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Court of Appeal, Third District, California.

Martin R. GLICK, Director of Employment Development, State of California, Plaintiff and Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent; Enid G. BALLANTYNE, Real Party in Interest and Respondent.

Civ. 16424.

Decided: January 03, 1978

Evelle J. Younger, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Elisabeth C. Brandt, Gerald Prod, Deputy Attys. Gen., for plaintiff and appellant. Robert W. Bryant and Thomas L. Sapunor, Jr., Sacramento, for defendant and respondent. Ronald A. Zumbrun, John H. Findley and Sandra R. Johnson, Sacramento, amicus curiae, for plaintiff and appellant.

The Director of the California Employment Development Department appeals from a judgment denying a petition for writ of mandate (under Code Civ.Proc., § 1094.5), after the California Unemployment Insurance Appeals Board (Board) awarded unemployment insurance benefits to real party in interest Enid G. Ballantyne.

From 1968 to 1970, Ballantyne was employed full time. Thereafter, because she was married and had small children to rear, she voluntarily restricted her employment to part-time and intermittent day-time work at Bullock's Department Store.

In 1973, Ballantyne entered college full time. She separated from her husband, and needing “more stable employment,” went to work in January 1974 as assistant manager and night cashier at a motion picture theatre. Her hours there were 6 p. m. to 1 a. m. and she worked an average of 30 hours per week until the theatre closed on April 15, 1974. Meanwhile, in March 1974 she also obtained work with the Pasadena Unified School District; there she administered and evaluated tests of elementary school children for about 20 hours a week during day-time hours; this employment terminated in the middle of June 1974.

From July 1974 to March 1975, while continuing to attend college, she was employed by the Los Angeles Times newspaper as a secretary, her work consisting of billing, bookkeeping, and customer relations. She worked 25-30 hours per week, four days a week, from 6 a. m. “until whenever I was let go.” In March of 1975, Ballantyne lost this employment through no fault of her own, filed a claim for unemployment insurance benefits and received benefits through September 21, 1975, when she entered the University of California at Los Angeles law school.

At law school, she attended classes Monday through Friday, at varying hours (9 a. m. to 2 p. m. on Monday and Tuesday, 10 a. m. to 4 p. m. on Wednesday, and 11 a. m. to 4 p. m. on Thursday and Friday). In addition she studied at least four hours a day. In a written questionnaire submitted to the employment office at the time she entered law school, she was asked, “If you would drop school for work, what is the minimum income from wages you would have to have?” She answered, “$1,000.” She was thereupon found ineligible for benefits.

At a subsequent hearing she testified that this answer meant she would not be willing to forego schooling for work. She added: “I am not someone who just works for the summer and then hopes to collect unemployment benefits derived through the year. I am the sole support of three children. I have successfully worked my way through school carrying a full-time school load, caring for my children. I graduated from Cal State with high honors. I was admitted to UCLA Law School . . .. I feel that . . . (denial of unemployment benefits places) an unfair burden on the student workers who are making a good faith effort to work their way through school or trying to better themselves. I see no social utility in penalizing people like me.”

At the time of the hearing on November 25, 1976, Ballantyne was tutoring a person who was preparing to take the law school aptitude test 2 hours each week at $5 per hour; she also had been promised a weekend job in December as a credit checker for Carte Blanche, earning $25 per shift.

Asked to estimate the job market “for persons with the availability restrictions the claimant has imposed,” the department's representative testified: “The labor market is extremely small regardless of what she does for a living. There are just too many people out of work and there is very little night work now.” The administrative law judge upheld the department's determination that Ballantyne was ineligible for benefits because she was not available for work, and she appealed to the Board.

In a 3-2 decision (designated at P-B-313, a binding precedent pursuant to Unemp.Ins.Code, § 409), the Board reversed, stating: “ . . . we find that this claimant's past employment history shows that she has attended school for a considerable period of time and at the same time worked on a part-time basis to support herself and her children. The benefits which she is claiming are based entirely upon wages earned in part-time employment. She imposes no undue restrictions on acceptable work except that such work will not interrupt her attendance at school. She has made diligent and successful efforts to obtain work. According to the testimony of the Department, a labor market, although small, does exist for the claimant. Under these conditions, we conclude that this claimant has overcome the inference of unavailability and has established that she is available for work.”

Two dissenters felt she was not available for work, adding that unemployment insurance is not “an eleemosynary program or a scholarship program,” and that “claimant should direct her efforts to secure financial aid while attending college to (other) organizations and not pursue unemployment insurance claims.” (See Perales v. Department of Human Resources Dev. (1973) 32 Cal.App.3d 332, 337, 108 Cal.Rptr. 167.)

The superior court upheld the appeals board, stating “The issue before this court is the question of availability. . . . Clearly, here the applicant continues to make herself available for precisely the work with which she earned her unemployment credits.”


We have concluded that the sympathetic facts presented by Ballantyne, a laudable claimant, have influenced the Board and the superior court to depart significantly from the meaning and intent of the Unemployment Insurance Code. Their decision must be vacated.

In Unemployment Insurance Code section 100 the Legislature declared the policy underlying unemployment insurance. It states that it has found it necessary to provide “ . . . for the compulsory setting aside of funds to be used for a system of unemployment insurance providing benefits for persons unemployed through no fault of their own, and to reduce involuntary unemployment and the suffering caused thereby to a minimum.

“It is the intent of the Legislature that unemployed persons claiming unemployment insurance benefits shall be required to make all reasonable effort to secure employment on their own behalf.” (Emphasis added.)

As the superior court correctly stated, the issue is whether the claimant was “available for work” within the meaning of Unemployment Insurance Code section 1253,1 subdivision (c), when she refused any employment that would interfere with school attendance as a full-time day law student.

Both sides cite Precedent Benefit Decision P-B-17, which correctly interprets section 1253, subdivision (c), as follows:

“To be considered available for work a claimant must be ready, willing and able to accept suitable employment in a labor market where there is a demand for his services.

“In order to meet the eligibility requirements of section 1253(c) of the code a claimant must be able to work and available for work for each day during the claimant's normal workweek, and inability to work during any workday renders a claimant ineligible for benefits for the entire week.

“A claimant is not available for work if, through personal preference or force of circumstances, he imposes unreasonable restrictions on suitable work such as limitations on hours, days, shifts or wages, which materially reduce the possibilities of obtaining employment.” (Emphasis added.)

The Director persuasively argues that Ballantyne's restrictions were unreasonable because (1) the department's representative testified that with these restrictions only an “extremely small” labor market remains because “there is very little night work,” (2) “ . . . it is axiomatic that the overwhelming portion of the market for clerical and administrative skills (possessed by Ballantyne) is tied directly to the nine-to-five Monday-through-Friday schedule of the business world,” and (3) “ . . . three of (claimant's) four recent jobs required her to work hours which she now does not have available.”

The Board's response is predicated upon Unemployment Insurance Code section 1253.8, which states: “An unemployed individual shall not be disqualified for eligibility for unemployment compensation benefits solely on the basis that he or she is a student.” It argues that the department's refusal to give benefits to students who will not discontinue school for work amounts to disqualifying them “solely because they are students.” Says the Board: “Obviously, if they were not students they would not have the problem of availability within the hours of their class attendance. For the claimant to restrict her availability to hours that do not interfere with her attendance at class is a reasonable restriction. (Appeals Board Decision No. P.B. 17 holds that a claimant will be ineligible if the claimant places unreasonable restrictions upon availability.) In contending that the claimant is ineligible under the circumstances of this case, the department is doing indirectly what it cannot do directly by a (sic ) reason of the prohibition in section 1253.8.”

We note that section 1253.8 was added to the code in 1975, effective January 1, 1976, and therefore cannot be relied upon to make Ballantyne eligible for benefits in September 1975. Nonetheless her continuing right to benefits after January 1, 1976 is also at stake; we therefore address the merits.

The Board's effort to interpret section 1253.8 as a general exception to the rule of availability, in effect substituting the word “if” for the words “solely on the basis that,” is not supportable. The section simply proscribes discrimination against student purely because they are students. It is silent as to the department's ability to disqualify students who are unavailable. Since a person may be a student and also be available for suitable work, there is no basis upon which to imply a legislative intent to exempt students as such from the general requirement of availability. Correctly construed, the section merely prohibits such action as disqualifying a night student whose training and experience are in 8 a. m. to 5 p. m. work and who is therefore available for work, or disqualifying a student who is willing and able to reschedule (or even abandon) classes if suitable work becomes available.


The Board makes a second response to the department's contention. It argues that the record fails to establish that Ballantyne's refusal to accept work conflicting with her school attendance “materially reduced the labor market open to her.” (Emphasis in original.)

On the contrary, as pointed out, three of Ballantyne's four most recent jobs required her to work hours which she no longer has available. Moreover, her last full-time employment (at the Los Angeles Times) was in large measure during normal day-time business hours which are unavailable now. Her own employment history therefore provides eloquent documentation of unavailability for most of the work she herself has performed in the past; a more adequate proof that she has materially reduced the labor market earlier open to her could hardly be provided.

The Board and the superior court both appear to find it somehow “unfair” to deny benefits to a person who is available for part-time work when the claim is based upon credits accumulated during previous part-time work. As above stated, Ballantyne is in fact not available for most forms of part-time work she performed in the past. But even if she were, there is neither authority nor reason for a proposition that her earlier ability to work despite self-imposed restrictions means that when she can no longer find compatible work, such restrictions become ipso facto implied in law so as to deem her available despite her otherwise clear unavailability. We agree with Texas Employment Commission v. Hays (Tex.Sup.Ct.1962) 360 S.W.2d 525, 530, when it states: “We can perceive of no logical basis for favoring those who have earned their qualifying wage credits in part-time employment over those who have earned theirs in full-time employment.”

The Board has unduly complicated a very simple proposition. Full-time college students, undergraduate and postgraduate, are generally not available for work, because their academic efforts do not leave them time for work. Where despite this unmistakable reality a given student nonetheless exhibits an availability for work as defined and explained in P-B-17, he or she comes within the scope of section 1253.8 and is entitled to unemployment insurance benefits while unemployed. Such was not at all the case here.


Our holding does not conflict with the Supreme Court's recent decision in Sanchez v. Unemployment Ins. Appeals Bd. (1977) 20 Cal.3d 55, 141 Cal.Rptr. 146, 569 P.2d 740. In Sanchez, an applicant with experience as a restaurant waitress or manager and factory worker was not available for work on Saturdays and Sundays because she was unable to obtain a babysitter for her four-year-old son. The Supreme Court held (1) that “(b)ecause of the crucial importance of parental responsibility and supervision . . . ” (20 Cal.3d at p. 69, 141 Cal.Rptr. at p. 155, 569 P.2d at p. 749), the applicant had “good cause” for refusing work which was “irreconcilable with the duties of parenthood,” and (2) that there was no evidence that she “did not remain available to a substantial field of weekday factory and restaurant employers.” (20 Cal.3d at pp. 68-69, 141 Cal.Rptr. at p. 155, 569 P.2d at p. 749.)

In the present case, Ballantyne had no such comparable responsibility or duty to attend law school and thus no “good cause” for refusing employment because of law school time requirements. (See 20 Cal.3d at p. 70, 141 Cal.3d 146, 569 P.2d 740.) In addition, the department's uncontradicted evidence demonstrates that Ballantyne's law school attendance prevented her from being available to a “substantial field of employment.” (See 20 Cal.3d at pp. 70-71, 141 Cal.3d 146, 569 P.2d 740.)

The judgment is reversed with directions to the superior court to issue a writ of mandate ordering the Board to vacate its decision and file a new decision upholding the department's finding of ineligibility.

Hearing denied; BIRD, C. J., did not participate.


1.  In its entirety, section 1253 reads:“An unemployed individual is eligible to receive unemployment compensation benefits with respect to any week only if the director finds that:“(a) A claim for benefits with respect to that week has been made in accordance with authorized regulations.“(b) He has registered for work, and thereafter continued to report, at a public employment office or such other place as the director may approve. Either or both of the requirements of this subdivision may be waived or altered by authorized regulation as to partially employed individuals attached to regular jobs.“(c) He was able to work and available for work for that week.“(d) He has been unemployed for a waiting period of one week as defined in Section 1254.“(e) He conducted a search for suitable work in accordance with specific and reasonable instructions of a public employment office.”

PARAS, Associate Justice.

PUGLIA, P. J., and REGAN, J., concur.