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Employment Development Department
Employment Development Department

Total and Partial Unemployment TPU 460.65

Union Payment or Benefit

Section 1252 states that an individual is unemployed in any week in which he/she performs no service and in which no wages are payable to him/her or in any week of less than full-time work. Wages are a remuneration for services performed. Therefore, if the claimant is paid for his/her picket duty, he/she was wages payable to him/her for services performed by him/her. On the other hand, if the claimant is receiving a type of strike benefit or welfare payment from the union, this is not wages since these payments would be paid if the claimant were performing the service or not.

A. Picket Duty

In Benefit Decision 4526, the Board considered the case of a claimant who performed picket duty for his union while claiming unemployment insurance benefits. The business representative of the claimant’s union testified that only those members in good standing who were determined by the finance committee to be in need of funds were permitted to perform services for which payment was made. The representative also testified that if a member in need could not picket because of illness or other cause which the union deemed sufficient, he nevertheless would be paid the "benefit"; however, the record does not disclose any specific instance of a payment having been made under such circumstances. The claimant testified that to his knowledge, no payments were made to member who did not perform picket duty. The issue in the instant appeal is whether payments made by the union to the claimant were a gratuity intended as strike benefits or whether the claimant, while picketing, in fact was "in employment" and received "wages" as defined in the Unemployment Insurance Act. If the latter is the proper view, the claimant did not meet the eligibility requirements of the Act during the weeks for which benefits were claimed.

"It is apparent . . an individual must be ‘unemployed’ during a week before he can be eligible for benefits for that week. Disregarding the principles applicable be partial unemployment, with which we are not concerned in this case, for such time as an individual performs personal services for which he received wages in excess of his weekly benefit amount, such individual is not unemployed and therefore not eligible for benefits.

The claimant in the instant case in performing picket duty six hours per day, six days per week unquestionably was performing personal services for his union. In return for those services, and conditioned in fact and in amount upon the performance of those services, he received a stated remuneration in the amount of thirty-six dollars per week. There is no evidence that had he not picketed the required time, he would have nevertheless received a like amount, or, in fact, any sum at all and there is but slight evidence to show that in some other few instances, which the record does not specifically establish, other members of the claimant’s labor organization may have received payments from the union without performing services therefor. The evidence before us falls far short of establishing any general plan of the claimant’s union for the payment of benefits to all of its needy members irrespective of the value of any services performed.

Under the facts presented, we are of the opinion that the payments in question were not strike benefits within the definition of that term which we have adopted, but that such payments must be regarded as ’remuneration for personal services’ and therefore wages as defined in . . . the Act. Since we have concluded that the claimant was performing services for wages during the weeks involved herein, he was not ‘unemployed’ . . . "

B. Strike Benefits

Benefit Decision 5284 differs from the above case and therein the Board held that the money the claimant received was not wages. The claimant performed picket duty on the picket line established by his union around the premises of his last employer. The claimant testified that he customarily picketed three days a week, five hours per day, but that during some weeks he did not picket a total of fifteen hours. During these weeks the claimant received sums of money from his union ranging from $10 to $25 per week. The claimant testified that the amounts he received were not dependent upon the number of hours he walked the picket line and that, in fact, he had received as much as $25 during weeks in which he walked the picket line less than fifteen hours. The amounts paid by the union to the claimant were defined by him as a "donation" or bonus. The claimant was not informed that as a condition of eligibility to receive these "donations" it would be necessary for him to picket.

No records were maintained by the union of the number of hours each member walked the picket line; and they were not subject to fine if they refused to perform picket duty. Officers of the union testified that the payments made represented donations for the purpose of rendering financial assistance to the striking members, and that no services were required of the recipients of these benefits. A witness for the union who was one of the striking employees but not a claimant for benefits appeared and testified that he had served on the picket line since the inception of the strike with the exception of one week in which he was ill. During this week he received the sum of $25 from the union just as he did for all other weeks in which he picketed. The evidence discloses that there was at least one other individual who received sums of money from the union as assistance although he did not serve on the picket line. The Board said:

"In our opinion the evidence in this proceeding supports the findings of the Referee that the amounts paid to the claimant by the union during the period involved in this appeal constituted ‘strike benefits’ within the definition of what term which we have adopted, and were not ‘wages’ paid as compensation for personal services . . .

Consequently, the claimant was an ‘unemployed’ individual within the meaning of . . . the Act and was entitled to benefits of the Act if otherwise eligible."

Clearly, the reason that the payments in this case were not wages and in the above-cited case were wages was because no services were required to receive the benefits in this case.