Oliver v. Unemployment Insurance Appeals Board

Opinion

KINGSLEY, J. Plaintiff appeals from a judgment denying her petition for a writ of mandate to overturn an adverse decision of respondent board. We reverse.

Plaintiff was employed as a janitor from January 2, 1975, until July 30,1975, when she was discharged. Thereafter she filed with the NLRB a claim against her employer for unlawful discharge, and also filed a claim for unemployment insurance. She received unemployment insurance until August of 1976. In the [217]meantime her NLRB proceeding was settled by payment to her of an amount equal to her back pay. Although the settlement agreement recites that the employer does not admit any unfair labor practice, the respondent here concedes that the award was based on an unlawful practice.

Under the provisions of the unemployment insurance act, a period of time after a discharge but prior to filing of a claim is disregarded for determining the amount of insurance payable. However, under section 1277 of that code, a second claim for insurance may be filed, relying on the period so excluded in computing the first claim. That section, controlling here, reads as follows:

“Notwithstanding the provisions of Section 1281, if the base period of a new claim includes wages which were paid prior to the effective date of and not used in the computation of the award for a previous valid claim, the new claim shall not be valid unless, during the 52-week period immediately following the effective date of the previous valid claim, the individual earned or was paid sufficient wages to meet the eligibility requirements of subdivision (a) of Section 1281 and had some work. For the purpose of this section only the term ‘wages’ includes any and all compensation for personal services performed as an employee for the purpose of meeting the eligibility requirements under subdivision (a) of Section 1281. This section is not applicable to the computation of an award for disability benefits but the establishment of a valid claim for disability benefits shall not constitute a valid claim for unemployment compensation benefits unless the claimant earned or was paid sufficient wages and performed some work to entitle the claimant to an award under this section.”

The position of respondents here, accepted by the trial court, is that the NLRB settlement was not wages and did not involve “work” within the meaning of those terms in the statute. We disagree.