The opinion
CHASE, Circuit Judge
(dissenting).
I cannot believe that § 8(b) and (c) of the Selective Service Act as amended, 50 U.S.C.A.Appendix § 308(b, c), has been given the effect intended by Congress. It has been construed to mean that an honorably discharged veteran is entitled upon timely application to be restored to his old job, such a job having, as here, continued to exist, and to keep it for a year unless discharged for cause only if his employer has not by contract with a third party otherwise agreed. That seems to be too narrow a construction to put upon a remedial statute which ought to be interpreted liberally in favor of the veterans for whose benefit it was enacted. See Boone v. Lightner, 319 U.S. 561, 575 , 63 S.Ct. 1223 , 87 L.Ed. 1587 .
There is no real controversy between the appellee and his employer who took no appeal and who had previously restored to the veteran the position he had formerly held; had kept him continuously at work in it for about seven months; and would presumably have continued so to do for at least a year but for action by the intervening union. The latter which is the sole appellant insisted that it had the contractual right to have the veteran displaced whenever necessary to make room for a non-veteran union member who had been employed about a month and a half before the plaintiff had originally been hired and the employer yielded to this demand. The ability of the plaintiff to do the work is unquestioned and it is not even intimated that he gave any cause for discharge.
Thus the clear cut issue is whether Congress intended by this statute to make sure that those who were required by it to terminate their non-temporary employment and serve in the armed forces should also be entitled by it to resume their former employment, or the equivalent, and keep that for a year after their honorable discharge from service, provided they were *792 and continued to be able and willing to fill the position satisfactorily; or whether Congress merely left this appellee and others like him with nothing but the right to have their time in the armed forces counted as time worked for their old employers as they competed with others not displaced by the statute, for their old jobs, or ones as good, according to whatever standards of competition their employers and some third party by contract saw fit to impose upon them. And if the correct construction of the statute be that Congress intended to let returned veterans try to readjust themselves as best they might with only an unimpaired “seniority status,” and not, when there were such jobs, an actual job with actual pay on which they could live at least for a year, I must say with all deference, that words were used which have virtually to be read out of the statute so to restrict its meaning.
Congress first provided in § 8(b) (A) and (B) of the statute for the kind of positions honorably discharged veterans should get. They should be restored (1) to their former positions. In providing for that seniority was not even mentioned. Then (2) in the alternative to give the equivalent to men whose former positions were non-existent, it was provided that the veteran be given a position “of like seniority, status, and pay.” The words just quoted are those defining not some relative “position” in a figurative line of men available for work but a position in which the veteran could actually work. The words “a position of like seniority, status, and pay” are but the equivalent in their setting of “a job just as good with equal pay.” Moreover, the definition of the alternative position plays no proper part in this case anyway since the appellee was restored to his old position and I mention it only because it seems to have been relied on as some justification for construing § 8(c) as the majority has done. It is there that the decisive provision is found.
After having made it plain in § 8(b) that the veteran should get his old job back or be offered one as good, Congress next in § 8(c) made equally clear in plain language that certain privileges went with the job. They are of two kinds. The first is that the position carries with it the right of the former employee thus re-employed to be treated as though he had been “on furlough or leave of absence during his period of training and service in the land or naval forces” and accordingly he shall suffer no “loss of seniority, (and) 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 with the employer at the time such person was inducted into such forces. * * * ” Thus far the returned veteran is given but the-status of an employee who has been furloughed or given a leave of absence without actual termination of employment and I agree that his insurance or other like beneficial status is to be determined under the rules and regulations applicable thereto when he was inducted and that for this purpose the statute requires it to be done on the basis of no loss of his seniority while away. Yet only in that respect was seniority made to count and then only negatively in that no loss should be suffered by any relative diminution of it because of absence. Then Congress, not content to provide that much and no more, in § 8(c), also gave the veteran another and different kind of privilege which was not made dependent in any way upon his seniority status as an employee- or upon his rights as such an employee on furlough or on leave of absence. It is an-added and independent right conferred in clear and plain words which people who-want to express their thought unmistakably customarily use. They are "and shall not be discharged from such position without-cause within one year after such restoration.” Unless these words mean that alter-an honorably discharged veteran has been-given the position to which he is entitled', under the statute he may keep at work in-it for a year provided there is such work-to be done and he gives no cause for his; discharge, I submit they mean nothing.
Congress was here prohibiting not merely discharge from employment but discharge from “such position.” It did not' leave the employer free, to “lay-off” the reemployed veteran at will, or shift him from one position to another not as good, or otherwise deprive him of the particular kind of work and pay to which he had' been “restored.” It gave the veteran a-year of security in this position before he could be ousted from it simply because-someone had a contract with the employer which, but for the statute, gave him a>. senior right to it. To deny the veteran the-right to work in that position during the year is a “discharge” from it for the pe *793 riod of his deprivation and calling such action a “lay-off” or anything else one may choose for a name neither alters the fact nor justifies the action. Such a choice of labels is simply what should be recognized as a futile attempt to circumvent the statute.
Moreover, if this to me seemingly plain and simple language may fairly be said to have had at first some ambiguity lurking in it, the interpretation of it by the Director of Selective Service should be enough to clear that up for present purposes. It was made by the Director in performing the duties the statute required him to perform and though not of course binding upon the courts it is entitled to the same respect that is now customarily given like interpretations of statutes by other administrative officers acting in the performance of their duty. That interpretation alone would be most persuasive for it was at least a reasonable one. Skidmore v. Swift & Co., 323 U.S. 134 , 65 S.Ct. 161 ; Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 , 62 S.Ct. 1216 , 86 L.Ed. 1682 ; Great Northern R. Co. v. United States, 315 U.S. 262 , 62 S.Ct. 529 , 86 L.Ed. 836 ; Baze v. Scott, 10 Cir., 106 F.2d 365 . But it doesn’t stand alone. After it was well and widely known that it had been made, Congress by the re-enactment of § 8(c) without change gave potent evidence in addition to the words themselves that it meant what it said in § 8(c) when it said that “Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) * * * shall not be discharged from such position without cause within one year after such restoration.” See United States v. Midwest Oil Co., 236 U.S. 459 , 35 S.Ct. 309 , 59 L.Ed. 673 ; McCaughn v. Hershey Choc. Co., 283 U.S. 488 , 51 S.Ct. 210 , 75 L.Ed. 1183 ; National Lead Co. v. United States, 252 U.S. 140 , 40 S.Ct. 237 , 64 L.Ed. 496 ; Massachusetts Mut. Life Ins. Co. v. United States, 288 U.S. 269 , 53 S.Ct. 337 , 77 L.Ed. 739 .
Undoubtedly Congress could by statute override private contracts between employers and employees or those acting for them. It did so when under the Selective Service Act men holding positions of employment were inducted. It could, as it did, displace others later whenever necessary to make room for veterans qualified for and seeking their old positions.
And finally Congress passed this statute for the benefit alike of all honorably discharged veterans who had been taken from employment more stable than what is called temporary. There is no discernible purpose not to treat them all the same and no good reason why Congress should not have intended to make a man who was inducted from a closed shop as secure in his job during the first year after his return as a man inducted from an open shop would be. One as much as the other would need this adjustment period before facing the full brunt of competition for his job. I think Congress has by word and act well demonstrated its purpose to provide for equality of treatment in this respect regardless of private contracts made by any employer with anybody.
I dissent.