LILLIE, J. This proceeding in mandamus to compel removal of charges against an employer’s unemployment reserve fund is before us on appeal by the California Unemployment Insurance Appeals Board from a judgment of the superior court declaring claimants to be ineligible for unemployment compensation benefits. The judgment set aside a decision of the board upholding their eligibility, and ordered any charges against respondent’s account as the result of payment of [685]unemployment benefits to be removed. We conclude on the record before us that by reason of the construction and application of section 1262, Unemployment Insurance Code, by the Supreme and appellate courts of this state, claimants are entitled to benefits, and the judgment should be reversed.
The superior court reviewed the administrative record and made and filed its independent findings and conclusions of law (Chrysler Corp. v. California Emp. Stab. Com., 116 Cal.App.2d 8 [253 P.2d 68]); they are at complete variance with the administrative findings and determination, but the basic material facts are undisputed and the question is primarily one at law. The claimants, 81 in all, are employed as office and clerical workers and engineers in the Los Angeles plant of respondent, Chrysler Corporation. Union workers at this plant are divided into three separate and distinct bargaining units—the 1. office and clerical workers, 2. engineers and 3. production and maintenance workers, all of which comprise Local 230. The International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (hereinafter referred to as UAW), an affiliate of the Congress of Industrial Organizations (CIO), organized Local 230 as an “amalgamated local” consisting of the three separate bargaining units above named; the bulk of its membership consists of production and maintenance workers since there are relatively few office and clerical workers and engineers. In other areas of the country where there are enough to warrant it, the office and clerical workers have their own local, as do the engineers. Each unit of Local 230 had entered into a separate bargaining agreement with Chrysler; thus, during the period in question, three separate agreements covering labor relations of its 1. engineers, 2. office and clerical workers, and, 3. production and maintenance workers, existed with Chrysler.
The “engineers’ ” contract and the “office and clerical workers’ ” contract each contained a specific provision (§5), in effect, prohibiting them from striking against Chrysler; thus, under their contracts neither the engineers nor office and clerical workers had any right to strike. The “production and maintenance workers’ ” contract, however, made an exception (§31(2)) permitting them to strike in connection with rates of production (§§46-48); thus, thereunder, the production and maintenance workers had the right to strike over this limited matter. The contracts of the office and eler[686]ical workers and engineers contained no provision relative to rates of production.
A dispute arose between Chrysler and the production and maintenance workers over the “Bates of Production” provisions of their contract. In March 1957, on recommendation of the executive board of Local 230 consisting primarily of officers of the union, a strike vote was taken by the production and maintenance workers; none of the office and clerical workers or engineers were entitled to vote in this connection and none did so, although as a group they did voice their disapproval of the strike and voted not to participate therein. They had no economic or other grievance with Chrysler. On March 15, pursuant to approval of the International Union, union officials called a strike of the production and maintenance workers; they immediately left their jobs. The strike ended April 21, 1957, after a settlement, the terms of which related to matters affecting only the production and maintenance workers. The office and clerical workers and engineers did not strike at any time, nor did they in any way participate in the strike or picket line; on the contrary, on March 15, when the strike commenced, they crossed the union picket line, remained at their jobs and continued to perform all work available to them. However, the strike forced Chrysler to shut down its production line, soon after ending the flow of work for its office and clerical workers and engineers. They continued to work until around March 22, when thereafter, to April 15, at various times they were laid off by Chrysler because it had no work for them. During the course of the strike, the production and maintenance workers received strike benefits from the union’s general strike fund; the office and clerical workers and engineers received nothing from the strike fund but applied for and received unemployment compensation benefits, the subject of the within litigation.
The basic question is whether Chrysler’s unemployment reserve account should be charged as the result of benefits paid to the office and clerical workers and engineers—the issue turns on whether they are eligible therefor under section 1262, Unemployment Insurance Code. Appellant contends that they did not voluntarily leave their work because of a trade dispute; respondent argues that they left voluntarily in that their unemployment was caused by a trade dispute initiated by their own union.
Section 1262 provides that “An individual is not eligible [687]for unemployment compensation benefits, and no such benefit shall be payable to him, if he left his work because of a trade dispute ...” This section has been consistently interpreted in accord with “the obvious legislative intent that persons who are involuntarily and innocently out of work as the result of a labor dispute should not suffer by loss of unemployment benefits. Accordingly the right to benefits under section 56 of the statute was said to depend upon whether the worker left his job of his own free will or was forced to do so because of the acts of others.” (McKinley v. California Emp. Stab. Com., 34 Cal.2d 239, 242 [209 P.2d 602] ; Bodinson Mfg. Co. v. California Emp. Com., 17 Cal.2d 321 [109 P.2d 935] ; Bunny’s Waffle Shop, Inc. v. California Emp. Com., 24 Cal.2d 735 [151 P.2d 234] ; Gardner v. State, 53 Cal.2d 23 [346 P.2d 193]; Chrysler Corp. v. California Emp. Stab. Com., 116 Cal. App.2d 8 [253 P.2d 68].) The “volitional test” was first established by the Supreme Court in Bodinson Mfg. Co. v. California Emp. Com., 17 Cal.2d 321 [109 P.2d 935], Therein the court held that members of one union who became unemployed solely because they refused, by reason of union principles, to pass a peaceful picket line of another union at their place of employment, were not entitled to unemployment benefits; that having exercised their free choice not to work in a plant where their fellow members were on strike, their resulting unemployment was voluntary.
To carry out the intent of the Legislature, the courts in a given case inquire into the economic realities of the circumstances resulting in unemployment to determine whether there was any personal responsibility on the part of the claimant for his unemployment, or whether he was compelled to leave his work because of the acts of others. (Bodinson Mfg. Co. v. California Emp. Com., 17 Cal.2d 321 [109 P.2d 935]; Bunny's Waffle Shop, Inc. v. California Emp. Com., 24 Cal.2d 735 [151 P.2d 234]; Matson Terminals, Inc. v. California Emp. Com., 24 Cal.2d 695 [151 P.2d 202]; Chrysler Corp. v. California Emp. Stab. Com., 116 Cal.App.2d 8 [253 P.2d 68].) “The volitional test itself is based upon a just analysis of a substantial subjective element and it cannot properly be extended or perverted by insistence upon mere form.” (McKinley v. California Emp. Stab. Com., 34 Cal.2d 239, 245 [209 P.2d 602].)
Certain compelling factors leading to the unemployment of the office and clerical workers and engineers point [688]up the absence of any voluntary act or conduct therefor on their part under section 1262, unless it can be said that mere membership in the union is sufficient to render them personally responsible for the acts of their union officials in authorizing the strike of the production and maintenance workers. And this is exactly the claim respondent makes here, arguing that in joining the UAW, the office and clerical workers and engineers submitted themselves to the by-laws and International Constitution which designated Local 230 and the union as their exclusive collective bargaining agents, making them personally responsible for their acts authorizing the strike of the production and maintenance workers against their common employer; and that it was reasonably foreseeable by them that they would ultimately be laid off in consequence of such a strike. This argument is predicated on the claim that the office and clerical workers and engineers voluntarily joined the union and Local 230, and on certain facts relating to their union membership—they took the same oath as the production and maintenance workers, paid the same dues, part of which went into a general strike fund of the International Union, had a right to participate in the election of, and were governed by, common union officials, and became subject to the same by-laws and International Constitution which designated the local and the International Union as their exclusive bargaining agents.
In the light of the established principle that innocent victims of a trade dispute should not suffer loss of their unemployment insurance rights, and the prevailing unusual factual situation, we believe there must be something more than mere membership in the union authorizing the strike against their common employer, to make the nonstriking members personally responsible for the same, such as—their voluntary joint activity, concert of action of the strikers and nonstrikers, an identity of interest in the dispute or strike, or union strategy ultimately resulting in the unemployment of nonstriking members.
It is true, as urged by respondent that each office and clerical worker and engineer, exercising his fundamental right to work, did voluntarily seek and accept employment with Chrysler. However, unlike the employee, who of his own volition enters into membership in a union because he feels that his best financial interests will be served thereby, the office and clerical workers and engineers had no free choice in the [689]matter, for as a condition of their employment with Chrysler they were required to join the UAW. Nevertheless, for the purpose of these proceedings we assume their membership in the union to be voluntary. But such an assumption meets with more difficulty in connection with their membership in Local 230—for inasmuch as their number was so small as to not warrant organization of a separate local, they were compelled to join Local 230, which consisted mainly of production and maintenance workers. Because they were so few, the office and clerical workers and engineers constituted at most only a negligible factor in Local 230, with limited or almost no voting strength as compared with the remaining membership. Nor did they have any voting power in connection with the matter of strikes, having by contract been deprived of their right to strike against Chrysler. That their contracts with respondent were entered into by both parties voluntarily cannot be denied, but as a practical matter the surrender of their right to strike was without doubt a concession the office and clerical workers and engineers had to make to Chrysler when the agreements were entered into. On the other hand, in its contract with the production and maintenance workers Chrysler permitted them to retain their right to strike on the limited matter of rates of production.
What occurred leading up to and during the strike discloses a complete absence of any act or conduct on the part of the office and clerical workers and engineers in connection with, or in furtherance of, the strike; a complete lack of any grievance between them and Chrysler or any interest in the dispute between Chrysler and the production and maintenance workers; and a protest against union action calling the strike reflected in their disapproval of the same, their decision not to participate therein, and in their conduct of crossing picket lines and reporting for and remaining at their work. They at no time left their jobs, nor did their unemployment result from any freely exercised choice in the course of the dispute; they neither shared in the strike vote nor performed any overt acts that would place them in league with the strikers. Their loss of work was due solely to factors over which they had neither control nor influence. The dispute resulting in the strike was one between Chrysler and the production and maintenance workers relating solely to the “rates of production” provisions of their contract; the dispute in no way affected the office and clerical workers and engineers and they them[690]selves had no economic or other grievance with Chrysler. In the course of the dispute the executive board recommended to the production and maintenance workers that they take a strike vote; only they had the right to vote and only they voted; the office and clerical workers and engineers however voted their disapproval of the strike and not to participate therein. When the International Union approved the strike, the production and maintenance workers walked off the job. As in the matter of the dispute, neither did the office and clerical workers and engineers have any personal interest in the strike or its outcome, nor did they display any union sympathy or interest therein, crossing union picket lines and reporting for work. The terms of the settlement concluding the strike related solely to rates of production affecting only the production and maintenance workers; the settlement in no way directly affected or benefited the office and clerical workers and engineers, nor is there evidence in the record that the strike was called to benefit the entire union. This was not an industry-wide strike. Their only interest appears to have been not in the outcome of the strike but a general one in seeing the strike settled so they could return to their jobs.
In defending the lower court judgment, respondent first contends that the union called a strike of only the production and maintenance workers, and not of the office and clerical workers and engineers, as a matter of strategy; and that the “lay-off” was an exertion by the union against Chrysler of severe economic pressure in order to settle the dispute, attempting to bring the case within the holding of McKinley v. California Emp. Stab. Com., 34 Cal.2d 239 [209 P.2d 602]; Gardner v. State, 53 Cal.2d 23 [346 P.2d 193], and Chrysler Corp. v. California Emp. Stab. Com., 116 Cal.App.2d 8 [253 P.2d 68], which limits the “volitional” test of Bodinson Mfg. Co. v. California Emp. Com., 17 Cal.2d 321 [109 P.2d 935], by refusing to extend qualification for unemployment benefits to nonstriking members who became unemployed by virtue of a strike called for the benefit of all members in which strategy or economic pressure was utilized. We find no evidence of subterfuge or union strike strategy, nor has respondent pointed out any technical move. The reason for the union’s not calling a strike of the office and clerical workers and engineers was far removed from strategy or union maneuver—it had no control of the situation for under their contracts with Chrysler, the office and clerical workers and engineers had [691]no right to strike; moreover they had no interest in either the dispute or the strike and in the only way they could, voluntarily protested against the strike by disapproving the same, voting not to participate therein, crossing picket lines and reporting for work. Respondent’s argument that the lay-off was an exertion of economic pressure by the union fails to take into account the realities of the situation—their number was so small as to constitute the office and clerical workers and engineers but a very minor factor in the overall picture.
However, respondent’s last contention—that inasmuch as the union, which the office and clerical workers and engineers voluntarily joined, was designated under the by-laws as their general agent for all purposes, the action of union officials in calling the strike of the production and maintenance workers was, in fact, the act of each member of the union—deserves serious consideration. It argues that mere membership in a union striking against a common employer imposes an equal liability on all members, under the broad principles of the law of agency, citing as controlling a Pennsylvania ease, Prentice v. Unemployment Comp. Board of Review, 161 Pa. Super. 630 [56 A.2d 295]. Respondent’s argument is predicated mainly on the fact the office and clerical workers and engineers voluntarily joined the union and had an equal part in electing their union officials who, under the by-laws, were authorized to act for them as their agents. It is a fact that the union became their collective bargaining agent simply by virtue of their membership in the union, but it is pure fiction that they chose or could, or did, exert any influence or control over their union officials, for their voting strength was nil compared to the great majority of membership. Prentice v. Unemployment Comp. Board of Review, 161 Pa. Super. 630 [56 A.2d 295], interprets a Pennsylvania statute similar to the California Act. Approximately 50,000 rank and file miners of the United Mine Workers of America (UMW) became unemployed as the result of an industry-wide strike called against their common employers by the supervisory workers of the United Clerical, Technical and Supervisory Employees’ Union (UCT), a separate division of UMW. The purpose of the strike was to force the coal operators to recognize the UCT as the bargaining agent of its members. The strike of the UCT was authorized by the International officers of the UMW. When the strike was settled the rank and file miners returned to work upon orders of the president of the [692]UMW. The court predicated its holding that claimant (and all other rank and file miners he represented) was disqualified from benefits, on the fact that he “entered into membership in his union (UMW) of Ms own volition because he felt that his best financial interests would be served thereby” (p. 300 [56 A.2d]), that by his vote he delegated authority to common union officials to act for him lawfully within the scope of the union objectives, making them his agents, binding him with their acts, that the union officials did not disapprove of or seek to prevent the strike, thereby authorizing the same, and that, because they were his agents, claimant shared responsibility for the strike of another division of the union, rendering his unemployment voluntary within the meaning of the Act. The court said that “ [claimant's unemployment was brought about as a direct result of his chosen method of collective bargaining” (p. 300 [56 A.2d]).
In some respects, the Prentice case is similar to the one at bar, but there are also certain distinguishing features rendering it less than controlling authority here. In the Prentice case, the nonstriking members, through their union officials, could have prevented their fellow members from striking but took no action even to express disapproval of the strike, whereas here, the office and clerical workers and engineers could not have prevented the strike, having had no vote thereon and little or no influence in the election of union officials, and protested in the only way they could—by voting, among themselves, disapproval of the strike and no participation therein, and executing their choice by crossing union picket lines and reporting for work. In the former case, an industry-wide strike, directly affecting the status and power of the UMW as a whole, was involved and the suspension of work was by their union representatives “obviously approved for their [rank and file miners’] ultimate benefit” (p. 300 [56 A.2d]); in the case before us, only one unit of one local struck and there was no strike benefit to the office and clerical workers and engineers nor did union officials ever pretend there to be. Although the court in the Prentice case held that whether the miners would benefit by the outcome of the strike was beside the point, it acknowledged that “their international officers considered it of distinct advantage to the UMW” (p. 300 [56 A.2d]). In the Prentice ease, the rank and file miners of the UMW were ordered back to work, not by their employers, the coal operators, but by the president of the [693]UMW, indicating that the strike of only the supervisory employees of the UCT was a matter of strategy by the UMW; in the light of our previous discussion it can hardly be said the strike of the production and maintenance workers was a matter of strategy designed to benefit the entire union membership.
But without regard to these factors, the broad application of the rule of agency found in Prentice v. Unemployment Comp. Board of Review, 161 Pa. Super. 630 [56 A.2d 295], holding that mere membership in a union authorizing a strike against an employer imposes equal liability for such strike action on all members of the union, including the nonstrikers, appears to he wholly incompatible with the “personal responsibility” view taken by courts in this jurisdiction. The Supreme Court in Bodinson Mfg. Co. v. California Emp. Stab. Com., 17 Cal.2d 321 [109 P.2d 935], establishing the “volitional” test, speaks of qualification for unemployment benefits of one prevented from working through “no act of his own” (p. 327), and relates personal responsibility for his unemployment to an act he himself committed—one over which he had a free choice. In Bunny's Waffle Shop, Inc. v. California Emp. Com., 24 Cal.2d 735 [151 P.2d 234], the court held it proper to relate responsibility for work stoppage to the party who created its actual impelling cause. McKinley v. California Emp. Stab. Com., 34 Cal.2d 239 [209 P.2d 602], held that the “unemployment of the bakery workers was caused by their own action taken with full knowledge of its consequences” (p. 244); and in Chrysler Corp. v. California Emp. Stab. Com., 116 Cal.App.2d 8 [253 P.2d 68], the court, discussing the “volitional” test, stated that the “criteria for denial or awarding of benefits being [was] the personal responsibility of the claimant for his unemployment in the former ease” (p. 15). These cases hold generally that a claimant is not disqualified under the act as having voluntarily left his work unless he bears some personal responsibility for his unemployment ; and in each, the act or conduct or interest in the dispute placing claimant in league with the strikers was one directly related to the impelling cause of the unemployment. No importance was laid on the fact of membership in the union; personal responsibility was contemplated as the criteria. This principle appears to eliminate mere union membership as either the “impelling cause of the unemployment” (the strike), or sufficient to make a nonstriking member responsible [694]for the act of his union officials in calling a strike of other members, under circumstances where he had no interest in the dispute, derived no strike benefit, had no control over the strike and did no act or engaged in no conduct relating to the same. McKinley v. California Emp. Stab. Com., 34 Cal.2d 239 [209 P.2d 602], disqualified bakery workers under the act because their unemployment “was caused by their own action taken with full knowledge of its consequences” (p. 244); but involved was union strategy or a maneuver which resulted in a lockout, a single contract negotiated for all members including the nonstriking claimants, a benefit by all members from the settlement of the strike, and a strike vote, in which they all participated, authorizing the strike. The object sought to be accomplished by the strike in Gardner v. State, 53 Cal.2d 23 [346 P.2d 193], was a change in the master collective bargaining agreement affecting all employees. Therein, too, was union strategy by implementation of a strike against less than all employees. Likewise in Chrysler Corp. v. California Emp. Stab. Com., 116 Cal.App.2d 8 [253 P.2d 68], was a concert of action between striking and nonstriking members and a definite identity of interest in the dispute. Only the production and maintenance workers of Local 230 participated in the strike although the office workers, who then under their contract could strike, voted to strike if necessary. The strike was concluded with Chrysler and Local 230 agreeing to new contracts for all units which resulted in new contracts for the office workers as well as the production and maintenance workers. Unlike in the case at bar in which the dispute was strictly one of the production and maintenance workers, each member of Local 230 regardless of unit, had a direct interest in the outcome of the strike; the contracts negotiated in behalf of each bargaining unit, as a prelude to the termination of that strike, contained changes which were practically identical in terms and resulted in similar benefits; the office workers were, in fact, directly involved and directly interested in the dispute, the strike and its outcome (the demand for a revision of the contracts of employment between Chrysler and all categories of its employees was the crux of the dispute) ; and as policy strategy the national leadership of the UAW called a strike of production workers only, although the office workers voted to conform to this decision and in so doing were fully aware that the strike would stop work. ¡Reciting the purpose and intent of the act, analyzing the direct
If, under their approach to the California Unemployment Compensation Act, mere membership in the union had alone been sufficient to render nonstrikers personally responsible for the act of their union officials in sanctioning a strike of other members, there would have been no necessity for the courts to go into the vital matters of strike strategy, voluntary concerted action, identity of interest, joint activity, or subterfuge which violates the substance of the act, or to analyze the impelling cause of work stoppage. Dictum in Barber v. California Emp. Stab. Com., 130 Cal.App.2d 7 [278 P.2d 762], would indicate that membership in the union alone is not sufficient to disqualify a claimant under the act. In any event we find nothing in any California authority pointing to such an interpretation of justifying such a holding.
Nor is the argument that having theretofore accepted the advantages and benefits of union membership the office and clerical workers and engineers must now accept its disadvantages, a compelling one, for it was not their membership in the union that was the impelling cause of their unemployment [696]but the strike, over which they had no control. Further, they left their work not because of the dispute between Chrysler and the production and maintenance workers but in the course of the dispute. And the Supreme Court, interpreting section 1262, has made a distinction “between leaving in the course of a trade dispute and leaving because of a trade dispute. The act does not disqualify an employee from receiving benefits in all cases where his unemployment results directly or indirectly from a labor dispute, but makes him ineligible only if he left his work because of the dispute. There must therefore be a direct causal connection between the trade dispute and the leaving of work. It is conceded that when claimants ceased work, a trade dispute between the unions and employers was in active progress, but this fact alone does not necessarily establish that the leaving was because of the trade dispute . . . The fact that the trade dispute was unquestionably the motivating cause of the employers’ acts does not establish any direct causal relation between the dispute and the employees’ leaving of work. (See Rhea Mfg. Co. v. Industrial Com., 231 Wis. 643 [285 N.W. 749, 753].)” (Bunny's Waffle Shop, Inc. v. California Emp. Com., 24 Cal.2d 735, 740-741 [151 P.2d 234].) The dispute existed and the resultant strike was in active progress some time before the office and clerical workers and engineers were laid off by respondent. They continued to work a week after the strike commenced and resumed a week before it ended; they did not leave their work in the sense that they walked off the job and refused to return but were laid off by their employer.
We realize the significance of certain social or economic problems relative to the maintenance of the fund by the employer but consider them not a matter for the court (Bodinson Mfg. Co. v. California Emp. Com., 17 Cal.2d 321 [109 P.2d 935]); proper resort to the Legislature might well result in changes similar to those placed in the Pennsylvania statute after the decision in the Rrentice case.
For the foregoing reasons the judgment is reversed.
Wood, P. J., concurred.