P-B-90
BEFORE THECALIFORNIA UNEMPLOYMENT INSURANCEAPPEALS BOARDIn the Matter of:DOROTHY C. ROWE PRECEDENT(Claimant) BENEFIT DECISION No. P-B-417SAN LORENZO UNIFIED SCHOOL DISTRICT Case No. 79-6736EMPLOYMENT DEVELOPMENT DEPARTMENTOffice of Appeals No. OAK-4P-1919The employer and the Department appealedfrom the decision of the administrative law judge which held that theclaimant was eligible for benefits under section 1253.3 of the UnemploymentInsurance Code.STATEMENTOF FACTSThe claimant has been a classifiedemployee of the employer school district for 18 years. In recentyears she has been an account clerk.Until 1978 the claimant had alwaysworked as a 12-month employee. By letter dated August 9, 1978the employer informed the claimant that effective September 9, 1978the claimant's work year would be reduced to 10 months "due to lack of work and/or lack of funds." Theletter also stated: "The law requires that you be given a 30-daynotice prior to changing your position to 'school year' basis."The letter notifying the claimant of the change informed her that herwork year would go from five days before the start of school until tenworkdays after the close of school.The claimant had customarily workedduring each summer recess until 1979. In 1979, as the result ofher reduction to 10-month status, the claimant ceased work on June 29,1979. At that time she was aware that she would be returning towork on August 30, 1979, and the claimant did in fact return to workon that date.
The claimant worked under this newarrangement during the school holidays at Christmas and Easter. She is required to take her vacation at the end of her work year. Whenshe was employed on a 12-month basis she received 20 days vacation pay;however, because of her 10-month status her vacation pay has been reducedproportionately. She currently earns $848 per month.REASONSFOR DECISIONSection 1253.3 of the UnemploymentInsurance Code provides in pertinent part as follows;"(a) Notwithstanding anyother provision of this division, unemployment compensation benefits,extended duration benefits, and federal-state extended benefits arepayable on the basis of service to which Section 3309(a)(1) of the InternalRevenue Code of 1954 applies, in the same amount, on the same terms,and subject to the same conditions as such benefits payable on the basisof other service subject to this division, except as provided by thissection."(b) Benefits specifiedby subdivision (a) of this section based on service performed in theemploy of a nonprofit organization, or of any public entity as definedby Section 605, with respect to service in an instructional, research,or principal administrative capacity for an educational institutionshall not be payable to any individual with respect to any week whichbegins during the period between two successive academic years or terms,or when an agreement provides instead for a similar period between tworegular but not successive terms, during such period, or during a periodof paid sabbatical leave provided for in the individual's contract,if the individual performs such services in the first of such academicyears or terms and if there is a contract or a reasonable assurancethat such individual will perform services in any such capacity forany educational institution in the second of such academic years orterms.
"(c) Benefits specifiedby subdivision (a) of this section based on service performed in theemploy of a nonprofit organization, or of any public entity as definedby Section 605, with respect to service in any other capacity than specifiedin subdivision (b) for an educational institution (other than an institutionof higher education) shall not be payable to any individual with respectto any week which commences during a period between two successive academicyears or terms if such individual performs such service in the firstof such academic years or terms and there is a reasonable assurancethat such individual will perform such service in the second of suchacademic years or terms."* * *"(f) For purposes of thissection, to the extent permitted by federal law, 'reasonable assurance'includes, but is not limited to, an offer of employment made by theeducational institution, provided, that such offer is not contingenton enrollment, funding, or program changes."Sections 1253.3(b) and (c) were patternedafter section 3304(a)(6)(A), clauses (i) and (ii) of the Federal UnemploymentTax Act, as enacted by Public Law 94-566.Review of the congressional debateson Public Law 94-566 and earlier legislation satisfies us that the intentof Congress in enacting such legislation was to deny benefits to thoseschool employees who are normally off workduring summer recess or summer vacation periods. However, it was notthe intent of Congress to deny benefits to year-round employees or thoseregularly scheduled for summer work who, due to the cancellation ofnormal or scheduled summer work, became unemployed. (Congressional Record,September 29, 1976, Vol. 149, Part II, H11615-6.) (See also Congressional Records, September29, 1976, Vol. 122, No. 149, S17013-4; September 29, 1976, Vol. 122,No. 149, S17022-3; October 1, 1976, Vol. 151, Part II, H12172.)
In this respect, the intent of Congresshas been followed and applied in numerous cases arising out of cancellationof 1978 summer sessions following passage of Proposition 13 and theconcomitant reduction of funds available to school districts. During the summer of 1978, the Employment Development Department andthe United States Department of Labor reevaluated the applicabilityof section 1253.3 to professional and non-professional school employees who were scheduled to teach or workduring the 1978 summer school session. It was concluded, after an analysisof the Congressional Record, that it was not the intent of Congressto deny benefits to those scheduled for summer work who became unemployeddue to cancellation of the summer session.We believe that similar reasoningmust be followed in the instant case. The claimant was essentiallya full-time employee who was reduced to a 10-month employee. Prior to this reduction, she could reasonably anticipatethat she would continue her usual pattern of year-round work. When she was reduced to a 10-month employee she was in effect laid offfrom her normal year-round work and suffered a wage loss. It isclear that the cause of her unemployment was not a normal summer recessor vacation period but the loss of customary summer work. Theperiod commencing immediately after her last day of work on June 29,1979, is not a "customary vacation period" for this claimant. The claimant has always worked during this period and has been forcedto cease work due to a mandatory layoff caused by funding problems,unlike actual "school year" employees (such as tenured teachers). This claimant works during the Christmas and Easter holidays -- periodsthat are customary vacation period or "holiday recesses" forteachers. The effect of the reduction of the claimant's work yearwas to cause her to become laid off. She is involuntarily unemployedthrough no fault of her own, and the provisions of Section 1253.3 ofthe Code do not apply in her case. To equate this claimant withthose who normally do not work during summer recess periods would contravenethe policy set forth in section 100 of the Unemployment Insurance Codethat benefits are to be provided to those unemployed through no faultof their own.We therefore conclude that the claimantis not ineligible under section 1253.3 of the Unemployment InsuranceCode beginning July 1, 1979.In view of this conclusion, the Departmentmay wish to consider the claimant's eligibility under section 1252 ofthe code with respect to her receipt of vacation pay.
DECISIONThe decision of the administrativelaw judge is affirmed. The claimant is not ineligible under section1253.3 of the code beginning July 1, 1979. The matter of the claimant'seligibility under section 1252 of the code is referred to the Department.Sacramento, California, January 6,1981.CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARDDON BLEWETT, ChairpersonHERBERT RHODES - Not VotingLORETTA A. WALKERRAFAEL A. ARREOLADISSENTING - Written Opinion Attached:MARILYN H. GRACE
DISSENTING OPINIONI dissent.I cannot agree that the claimantis entitled to benefits. In Appeals Board Decision No. P-B-412this Board considered the case of an assistant professor who was reducedfrom an 11.5-month employee to a 10-month employee. He receivednotification of this action shortly before the summer of 1979, a periodduring which he had expected to be working as he had in the past. We held that the claimant was not ineligible under section 1253.3 inthat he was in effect laid off from reasonably anticipated and customarysummer work.The present case, however, is entirelydifferent. In the instant case the claimant's change of status occurred10 months prior to the 1979 summer recess. The claimant knew,during the entire 1978-79 school year, that she was a 10-month employee,and she accepted employment during that school year on that basis. The claimant was not laid off during or shortly before the 1979 summerrecess. She did not lose reasonably anticipated summer work. Since she had reasonable assurance that her services would be utilizedduring the 1979-80 academic year, she should be held ineligible forbenefits under section 1253.3 of the code.Under the reasoning of the majorityopinion, the claimant is provided with an argument that she should beeligible for benefits during summer recesses in the indefinite future. If this comes to pass, it will become apparent to all, as it is to me,that the majority has engaged in quasi-judicial legislation.For these reasons, I would reversethe decision of the administrative law judge and hold the claimant ineligibleunder section 1253.3 of the code.MARILYN H. GRACE
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