Fillable Printable De4654
Fillable Printable De4654
De4654
DE 4654 (5-04) (INTERNET) Page 1 of 5 CU
EMPLOYMENT DEVELOPMENT DEPARTMENT PROCEDURES
FOR INVESTIGATING TRADE DISPUTES
STEP 1: Department is informed of initial trade dispute activity by union(s) or
employer(s) involved in dispute, unemployment insurance claimants, or other
sources such as newspapers, radio, and television.
STEP 2: Unemployment Insurance Division Central Office Trade Dispute Specialist
(hereinafter, Specialist), contacts the employer(s) and union(s) involved in the
dispute to ascertain overall facts, including the date the dispute began, the
nature of actions taken, i.e., if members of union involved took strike action, or
if they were prevented from working (locked out). Normally, this contact is
made by telephone. Forms requesting basic information in writing about the
dispute are also mailed to employer(s) and union(s) involved.
STEP 3: Specialist reviews all information obtained, including reports; consults with EDD
Legal Office, if appropriate; and conducts any research necessary to resolve
complex, novel, or unusual issues or conflicts. Specialist prepares Trade
Dispute Notice that provides the overall decision as to the existence of the
trade dispute, its beginning date, general eligibility of various categories of
employees, whether the Department can refer workers to the employer, and
whether strike benefits, if any, are wages. The Trade Dispute Notice is posted
to the Department’s Intranet site for use by EDD staff, and is available upon
request to the employer(s) and union(s) involved in the dispute.
STEP 4: Field operations staff interview claimants, obtain facts about each individual
case, and determine the claimant’s eligibility for unemployment insurance
benefits in accordance with the overall guidelines in the Trade Dispute Notice.
Staff issues a written notice of determination, including an explanation of
appeal rights, to interested parties.
STEP 5: If after the beginning of the dispute the Department becomes aware of
additional facts that may affect the eligibility of individuals involved in the
dispute, the Department’s ability to refer workers, or the Department learns the
trade dispute may have ended, the Specialist conducts additional fact-finding
following the above procedures and may issue supplemental Trade Dispute
Notices as appropriate.
Union and employer representatives can greatly facilitate the issuance of trade
dispute decisions by responding promptly to telephone and written inquiries
from Specialists and field operations staff, and by contacting the Specialist
when a dispute begins or new facts develop.
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The Department’s interest in each trade dispute is limited to its effect on the
eligibility for unemployment insurance benefits for claimants involved in the
dispute and its effect on the referral of workers to employers involved in the
dispute. The Department is required by law to maintain a neutral position
with respect to the merits of the dispute, and may not be influenced by the
merits of the dispute in making its decisions.
Employers and unions involved in a trade dispute may find it useful to access
EDD’s Home Page at: www.edd.ca.gov
and review the Trade Dispute volume
of the Benefit Determination Guide located in the Forms and Publications
Section.
Contact EDD at (916) 654-7401 to report a trade dispute.
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SUMMARY OF PRINCIPLE LEGAL AUTHORITIES TO DETERMINE:
1) WHETHER A TRADE DISPUTE EXISTS.
2) THE ELIGIBILITY FOR UNEMPLOYMENT BENEFITS OF EMPLOYEES INVOLVED.
3) WHETHER THE DEPARTMENT CAN REFER WORKERS TO EMPLOYERS
INVOLVED IN THE DISPUTE.
There is no definition of a trade dispute in the California Unemployment Insurance Code;
however, the Department has adopted as its own the definition from the Norris-LaGuardia
Act (1932):
“…any controversy concerning terms or conditions of employment, or
concerning the association or representation of persons in negotiating,
fixing, maintaining, changing or seeking to arrange terms or conditions
of employment, regardless of whether or not the disputants stand in
proximate relation of employer or employee…”
Section 1262, California Unemployment Insurance Code provides:
An individual is not eligible for unemployment compensation benefits,
and no such benefit shall be payable to him, if he left his work because
of a trade dispute. Such individual shall remain ineligible for the period
during which he continues out of work by reason of the fact that the
trade dispute is still in active progress in the establishment in which he
was employed.
Section 1262.5, California Unemployment Insurance Code provides:
Whenever the department learns that a trade dispute is in progress,
the department shall promptly conduct an investigation and make
investigation findings as to the nature, location, labor organizations
and employers involved, and other relevant facts concerning the trade
dispute as it deems necessary. The department shall provide its
findings to its field offices in locations affected by the trade dispute,
and shall, upon request, make its findings available to any employer,
employers’ association or labor organization involved in the trade
dispute. The department’s investigation findings shall be based upon
the information then available to it and shall not be a determination as
to the eligibility of any claimant for benefits under Section 1262.
California Code of Regulations, title 22, section 1262-1, reads:
With respect to acts or periods of ineligibility under Section 1262 of
the code “week of ineligibility” shall be any week or weeks applicable
DE 4654 (5-04) (INTERNET) Page 4 of 5 CU
to the individual under these regulations, during any portion of which
his or her unemployment is due to his or her having left his or her
work because of a trade dispute and for the period during which he
or she continues out of work by reason of the fact that the trade
dispute is still in active progress in the establishment in which he or
she was employed.
California Code of Regulations, title 22, section 1262-2 reads:
(a) Whenever individuals leave their work because of a trade dispute
under conditions which may disqualify such individuals from benefits
pursuant to the provisions of Section 1262 of the code, the employing
unit, within ten days of the date individuals left such work, shall notify
the department at its office in Sacramento or such other office of the
department as may be designated by an authorized representative of
the department. Such notification shall include separately for each
union involved:
(1) The name and address of the employing unit
(2) A statement that a trade dispute exists
(3) The name and address of the union (or unions)
claiming to represent the individuals who left work
because of a trade dispute
(4) Such other information as may be prescribed by the
department
(b) The employing unit may be granted additional time by the department
in which to comply with the requirements of subdivision (a) of this section,
provided that any notice submitted after expiration of the time limits set
forth in this section should include a statement of the reasons why such
delay should be considered with “good cause.”
20 Code of Federal Regulations, part 652.9 reads:
(a) State agencies shall make no job referral on job orders which will
aid directly or indirectly in the filling of a job opening which is vacant
because the former occupant is on strike, or is being locked out in the
course of a labor dispute, or the filling of which is otherwise an issue in
a labor dispute involving a work stoppage.
(b) Written notification shall be provided to all applicants referred to
jobs not at issue in the labor dispute that a labor dispute exists in the
employing establishment and that the job to which the applicant is
being referred is not an issue in the dispute.
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SIGNIFICANT CALIFORNIA COURT CASES INVOLVING SECTION 1262 OF THE
UNEMPLOYMENT INSURANCE CODE
A. Cases involving the question of whether the employee voluntarily
left his or her
employment because of the trade dispute:
Artigues et. al. v. CUIAB (1968) 66 Cal.Rptr. 390
Bodinson Manufacturing Co. v. California Employment Commission (1941) 109 P.2d 935
Bunny’s Waffle Shop v. California Employment Commission (1944) 151 P.2d 224
Campos, et. al. v. California Employment Development Department (1982)
183 Cal.Rptr. 637
Chrysler Corporation v. CUIAB (1953) 253 P.2d 68
Chrysler Corporation v. CUIAB (1962) 18 Cal.Rptr. 843
Coast Packing Co. v. CUIAB (1966) 48 Cal.Rptr. 854
Gardner v. State of California Director of Employment (1959) 53 Cal.2d 23; 346 P.2d 193
Martinez, et. al. v. CUIAB and Julius Goldman Egg City (1988) 254 Cal.Rptr. 461
McKinley v. California Employment Stabilization Commission (1949)
34 Cal.2d 239; 209 P.2d 602
R.S. Acuff, et. al. v. CUIAB and Greyhound Lines, Inc. (1989) 256 Cal.Rptr. 513
B. Cases involving the question of whether the trade dispute remains
the cause of the
individual’s unemployment:
Isobe v. CUIAB (1974) 116 Cal.Rptr. 376
Mark Hopkins, Inc. v. California Employment Commission (1944) 151 P.2d 229
National Broadcasting Company, Inc. v. CUIAB (1979) 157 Cal.Rptr. 207
Ruberoid v. CUIAB (1963) 27 Cal.Rptr. 878
West Food, Inc v. CUIAB (1979) 158 Cal.Rptr. 406
Windigo Mills v. CUIAB (1979) 155 Cal.Rptr. 63
C. Department Neutrality in Trade Disputes:
W.R. Grace and Co. v. California Employment Commission (1944) 151 P.2nd 215
D. Cases concerning the “establishment” in which employee was employed:
General Motors v. CUIAB (1967) 61 Cal.Rptr. 483
Matson Terminals, Inc. v. California Employment Commission (1944) 151 P.2d 202
