Opinion
Opinions on pages 429-464 omitted.
For Opinion on Hearing, see 216 Cal.Rptr. 782, 703 P.2d 122.
[196 Cal.Rptr. 879]Schwartz, Steinsapir, Dohrmann, Krepack, Sommers & Edelstein, Laurence D. Steinsapir and Henry M. Willis, Los Angeles, for petitioners and appellants.
John K. Van De Kamp, Atty. Gen., Thomas E. Warriner, Asst. Atty. Gen., Anne S. Pressman and Elizabeth Hong, Deputy Attys. Gen., for respondent.
OPINION
KAUFMAN, Associate Justice.
Petitioners Charles Evans, Stanton Weitzeil, Robert Goist and the United Steelworkers of America, AFL-CIO-CLC (petitioners) appeal from judgments denying consolidated petitions for writ of mandate and dismissing the petitions as to the union without leave to amend for failure to state a cause of action.
Pursuant to a collective bargaining Pension Agreement, upon their retirement from Kaiser Steel Corporation (Kaiser) each of the three individual petitioners received a "special payment" that resulted in an offset against their unemployment benefits under Unemployment Insurance Code section 1255.3. Petitioners' primary contention is that the "special payment" did not constitute a "pension, retirement or retired pay, annuity, or any other similar periodic payment ... based on [their] previous work" as specified in section 1255.3 and was not therefore properly offset against unemployment insurance benefits. Petitioners also challenge the manner in which the special payment was allocated and the amount of the special payment that was offset against the unemployment insurance benefits. Finally, petitioners urge the trial court erred in dismissing the petitions as to the union and contend they are entitled to attorney's fees pursuant to Government Code section 800.
All statutory references are to the Unemployment Insurance Code unless otherwise specified.
Charles Evans retired from Kaiser Steel Corporation (Kaiser) effective August 9, 1980, and shortly thereafter he applied for unemployment insurance benefits. His regular pension payments were scheduled to commence in December of 1980.
In October 1980, Evans received a lump sum "special payment" pursuant to the Pension Agreement. Under the terms of the agreement the special payment was allocable to the three-month period following the effective date of Evans' retirement. Consequently, the Employment Development Department (the Department) found Evans ineligible for benefits pursuant to Unemployment Insurance Code section 1255.3. Evans appealed the determination [196 Cal.Rptr. 880] of the department and in December 1980 a hearing was held before an Administrative Law Judge (ALJ). The ALJ affirmed the determination. Evans thereafter filed an appeal with the California Unemployment Insurance Appeals Board (the Board). The Board issued a decision affirming the decision of the ALJ.
Stanton Weitzeil was laid off by Kaiser effective March 15, 1980, for a definite 90-day period. His unemployment insurance benefit year began March 16, 1980, and benefits were paid for the weeks ending with March 29 through May 24, 1980. From April 27 until July 26, 1980, Weitzeil was on extended vacation and following that period he was on an "off work order" until August 25, 1980. Two days later Weitzeil elected to retire from the company and shortly thereafter he again applied for unemployment benefits. His claim was reopened effective September 28, 1980, and he was paid for the weeks ending October 4 through November 29, 1980. However, upon reopening Weitzeil's claim, the Department eventually learned that sometime between September and November Weitzeil had received a lump sum payment of $4,015.35 as his "special payment" under the pension agreement. Upon receiving this information, the Department made a determination/ruling that the lump sum payment was allocable to the week following the last day worked and that therefore Weitzeil was ineligible for the week ending March 22, 1980. The decision was based on Unemployment Insurance Code section 1255.3. Kaiser appealed from the determination/ruling; Weitzeil did not.
The ALJ's decision reversed the Department's determination/ruling that the lump sum pension was allocable to the week ending March 22, 1980, ruling instead that the lump sum was allocable to the months of September, October and November 1980. Consequently, Weitzeil was found ineligible for unemployment insurance benefits under section 1255.3 for that period. Weitzeil thereafter appealed to the Board from the ALJ's decision. The Board affirmed.
Robert Goist was laid off from work by Kaiser in May 1980 and was given the choice of either retiring or taking another position. Goist elected to retire and applied for his pension in July 1980. His regular pension benefits were to commence in November of that year. Sometime between the months of August and October 1980, Goist received a lump sum special payment in the amount of $4,098. In November Goist filed a claim for unemployment insurance benefits. However, as a result of the aforementioned special payment, he was found ineligible for unemployment benefits under section 1255.3. Goist thereafter appealed the Department's determination of ineligibility. The ALJ issued a decision affirming the Department's determination. Goist then appealed to the Board, which ultimately affirmed the decision of the ALJ.
Evans, Weitzeil and Goist each filed a petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5. The United Steel Workers joined as co-petitioners in each case. The three cases were subsequently consolidated. Following the submission of written and oral arguments, the court entered judgment in each case denying the petition for writ of mandate and dismissing the petition as to the union without leave to amend. These appeals followed. Characterization of the "Special Payment"
The court made the following findings in each case:
The "special payment" is provided for by the Pension Agreement which specifically characterizes it as a type of "pension payment." Under the heading "Types of Pension Payments" the agreement provides in paragraph 3.1: "A pension granted pursuant to Section 2 consist of: [p] (a) A special initial pension amount (hereinafter 'special payment') ... and [p] (b) a regular pension amount (hereinafter 'regular pension') ...." The "special payment" is payable only after retirement and is payable for the first three months following retirement. It is paid from the pension trust fund, not from the employer's payroll.
Nevertheless, based on the manner in which it is calculated, petitioners contend the "special payment" is in reality "a form of severance pay consisting mostly of vested vacation benefits." Petitioners urge the "special payment" is really vested vacation pay under another label. They point out that under the Basic Labor Agreement between Kaiser and the union an employee entitled to vacation that has not been taken by the time of retirement does not receive that vacation or vacation pay if he or she is eligible for the "special payment" under the Pension Agreement. Petitioners then assert that the right to accrued and vested vacation time may not be lawfully forfeited and argue therefore that to avoid illegality the "special payment" must be considered to be in lieu of uncompensated vacation time. Not so.
The Pension Agreement provides for calculation of the amount of the "special payment" as follows:
Labor Code section 227.3 upon which petitioners rely prohibits the forfeiture of vested vacation time when an employee is "terminated." However, even assuming that retirement may be equated with termination, a question we do not decide, the statute expressly provides an exception to the prohibition when it is "otherwise provided by a collective bargaining agreement." Here, the Basic Labor Agreement, a collective bargaining agreement, specifically "otherwise provide[s]": that upon [196 Cal.Rptr. 882] retirement an employee who is entitled to the "special payment" under the Pension Agreement does not receive vacation or vacation pay for accrued, unused vacation.
Petitioners also argue: "The special payment depends on only two factors: how many weeks of vacation pay an employee is entitled to and how many he actually took in the year before his retirement.... [p] ... [I]f the employee takes any of his vacation prior to retirement, that much vacation pay is deducted from the Special Payment he receives; if he does not take his vacation he 'forfeits' it, only to get it back as part of his special payment. [p] What was earned as vacation pay is, upon retirement, merely relabeled and turned into part of the special payment. The two are exact equivalents: if a week of vacation pay is received, that same week of special payment is lost, and vice versa. While the label applied to it may change, both the nature and the amount of what was earned as vested vacation pay remains the same." Again, not so.
While what petitioners say is largely true as to some retirees, it is not true as to others, and their assertion that the amount of the "special payment" depends on only two factors, the number of weeks of vacation pay to which the retiree was entitled and how many weeks of vacation the retiree actually took in the year before his retirement is not accurate. The provisions of the Pension Agreement make the "special payment" payable in many instances even when the retiree was not entitled to vacation in the year preceding retirement. Subparagraph (b) of paragraph 3.2 provides: "The amount of special payment for a participant not in any event entitled to vacation in the year of retirement shall be calculated ... as though the participant had retired in the year in which he was last entitled to a vacation." (Emphasis added [see fn. 3, ante ].) Additionally, subparagraph (d) of paragraph 3.2 provides: "With respect to any participant referred to in the proviso contained in paragraph 1.1(i), if any such participant makes application for pension in a year in which he is not in any event entitled to vacation, for the purpose of determining the amount of his special payment, the vacation pay to which he would have been entitled had he not been on leave of absence shall be used for determination of the rate to be used in calculating the special payment and the amount deductible therefrom for vacation." (Emphasis added [see fn. 3, ante ].)
It appears, therefore, that the "special payment" is not vacation pay under another label but, rather, only that the amount of the "special payment" is measured in terms of vacation pay.
Similarly unmeritorious is petitioners' contention that the special payment constitutes "severance pay." Paragraph 3.9 of the Pension Agreement provides for the deduction of severance pay from an employee's regular pension. If, as suggested by petitioners, the "special payment" is severance pay, then the amount of the "special payment" would be deductible from the regular pension. As is aptly pointed out by the Board in its reply brief, it would be "nonsensical for a union to negotiate a special payment or 'severance pay' only to later agree as part of the Pension Agreement that the employer may deduct the amount from the regular pension."
The two cases relied on by petitioners in support of the "severance pay" argument are of no assistance. In both cases, Powell v. California Dept. of Employment (1965) 63 Cal.2d 103, 45 Cal.Rptr. 136, 403 P.2d 392, and Citroen Cars Corp. v. Unemployment Ins. Appeals Bd. (1980) 107 Cal.App.3d 945, 165 Cal.Rptr. 924, the question before the respective courts was whether severance payments supplemented unemployment benefits within the meaning of section 1265. There was no issue as to the characterization of the payment as is the case here, but only as to the effect of the payment, i.e., whether severance pay supplemented unemployment benefits.
Petitioners also advance the argument that the "special payment" may not be labelled "pension" because it does not meet the requirements set forth by federal law, e.g., the "special payment" is paid only once and is forfeited upon reemployment with [196 Cal.Rptr. 883] Kaiser. Petitioners argue that under section 203, subdivision (a)(3)(B), of the Employment Retirement Income Security Act of 1974 (ERISA), as amended 29 U.S.C. § 1053, subdivision (a)(3)(B), pension payments may not be forfeited upon reemployment. Furthermore, petitioners state, the special payment is not governed by any of the provisions of ERISA relating to vesting, accrual of benefits, provisions for election of joint and survivor annuity benefits, breaks in service, etc. [29 U.S.C. §§ 1053, 1054, 1055]. Thus, it is argued, if the special payment is a pension it "violates virtually every substantive provision of ERISA regulating the way in which such benefits are to be determined."
Petitioners' argument presupposes that all pension plans are subject to the provisions of ERISA. However, that is not so. The sections cited by petitioners apply to any employee benefit plan not otherwise exempted under 29 U.S.C. section 1003, subdivision (b). (29 U.S.C. § 1051.) Petitioners have not shown the "special payment" is not exempt.
We conclude the "special payment" is neither vacation nor severance pay and is properly characterized as a "pension" payment subject to offset against unemployment benefits under section 1255.3.
Allocation of the Special Payment
Petitioners next contend that even if the "special payment" is properly characterized as a pension payment, the Board improperly allocated the payment to the entire three-month period following retirement rather than to the single week in which it was paid.
The Board's allocation of the special payments was based primarily upon the terms of the pension agreement which provides in relevant part: "The special payment shall be payable for the first three full calendar months following the month in which retirement occurs. Such special payment shall be made in a lump sum within the first full calendar month following the month in which retirement occurs ...." (See fn. 3, ante.) Petitioners request this court to take judicial notice of Field Office Directive No. 80-223 which sets forth operating procedures to be used in the Department's application of section 1255.3. Under the provisions of the directive, lump sum pension payments are to be allocated only to the week in which they are payable. Petitioners argue the Board was required to follow the policy set forth in the directive, and its failure to do so was "arbitrary and capricious, and opens up troubling possibilities of discrimination and denial of adequate notice for those persons affected by the Board's unannounced and unexplained change in policy." It is the position of the Board that the directive, developed by the Employment Development Department, was designed solely for internal use by the Department and therefore is not a regulation the Board is bound to follow.
The directive provides in part:
Whether the directive constituted a regulation the Board was otherwise required to follow need not be determined by this court, because under the particular circumstances presented the application of the directive would have been inconsistent with the provisions of the statute. Subdivision (a) of section 1255.3 requires that "... the amount of unemployment compensation benefits ... be reduced ... by an amount equal to the amount of such pension ... which is reasonably attributable to such week." (Emphasis added.) By its terms, the directive would require the allocation of the entire lump sum payment to a single week, regardless of whether or not it would reasonable to do so.
The Board also points out that acceptance of the position that lump sum payments should be allocated to one week could result in virtual evasion of the terms of section 1255.3. "Workers through their union, could negotiate quarterly pension payments rather than the more typical weekly or monthly payments. Thus, a worker might receive four lump sum payments per year and then claim he is entitled to unemployment insurance benefits for all but the four weeks of the year."
[196 Cal.Rptr. 884]Upon retirement, petitioner Goist received a lump sum special payment of $4,098; petitioner Weitzeil received $4,015; and petitioner Evans received $7,301.65. The Board contends, and we agree, that it would not be reasonable to attribute the entire amount the retirees received to one week. Allocating $4,000 over a 3-month period (13 weeks), which amounts to approximately $308 per week, is reasonable. A fortiori as to the $7,301.65. Therefore, to the extent that the Field Office directive would require an unreasonable allocation of lump sum pension benefits it is inconsistent with section 1255.3 and the Board was not required to follow it.
Finally, petitioners contend that even if the Board was free to disregard the Field Office directive, the method of allocation used, that is, allocating the lump sum payment to the entire three-month period, was unfair and resulted in hardship. By way of illustration, petitioners point to petitioner Goist's case. In the year of his retirement Goist was entitled to a total of 13 weeks of vacation. However, because he took five weeks of vacation prior to retirement, his special payment was equal to eight weeks' of vacation pay. Petitioners argue that allocating the equivalent of eight weeks' vacation pay over a period of 13 weeks penalizes Goist for taking five weeks of his vacation prior to retirement.
Petitioners also urge the allocation of benefits should bear some relation to the nature and amount of the benefits being allocated. Although the argument is not expressly made, petitioners seem to be contending that if the allocation of the "special payment" to one week is unreasonable, its allocation to the entire three-month period is also unreasonable and that there should be some correlation between the number of weeks of vacation pay used to determine the special payment, and the number of weeks to which such pay is allocable. Thus, a "special payment" based on eight weeks of vacation pay and/or adjusted vacation pay would be allocated to an eight-week period following retirement and the retiree would be entitled to full unemployment insurance benefits for the remaining five weeks.
While these arguments are not unreasonable a priori, they are fatally flawed; they are based on the assumption that the "special payment" constitutes vacation pay or a substitution for vacation pay. We have already determined that it is not. It is, as the pension agreement provides, a special pension payment "payable for the first three full calendar months following the month in which retirement occurs." The number of weeks of vacation to which an employee may have been entitled is relevant only to the determination of the amount of the "special payment," not to determining the time period to which the "special payment" is allocated. The period to which the "special payment" is to be allocated is predetermined by the express terms of the Pension Agreement as the first three months following retirement. (See fn. 3, ante.) We therefore conclude the special payment was properly allocated to the entire three-month period.
Limitation on Offset to Amount of Increase in Pension Benefits Earned during Base Period
California enacted section 1255.3 in response to Congress' enactment in 1976 of 26 U.S.C. § 3304, subdivision (a)(15), requiring all states offering unemployment benefits to offset against such benefits pension, retirement or retired pay, annuity or other similar periodic payments. On August 26, 1980, in anticipation of an amendment to the federal statute, the California Legislature amended section 1255.3 to provide in pertinent part: "The reduction of benefits specified in subdivision (a) shall be limited by the provisions of any amendment to paragraph (15) of Section 3304(a) of the Federal Unemployment Tax Act, enacted [196 Cal.Rptr. 885] before January 1, 1981, which mandates or permits a limitation on the reduction of unemployment compensation benefits by the amount of a pension, retirement or retired pay to an individual, as described in subdivision (a)." (§ 1255.3, subd. (c).)
In 1980 Congress amended 26 U.S.C. § 3304, subdivision (a)(15), to read in pertinent part: " § 3304--Approval of State laws [p] (a) Requirements--The Secretary of Labor shall approve any State law submitted to him, within 30 days of such submission, which he finds provides that ... [p] (15) the amount of compensation payable to an individual for any week which begins after March 31, 1980, and which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment which is based on the previous work of such individual shall be reduced (but not below zero) by an amount equal to the amount of such pension, ... which is reasonably attributable to such week except that--[p] (A) the requirements of this paragraph shall apply to any pension ... only if --[p] (i) such pension ... or similar payment is under a plan maintained (or contributed to) by a base period employer or chargeable employer (as determined under applicable law), and [p] (ii) in the case of such a payment not made under the Social Security Act or the Railroad Retirement Act of 1974 ..., services performed for such employer by the individual after the beginning of the base period (or remuneration for such services) affect eligibility for, or increase the amount of, such pension ... or similar payment, and [p] (B) the State law may provide for limitations on the amount of any such a reduction to take into account contributions made by the individual for the pension, ... or other similar periodic payment ...." (Emphasis added.)
Petitioners interpret the amended federal statute as limiting the amount that may be offset against unemployment insurance benefits to the increase in pension benefits earned (i.e., the amount of pension benefits accrued) during the base period. We do not agree.
The amended federal statute does not purport to limit the amount of offset to the increase in pension benefits earned during the base period. Rather, it mandates that no offset is to be made at all unless two conditions are met: (1) only if the pension or payment to be offset is under a plan maintained or contributed by a base period employer or the chargeable employer and (2) only if the services performed for that employer by the individual after the beginning of the base period affected his or her eligibility for or increased the amount of the pension or payment to be offset.
Prior to the 1980 amendment, states could offset an unemployment insurance claimant's pension against his current benefits even though his current benefits were being drawn against the unemployment insurance account of an employer who did not contribute to the pension that was the subject of the offset. It was primarily that inequity which Congress sought to remedy by the 1980 amendment.
There is no evidence either in the language of the statute itself or in the legislative history to suggest that the purpose of subparagraph (A)(ii) was to limit the amount of pension subject to the offset to the increase in pension benefits earned during the base period. The federal courts [196 Cal.Rptr. 886] have recently confronted this very issue and concluded that the entire pension, not just the incremental increase, is to be offset against unemployment insurance benefits. (Rivera v. Becerra, supra, 714 F.2d 887, 893-894, affirming on this point Rivera v. Patino (N.D.Cal.1982) 543 F.Supp. 1160, 1167-1172.)
In comments published in the Congressional Record Representative Weise stated: "This provision [ (A)(i) ] stipulates that unemployment compensation will only be offset by pension or other retirement benefits when those benefits are being maintained or contributed to by the same employer who is considered the base period employer, that is, a period just prior to unemployment on which unemployment insurance benefits are calculated, and only if [as provided by (A)(ii) ] services performed during the base period altered the individual's eligibility for pension benefits or increased the benefit amount." (126 Cong. Record House 7905 (Aug. 26, 1980).)
Dismissal of the Petitions as to the Union
The union joined as a co-petitioner in each of the three petitions for writ of mandate. The trial court concluded the union lacked the necessary beneficial interest to obtain in its own right a writ of mandate to compel the Board to order the payment of unemployment insurance benefits to the individual petitioners, particularly in view of the fact that each of the affected petitioners had sought a writ of mandate in his own right.
Petitioners contend the union has a substantial interest in the application of the Unemployment Insurance Code to a pension agreement to which it is a party as well as the interpretation of that agreement by the Department and the Board. Petitioners also contend the trial court should have allowed the union leave to amend its pleadings to assert those interests.
The Board, on the other hand, argues the union cannot state a cause of action for mandamus based on an unemployment benefits decision adverse to certain of its members where the adverse decision does not invade any specific right of the union and where the union does not request any relief of its own. The Board relies principally upon the authority of International Union of United Auto. etc. Workers v. Department of Human Resources Dev. (1976) 58 Cal.App.3d 924, 130 Cal.Rptr. 368.
In International Union, certain members of the UAW were denied unemployment benefits for the periods of time during which each of these members traveled outside of California. The Department denied the benefits on the ground that voluntary absenteeism from the state violated the "available for work" clause of Unemployment Insurance Code section 1253, subdivision (c). In affirming the decision of the trial court dismissing the UAW's petition for writ of mandate, the court held that while a union could bring an action on behalf of its individual members injured by the wrongful denial of benefits, the immediate action named the injured members themselves as petitioners. Therefore, the court concluded, the union was an "unnecessary party which here fails to state a cause of action." (Id., at p. 935, 130 Cal.Rptr. 368.)
Petitioners urge this court to disregard International Union on the grounds that it was "wrongly decided" and in any event is distinguishable from the present case. We do not agree. First, because the union in International Union, supra, failed to show the invasion of any substantial right, the court properly determined that no cause of action had been stated. It is fundamental that a party seeking a writ of mandate must demonstrate a beneficial interest in the issuance of the writ (Code Civ.Proc., § 1086; see also Parker v. Bowron (1953) 40 Cal.2d 344, 351, 254 P.2d 6; McDonald v. Stockton Met. Transit Dist. (1973) 36 Cal.App.3d 436, 440, 111 Cal.Rptr. 637.) Second, in the present case, although the union has an interest in the interpretation of its collective bargaining agreement which might have supported an action for declaratory relief, it has not demonstrated that any substantial right of its own is involved in this mandate proceeding or that in its own right it would have any beneficial interest in the issuance of the writ. To [196 Cal.Rptr. 887] the extent the union might have been entitled to declaratory relief this opinion provides it and any possible error in the court's ruling cannot be deemed prejudicial and does not warrant reversal.
Petitioners' Claim to Attorney Fees
Government Code section 800 provides for the recovery of attorney fees incurred in a civil action challenging the determination of an administrative agency where the challenging party has prevailed and it is shown that the action of the administrative agency was arbitrary or capricious. Here, petitioners have not prevailed and, far from being arbitrary and capricious, the Board's action and determination were sound.
Disposition
The judgments are affirmed.
MORRIS, P.J., and McDANIEL, J., concur.
During the relevant period, Unemployment Insurance Code section 1255.3 provided in pertinent part: "(a) Except as provided by subdivision (c), the amount of unemployment compensation benefits, extended duration benefits, and federal-state extended benefits payable to an individual for any week which begins after March 31, 1980, and which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment which is based on the previous work of such individual shall be reduced, but not below zero, by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment, which is reasonably attributable to such week.
"...
"(c) The reduction of benefits specified in subdivision (a) shall be limited by the provisions of any amendment to paragraph (15) of Section 3304(a) of the Federal Unemployment Tax Act, enacted before January 1, 1981, which mandates or permits a limitation on the reduction of unemployment compensation benefits by the amount of a pension, retirement or retired pay to an individual, as described in subdivision (a). This subdivision shall only apply to benefits paid after the effective date of the amendment to paragraph (15) of Section 3304(a) of the Federal Unemployment Tax Act."
"STATEMENT OF DECISION ... [p] 3. The weight of the evidence supports the conclusion that the lump sum is a pension payment which is subject to the provisions of Unemployment Insurance Code section 1255.3 and is not severance or vacation pay which is subject to Unemployment Insurance Code sections 1265 or 1265.5. [p] 4. Severance pay has been given a specific meaning ... in the Basic Agreement covering employment. The term 'vacation' as it is used in the pension agreement is only for the purpose of guaging [sic] the amount payable as a lump sum special payment. It is a 'rule of thumb.' [p] 5. The weight of the evidence supports the manner in which [the Board] offset [the] lump sum pension payment against ... unemployment insurance benefits. [p] 6. Petitioner United Steelworkers of America, AFL-CIO-CLC has not and cannot state that its rights have been invaded or violated by [the Board's] decision. Therefore, petitioner union fails to state a cause of action."
"Special Payment
"3.2 (a) The amount of special payment for a participant who was entitled to receive a vacation in the year of retirement or who would have been entitled to receive a vacation in the year of retirement except for such retirement shall be calculated as follows:
"(1) The number of weeks of vacation to which the participant was or would have been entitled will be determined.
"(2) The number determined in (1) above shall be subtracted from 13.
"(3) The number determined in (1) above shall be multiplied by the participant's vacation pay.
"(4) The result determined in (2) above shall be multiplied by the participant's adjusted vacation pay.
"(5) The amounts calculated in (3) and (4) above shall be added together and then reduced by all vacation pay the participant received in such year.
"(b) The amount of special payment for a participant not in any event entitled to vacation in the year of retirement shall be calculated under the formula established in (a) above as though the participant had retired in the year in which he was last entitled to a vacation.
"(c) The special payment shall be payable for the first three full calendar months following the month in which retirement occurs. Such special payment shall be made in a lump sum within the first full calendar month following the month in which retirement occurs or within the month following the month in which application for pension is made, whichever is later.
"(d) With respect to any participant referred to in the proviso contained in paragraph 1.1(i), if any such participant makes application for pension in a year in which he is not in any event entitled to vacation, for the purpose of determining the amount of his special payment, the vacation pay to which he would have been entitled had he not been on leave of absence shall be used for determination of the rate to be used in calculating the special payment and the amount deductible therefrom for vacation.
"(e) As used in this Agreement the word 'vacation' means the vacation provided under the vacation section of the Basic Agreement, 'vacation pay' means the pay for a week of vacation calculated as provided in the vacation section of the Basic Agreement and 'adjusted vacation pay' means the vacation pay reduced by the amount of such pay which results from a Cost-of-Living Adjustment other than the first Cost-of-Living Adjustment included in the base hourly or salary rates subsequent to April 30, 1974."
"[Subdivision] b. Lump Sum Payments: For pensions payable in lump sum, upon retirement, allocate the entire deductible portion of the lump-sum payment to the week following the last week worked. For example, a claimant last works on November 4, 1980 and, under the company pension plan, is paid $50,000 in a lump-sum payment. It is determined that the total amount is deductible pension income and therefore, $50,000 is allocated to the week ending November 15, 1980."
Even more significantly, Senator Bradley, at a joint conference committee meeting, gave the following example explaining the operation of (A)(i) and (A)(ii): "A worker at company A retires at age 65 after 35 years of service there and begins collecting a pension of $600 per month. He then unsuccessfully seeks new employment and files an unemployment insurance claim. The State computes this individual's unemployment benefit rate at $130 per week, or $520 per month, because of the past earnings reported to the State. This individual would not be eligible for unemployment insurance payments because the amount of the pension received from the base period employer exceeded the unemployment insurance payments that were to be paid." (See Rivera v. Becerra (9th Cir.1983) 714 F.2d 887, 894.)
In this example the entire amount of pension is offset against unemployment insurance benefits without regard to the fraction of the pension attributable to the base period.