Sherman Bertram, Inc. v. California Department of Employment

FOX, P. J. This is an appeal from a judgment directing the issuance of a writ of mandate commanding Irving H. Perluss, as Director of Employment, to vacate and set aside a decision of the California Unemployment Appeals Board which held that the unemployment insurance reserve account of respondent should be charged for the payment of unemployment insurance benefits to Thel McCaslin, a former employee of respondent.

The claimant, McCaslin, was employed by respondent on September 19,1957, as a paint finisher. The last day he worked was April 28, 1958.

Subsequent to the last-mentioned date, McCaslin was involved in a hit and run accident and, as a consequence, was sentenced to .jail for 30 days. His wife notified respondent-[735]employer immediately that McCaslin was in jail and requested that his job be held open. He was the only person employed by respondent who could perform the type of work for which he was classified, that is, as a paint finisher, with the exception of the supervisor in charge of the painting department. Claimant’s wife was informed that the respondent would hold the job open unless the work got too far behind, in which event her husband would have to be replaced.

Claimant’s position was held open by respondent for two weeks, at which time it became necessary to hire a replacement. Subsequent to claimant’s release from jail on May 29, he attempted to return to his position on June 2, but respondent had filled the position two weeks prior to that time.

Notice of an unemployment insurance claim was mailed to respondent on June 12, 1958. On June 18 respondent protested the claim because the claimant had failed to report for work on April 29, 1958, a day duly scheduled for work, noting that claimant was necessarily replaced and noting further that respondent understood the claimant was in jail.

On June 25 the Department of Employment issued a determination and ruling, holding that the claimant was not discharged from the employment of respondent for misconduct connected with respondent’s work. On July 3 the employer filed an appeal from this ruling. The matter was heard by a referee of the California Department of Employment. The referee affirmed the ruling of the department. On August 18 the employer filed an appeal from the decision of the referee to the California Unemployment Insurance Appeals Board, which affirmed the decision of the referee.