# Gardner v. Director of Employment > California Supreme Court · November 10, 1959 · 53 Cal. 2d 23 URL: https://www.frixlaw.com/law-library/cases/9627045 ## Case - **Full name:** CAROLYN H. GARDNER Et Al., Respondents, v. STATE OF CALIFORNIA DIRECTOR OF EMPLOYMENT Et Al., Appellants - **Court:** California Supreme Court - **Decided:** November 10, 1959 - **Citations:** 53 Cal. 2d 23; 346 P.2d 193; 1959 Cal. LEXIS 316 - **Precedential status:** Published - **Opinion:** Dissent by Peters - **Judges:** Schauer, Traynor, Peters - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9627045 ## Opinion text PETERS, J. I dissent. The majority of this court, by judicially amending section 1262 of the Unemployment Insurance Code, 1 have denied to *31 employees who want to work and are desirous of doing so but who are locked out of their employment by their employers, the benefits of unemployment insurance conferred upon them by the statute. This is done by simply holding, contrary to the fact, and contrary to the realities of the situation, that employees “voluntarily” leave their work when a strike is called by the union against several employers, and other employers, not struck, close their plants pursuant to an agreement among the employers that a “strike against one is a strike against all. ’ ’ Thus, employees who are willing to work and who are not on strike are prevented from collecting unemployment insurance by a unilateral agreement between employers to which the employees are not parties. The employers may, of course, legally enter into such an agreement, but to hold that, in such event, the employees of the non-struck plants left their work “voluntarily,” and were not the victims of a “lock out” is to disregard the ordinary, plain and proper meaning of these two terms. It is judicial legislation of the most obvious type. This result is reached on the authority of McKinley v. California Emp. Stab. Com., 34 Cal.2d 239 [ 209 P.2d 602 ]. It is true that in that ease the four justices then constituting a majority of this court so interpreted the statute. This interpretation was just as wrong then as it is now. This was clearly pointed out in the dissents of Chief Justice Gibson ( 34 Cal.2d at p. 252 ) 2 and of Justice Carter ( 34 Cal.2d 263 ). We are now told by the majority that, because four members of this court reached this result in McKinley , we should not reappraise that result because to do so will interfere with the “certainty” of the law. “Certainty” in the law is a desirable concept, but it is not the only principle that should govern appellate action. I certainly agree that, once this court has decided an issue, even if it be by a bare majority, the decision thus reached should be followed in subsequent cases unless there are compelling reasons why it should not. It is undeniably true that every decision of the court should not be reconsidered simply because of a change of personnel in the court. Stare decisis is an important doctrine. But it is equally true that it is not the function of a Supreme Court justice to sit back in every case and automatically perpetuate the errors of his predecessors simply because those errors were once approved. Where a prior decision is clearly *32 wrong, where it has done a great injustice to a large segment of our population, and where an important issue is at stake a judge should not hesitate to reevaluate, to reconsider, and, if necessary, to overrule prior decisions. This is such a case. This court adopted and properly applied the so-called volitional test in interpreting section 1256 of the Insurance Code in Bodinson Mfg. Co. v. California Emp. Com., 17 Cal.2d 321 [ 109 P.2d 935 ], and in Bunny’s Waffle Shop v. California Emp. Com., 24 Cal.2d 735 [ 151 P.2d 224 ]. These holdings were misinterpreted and misapplied in the McKinley case. That misinterpretation and misapplication of the statute is being perpetuated by the majority opinion in the present case. The proper interpretation and application of the statute were clearly and correctly pointed out by Chief Justice Gibson and by Justice Carter in their dissents in the McKinley case. I can add nothing material to what is there said. I base my dissent on the views there expressed. Suffice it to say that if the majority are correct they have placed in the hands of the employers the means of denying unemployment benefits to a large segment of labor. If the majority are correct, an overall employers’ asoeiation in any particular area can simply adopt by unilateral action a policy that a “strike against one is a strike against all.” Then if a strike is called against one, and there is a general lockout, all labor thus locked out will be deprived of the benefits of a statute passed for their benefit. This is not what the act provides or intends. I would affirm the decision of the trial court. Respondents’ petition for a rehearing was denied December 10, 1959. Peters, J., was of the opinion that the petition should be granted. Formerly section 56 of the Unemployment Insurance Act. In which dissent Justice Traynor joined. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9627045. Public record. Not legal advice.