40 Opinion of the Court. member of the union, namely, in bringing this suit without exhausting the remedies provided by its constitution and by-laws; in thereby violating the collective agreement; in negotiating with the employer through others than the union; and in conducting himself in a manner harmful to its interests and those of its members. Accordingly, on April 15, 1946, the union requested Trailmobile to suspend Whirls from work. In consequence, the company directed him not to report for duty. Since then, however, it has continued to keep him on the payroll, on leave of absence with full pay. Although the Government urges that Whirls thus continues in the company's employ and consequently the case is not moot, its suggestion of the facts has overlaid the only issue brought here by the petition for certiorari with questions of unlawful discrimination allegedly arising out of the suggested facts, under the decisions in Steele v. Louisville & Nashville R. Co., 323 U. S. 192; Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U. S. 210; and Wallace Corp. v. National Labor Relations Board, 323 U. S. 248.16 The facts thus put forward have no proper bearing in this case otherwise than to suggest the question of mootness and to require that any decision which is made upon the merits here be made without prejudice to the future assertion of any rights of respondent which may have been violated by the conduct set forth. We agree that in the circumstances related he remains an employee of the company and the cause is not moot. 16 The Government's brief puts the suggestion and discussion it makes as a matter of not desiring its "failure to explore the nature and causes" of the alleged discrimination to be taken "as an admission either" that there was not unfair discrimination under the Steele, Tunstall and Wallace cases, supra; or that such discrimination "cannot be redressed under Section 8 . . . after the lapse of the initial year of reemployment. . . .” Opinion of the Court. 331 U. S. We also agree that the question of unlawful discrimination is not properly before us for decision." That question, insofar as it arose from events prior to this litigation, was involved in the Ohio class suit without reference, it would seem, to § 8 or its possible effects. And because the petition for certiorari, as we have noted, assigned no error to the Court of Appeals' ruling on the issue of res judicata arising from the outcome of the class suit, we are not at liberty now to consider the effect of that litigation or the issues of discrimination embraced in it. Insofar as any question of unlawful discrimination may be thought to arise from the facts said to have taken place after the decision of the Circuit Court of Appeals, we are also not free at this time to consider or determine such an issue. As the brief of the Government in respondent's behalf pertinently states, "These points were not raised on respondent's behalf in the lower courts, and no evidence was introduced by any party on the issue of unfair discrimination. Cf. Hormel v. Helvering, 312 U. S. 552, 556. In view of that fact, and of the Hess litigation, we believe that it would be inappropriate, at this stage, to argue these issues." Wholly aside from any question of power, this disclaimer on behalf of the party affected is a sufficient reason to justify refusal to inject such an issue here or to volunteer aid not sought. We therefore are required to say no more concerning the matter now than that, if respondent has been unlawfully expelled, suspended or otherwise dealt with by the union for asserting his legal rights, the law has provided remedies for such injuries and they may be redressed in appropriate proceedings designed for that purpose upon proof of the facts constituting the wrong and due consideration of the legal issues they present. To assure this possibility, however, the remand which be 17 See note 16. 40 Opinion of the Court. comes necessary in this cause on the merits will be so framed as to preclude any foreclosure of such rights by possible future application of the doctrine of res judicata arising from this determination. Since, moreover, in the view of the District Court and apparently of the Court of Appeals, the Ohio class suit was dispositive of issues of unlawful discrimination arising out of the facts presented in that litigation without reference to § 8,18 it may be added that the Ohio determination could not apply, of course, to such discrimination taking place by virtue of later events. We turn therefore to consideration of the sole question presented on the merits, namely, whether under § 8 the veteran's right to statutory seniority extends indefinitely beyond the expiration of the first year of his reemployment, being unaffected by that event as long as the employment itself continues. II. The relevant portions of §§ 8 (a) and 8 (b) are set out in the margin.19 But we are concerned particularly with § 8 (c), which reads: "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 18 The Court of Appeals, noting that Whirls was not named as a party to the class suit other than as a member of the class, pointed out that numerous members of the armed forces were involved in both groups of employees, but that their interests as veterans under § 8 were not common to the nonveteran employees in either group. Hence, it concluded, the class suit was not appropriate for rendering a judgment binding upon veteran members of the complaining class as to the question of their seniority under § 8. 154 F. 2d 866, 872. 19 "SEC. 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 Opinion of the Court. 331 U.S. 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 participate in insurance or other benefits offered by the employer pursuant 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.” The Government argues on respondent's behalf that the correct meaning of § 8, and particularly of subsection (c), is that upon reemployment the veteran is entitled to retain indefinitely his prewar plus service-accumulated seniority.20 Under the statute, it says, this seniority can 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 reemployment within forty days after he is relieved from such training and service "(A) 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; "(B) 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 unreasonable to do so; . . . ." 20 The Government states that a veteran could be reduced in seniority on account of bona fide changed circumstances or on account of cause or upon waiver. As to this, see note 25. 40 Opinion of the Court. not be taken away by a collective bargaining agreement or by the employer," either during the year in which the statute insures the veteran against discharge without cause or thereafter while the employment continues.22 Support for this view is thought to be derived from the syntax of the statutory language and from the legislative history. It is argued that grammatically the "within one year" provision applies only to the last clause of subsection (c), relating to discharge without cause, and does not refer to the "other rights" 23 given by subsections (b) and (c), including restored statutory seniority. Because the "within one year" provision appears most proximately in connection with the prohibition against discharge, the Government seeks to give that prohibition, including its temporal term, effect as a command wholly distinct from . 21 Seniority arises only out of contract or statute. An employee has "no inherent right to seniority in service. Ryan v. New York Central R. R., 267 Mich. 202, 208; Casey v. Brotherhood, 197 Minn. 189, 191-192. "The seniority principle is confined almost exclusively to unionized industry." Decisions (1946) 46 Col. L. Rev. 1030, 1031, and authorities cited. "In private employment seniority is typically created and delimited by a collective bargaining agreement . . . ." Ibid. 22 See note 20. 23 The Government's argument is limited to seniority. But it is equally applicable to the other components of "position," such as pay. Thus, if accepted, it would mean that after the guaranteed one year a veteran could be discharged but could not have his pay reduced. The position to which an employee must be restored is either the position previously held or "a position of like seniority, status, and pay." See note 18. It is thus recognized that part of the restored "position" is the seniority accrued prior to service in the armed forces and, under the Fishgold case, during service. "Seniority" is part of "position," and therefore when the Act states in subsection (c) that the veteran may not be discharged "from such position" it means both from the job itself and from the seniority which is part of the job. |