California Employment Commission v. Berlin & Russell Aircraft Machine & Mfg. Co.

DENMAN, Circuit Judge.

This is a case argued and submitted with United States v. Berlin and Russell Aircraft Machine and Manufacturing Company, et al., No. 10,049, this day decided. It arose in the court of the same proceeding under the. bankruptcy law as in the latter case. The appellant filed a claim for unemployment taxes for the same period and conditions of employment under the California Unemployment Insurance Act, Ch. 352, p. 1226, Stats. 1935, as amended. The court ordered the claim denied.

The pertinent portion of the California act reads

“Sec. 9. ‘Employer’ means:

“(a) Any employing unit, which for some portion of a day, but not necessarily simultaneously, in each of twenty different weeks [each in its entirety in the current calendar year], whether or not such weeks are or were consecutive, has within the current calendar year or had within the preceding calendar year in employment four or more individuals, irrespective of whether the same individuals are or were enw ployed in each such day; * * St. Cal. 1937, p. 2055, § 9. (Emphasis supplied).

The bracketed material is added to show the contention of the taxpayer.

In accord with our decision in No. 10,-049, we construe the act as requiring that the four individuals be “in employment” “within the current calendar year” and in “twenty different weeks,” but that the first of the twenty weeks need have in the current calendar year only the days of employment. The act does not require that the twenty weeks shall be each in its entirety within the calendar year. It is irrelevant that other days of that week were in the prior year.

Reversed.