forth :n note 1, supra, and § 8 (c) in note 5, supra.

9 As we have noted, the original forty-day period has been extended to ninety days. See note 1, supra.

FISHGOLD v. SULLIVAN CORP. 275

Opinion of the Court.

point he would have occupied had he kept his position continuously during the war.

(4) He "shall not be dis-

charged from such position without cause within one year § 8 (c). after such restoration."

Petitioner's case ,comes down to the meaning of this guarantee against "discharge."

"Discharge" is construed, by him to include. "lay-off." And it is earnestly argued that Congress could not have intended to restore the vet- eran to his position, prevent his discharge without cause for one year, and yet not intend that he perform actual work if it was available.

This legislation is to be liberally Construed for the bene- fit of those who left private life to serve their country in its hour of great need. See Boone v. Lightner, 319 U. S.

561, 575. And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits whiclh Congress has secured the vet- eran under the Act. Our problem is to construe-the.sepa- rate 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 provi- sions permits.

We can find no support for petitioner's position in the provision of § 8 (b) which restores him to his former posi- tion or to a "position of like seniority." Nor can we find it in § 8 (c) which directs that he "shall be so restored without loss of seniority." As we have said, these provi- sions guarantee the veteran against loss of position or loss of seniority by reason of his absence. He acquires not only the same seniority he had; his service in the armed services is counted ag service in the plant so that he does not lose ground by reason of his absence. But we would distort the language of these provisions if we read it as granting the veteran an increase in seniority over what he would have had if he had never entered the armed serv-

286

Opinion of the Court.

ices. We agree with the Circuit Court of Appeals that by these provisions Congress made. the restoration ias nearly a complete substitute for the original job as was possible. No step-up or gain in priority can be fairly implied. Congress protected the veteran against loss of ground or demotion on his return. The provisions for restoration without loss of seniority to his old position or to a position of like seniority mean no more.

Nor can we read into the guarantee against discharge "from such position" a gain or step-up in seniority. That guarantee does not in terms deal with the seniority prob- lem. The problem of seniority is covered by the preced- ing provisions. The, guarantee against discharge "from such position" is broad enough to cover demotions. The veteran is entitled to be restored to his old position or to If within a "position of like seniority, status, and pay." the statutory period he is demoted, his status, which the Act was designed to protect, has been affected and the old employment relationship has been changed. He would then lose his old position and acquire an inferior one. He would within the meaning of § 8 (c) be "discharged from such position." But the guarantee against discharge does not on its face suggest the grant of a preference to the veteran over and above that which was accorded by the seniority of "such position."

Discharge normally means termination of the employ- ment relationship or loss of a position."

In common par- lance and in industrial 'parlance a person who has been laid off by operation of a seniority system and put on a waiting list for reassignment would hardly be considered

10 "Release or dismissal from an office, employment, etc.; as, the discharge of a workman." Webster's New International Dictionary (2d ed.).

"To relieve of a charge or office; (more usually) to dismiss from of- fice, service, or employment; to cashier." Oxford English Dictionary.

FISHGOLD v. SULLIVAN CORP. 275

Opinion of the Court.

as -having been "discharged." " There are three terms used in § 8 (c) which relate to various types of cessation of work-a "furlough," a "leave of absence" and a dis- charge. A furlough is not corisidered 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 termina- tion of the employment relationship. Section 8 (c) of the Act recognizes that insurance and other benefits may continue to accrue to an employee on furlough or on leave of absence. An employee on furlough or on leave of ab- sence has a continuing relationship with the employer; he retains a right to be restored to work under specified conditions.12 Thus when Congress desired to cover the contingency of a lay-off, it used apt words to describe it.

If it had desired to enact that, so long as there was work, no restored veteran, regardless of seniority, could be tem- porarily laid off during the year following his restoration, when the slackening of work required a reduction in forces, we are bound to believe that it would have used a word of the kind which it had itself recognized as being descriptive of that situation.

The "position" to which the veteran is restored is the "position" which he left plus'cumulated seniority. Cer- tainly he would not have been discharged from such po-

u Temporary suspension of an employee's work commonly does not affect the continuance of his status. See Labor Board v. Waterman

S. S. Co., 309 U. S. 206; North Whittier Heights Citrus Assn. v. Labor

Board, 109 F. 2d 76, 82.

"Lay-off" is defined as "A period during which a workman is tem- porarily dismissed or allowed to leave his work; that part or season of the year during which activity in a particular business or game is partly or completely suspended; an off-season." Oxford English Dictionary, Supp.

12 See Union Agreement Provisions, Bureau of Labor Statistics, De- partment of Labor, H. Doc. No. 723, 77th Cong., 2d Sess., chs. 8, 14.

Opinion of the Court.

sition and unable to get it back, if at the time of his induction into the armed services he had been laid off by operation of a seniority system. Plainly he still had his "position" when he was inducted. And in the same sense he retains it though a lay-off interrupts the continuity of work in the statutory-period. Moreover, a veteran on-his return is entitled to his old "position" or its equivalent even though at the time of his application the plant is closed down, say for retooling, and no work is available, unless of course the private employer's "circumstances have so changed as to make it impossible or unreasonable" to restore him. § 8 (b) (B). He is entitled to be recalled to work in accordance with his seniority. His "position" exists though no work is then available. The slackeping of work which causes him to be laid off by operation of a seniority system is neither a removal or dismissal or dis- charge from the "position" in any normal sense. Congress recognized in the Act the existence of seniority systems and seniority rights.

It sought to preserve the vet- eran's rights under those systems and to protect him against loss under them by reason of his absence. There is indeed no suggestion that Congress sought to sweep aside the seniority system. What it undertook to do was -to give the.veteran protectiow within the framework of the seniority system plus a guarantee against demotion or termination of the employment relationship without cause for a year.

The construction which we have given "discharged" does not rob that guarantee of Vitality. As the Circuit Court of Appeals observed, where there is a closed-shop agreement the union would normally afford its members protection against termination of their employment status without cause. But in many situations the guarantee against dismissal without cause for one year is of great

FISHGOLD v. SULLIVAN CORP. 289 275

Opinion of the Court.

practical importance and is a protection granted veterans only.

Our construction of the Act finds support in its legisla- tive history. Representative May had charge of the bill on the floor of the House. He explained an amendment to § 8 (c), which added the words "shall be considered during the period of service in such forces as on furlough or leave of absence" and also elaborated the clause dealing

"I may say that the chief purpose of the amend- ment i$ to preserve the seniority rights of the thou- sands and hundreds of thousands of railroad em- ployees and other employees of that character who in have certain seniority privileges on the railroads. other words, we put them on furlough during the time they are in the service and they will even be permitted to count this time on the question of their retire- ment." 86 Cong. Rec. 11702.

And before that amendment the Committee Report of the

"The Congress, in this bill, has declared as its purpose and intent that every man who leaves his job, to par- ticipate in this training and service should be reem- ployed without loss of seniority or other benefits upon his return to civil life." S. Rep. No. 2002,76th Cong., 3d Sess., p. 8.

We have searched the legislative history in vain for any statement of purpose that the protection accorded the veteran was the right to work when by operation of the seniority system there was none then available for him.

It is said, however, that when Congress amended § 8 of the Act in 1944 13 (58 Stat. 798) and extended the Act in 1945 without any change in § 8 (c) (59 Stat. 166), it was apprised of an administrative interpretation of § 8 (c) that

1- See note 1, supra.

Opinion of the Court.

a veteran was entitled to his former job regardless of seniority; and that therefore congressional approval of or acquiescence in the administrative construction would be inferred. See Massachusetts Mutual Life Ins. Co. v.

United States, 288 U. S. 269, 273, and cases cited. An administrative interpretation was rendered by the Direc- tor of Selective Service who was authorized to administer the Act.14 .He had ruled that the Act required reinstate- ment of a veteran to "his former position or one of like seniority, status, and pay even though such reinstatement necessitates the discharge of a nonveteran with a greater seniority." 15 But a different construction was given to § 8 (c) by the National War Labor Board in its handling of disputes arising out of the negotiation of collective bar- gaining agreements.'" The Board read the Act as we read it. The ruling of the Director may be resorted to for guidance. See Skidmore v. Swift & Co., 323 U. S. 134, 140; Mabee v. White Plains Pub. Co., 327 U. S. 178. But his rulings are not made in adversary proceedings and are not entitled to the weight which is accorded interpreta- tions by administrative agencies entrusted with the re- sponsibility of making inter partes decisions. Skidmore

v. Swift & Co., supra, p. 139. The history and language

of the Act would need be far less clear for us to give his rulings persuasive weight. Moreover, as the Circuit Court of Appeals pointed out, the contrariety of admin- istrative rulings" lends less credence to the contention that Congress by the amendment in 1944 and the extension in 1945 showed a preference for one over the other.

In view of the language of the Act and the nature of the "1 Executive Order 8545, September 23, 1940, 5 Fed. Reg. 3779.

'5 Local Board Memorandum 190-A, May 20,1944, Part IV, § 1 (C).

16 See ScoviU Mfg. Co., 21 War Labor Rep. 200,1201, 202.

"See Note 54 Yale L. Journ. 417.

FISHGOLD v. SULLIVAN CORP. 275

BLACK, J., dissenting.

administrative findings, we would want explicit indication by Congress that it chose the Director's interpretation before we concluded that Congress had adopted it.

Affirmed.

MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

MR. JUSTICE BLACK, dissenting.

I believe we should reverse the judgment of the Circuit Court of Appeals and remand the cause to it with direc- tions to dismiss the appeal for want of jurisdiction because the Union was not a proper party to appeal. The money judgment was in favor of Fishgold and against the Sulli- van Dry Dock and Repair Company. Had the Company paid the judgment, I see no way in which the Union would have been "aggrieved."

'The only reason advanced by the Court for holding that the Union was "aggrieved" is that, had the District Court judgment remained on the books, the judicially formulated doctrine of res judicata would have barred the Union in any future proceedings from challenging the District Court's application of the federal statute to the particular collective bargaining agreement. A fair application of res judicata bars a Party in a second litigation only if that proceeding involves the same issues as the first litigation between the same adverse parties or privies. This means that res judicata could bar the Union only in a new proceeding between it and Fish- gold or his privies. But there is no possibility of such litigation sihce the seniority right which the District Court held Fishgold had tinder the statute had under its provi- sions expired by the time the Union appealed. Res judicata would not have barred the Union in a proceeding between it and any other party, since no other party was

BLAcx, S., disenting.

a party adverse to the Union in the present suit. And this includes any possible proceeding between the Union and the Sullivan Dry Dock Company since that Company, though a party, was not an adverse party in the trial court.

None of the cases cited by the Court's opinion support the proposition that a-party is bound in a future litigation against a party that was not an adverse party, but on the same side, in the earlier litigation. Nor do these cases, or any other decision of this Court of which I am aware, for- mulate as the rule of this Court the harsh doctrine of col- lateral estoppel, adopted in a few state jurisdictions, which always bars a losing party, so long as the issue is the same, even though the later litigation involves different adverse It is unlikely that this harsh doctrine, never parties. adopted by this Court, would in the future have been, applied to bar the Union in any further proceedings in- volving interpretation of the scope of its collective bar- gaining agreement in the light of the federal statute.

In my opinion the Union would not have been barred by the trial court's judgment. It was therefore not an aggrieved party and not entitled to appeal.

The result of permitting parties not adversely affected to appeal a judgment is to impose burdens upon litigants actually interested when those litigants may themselves be fully satisfied with the judgment. The scope of res judicata should not be extended to produce such a result.

This case illustrates the wisdom of the practice which permits parties to settle their own lawsuits without inter- vention by others interested only in precedents. Bo8ton Tow Boat Co. v. United State8, 321 U. S. 632.