Shand v. California Employment Stabilization Commission

NOURSE, P. J.

These are appeals from judgments ordering issuance of peremptory writs of mandate in proceedings to review final administrative decisions of the California Unemployment Insurance Appeals Board, herein further called the Board, denying the petitions of Robert Shand for payment of unemployment benefits and of Janice Melver for payment of disability benefits. Both petitioners, employees of the Oakland Post-Inquirer, a newspaper operated by Hearst Publishing Company, Inc., were discharged' when that newspaper closed on September 1, 1950. Pursuant to a collective bargaining agreement each received a lump sum payment comprising two weeks’ pay in lieu of notice, a number of weeks’ dismissal pay and a number of days’ vacation pay. The question presented in each case was in how far the payments received rendered the employees ineligible for the benefits they claimed. It was conceded that the two weeks in lieu of notice payment had that effect for the period from September 1 to September 15, 1950. The Board decided that also the payments for dismissal pay and vacation pay rendered the claimants not unemployed during a further period corresponding with the number of weeks and days for which they received such pay. In the mandamus proceedings the superior court held this to be correct as to the vacation pay, but incorrect as to the dismissal pay. Hearst Publishing Company and the administrative bodies and officials made respondents appealed from the judgments insofar as concerned with dismissal pay, the petitioners from the judgments insofar as concerned with vacation pay. The Shand and Melver cases were consolidated for purposes of appeal. The appeals as to the dismissal pay

[56]

were dismissed at the request of all appellants concerned. The appeals now before the court relate to the vacation pay only.

The decision of the superior court in this respect is correct. At the time it was given the question was of first impression in California, but since then it has been decided in the same manner in

Jones

v.

California Emp. Stab. Com.,

120 Cal.App.2d 770 [262 P.2d 91]. Section 9.2 of the California Unemployment Insurance Act (3 Deering’s Gen. Laws, Act 8780d) provides that “An individual shall be deemed ‘unemployed’ in any week during which he performed no services and