I dissent.
The evidence supports the trial court’s conclusion that the claimants were out of work because of a discharge by the employer rather than a trade dispute.
After January 17, 1946, is the crucial period, for the employer closed the plant. After the plant was closed each of the claimants received from the company a notice which was in form as follows:
‘‘ THE PACIFIC LUMBER COMPANY FORM 2105 EMPLOYMENT TERMINATION
The employee must present this slip to the Employment Office at Scotia within two days from date of issue.
Employee_ No__B
Working- Occupation_
Rate_Date Last Worked—__ No. hours_
Date Terminated_._____
Signed-Noted_
Foreman Timekeeper
Employee’s Signature_’ ’
*509The forms, signed by the company’s foreman, were appropriately filled out with respect to each claimant, the “date terminated” being stated as January 18, 1946. The trial court found and concluded that the claimants were given the termination notices because they refused to go through the picket line; that the notices were used in this case for the purpose of terminating claimants’ employment and amounted to an unequivocal discharge; and that this discharge interposed a new intervening cause for claimants’ unemployment, relieving them after January 18, 1946, from any disqualification imposed by section 56 of the Unemployment Insurance Act.
It is conceded that the evidence is sufficient to support the trial court’s finding that claimants were unequivocally discharged as of January 18th, and that they were employees of the company until that date, since their refusal to cross the picket line did not terminate the employer-employee relationship. (See Mark Hopkins, Inc. v. California Emp. Com., 24 Cal.2d 744, 749, 751 [151 P.2d 229, 154 A.L.R. 1081].) This is clear for the “employment termination” notices were unqualified and plainly indicated that there was a discharge as of the designated date. One claimant who refused to cross the picket line was told by his immediate supervisor that he was “through,” that after the strike was over he would have no job, and that the supervisor would see to it that the claimant would not receive “compensation.” Claimants were given their 1946 federal withholding tax statements, which, under the Internal Revenue Code, need not have been furnished until termination of employment or until January 31st of the succeeding year. (26 U.S.C.A. §1625[a].) Defendants rely on testimony that the company did not intend to discharge claimants but only to terminate their “continuous employment period” for purposes of the company’s bonus plan. As the court found, however, no such limited purpose was indicated on any of the notices, and the testimony merely presented a conflict in the evidence which was resolved in favor of claimants.
The majority opinion holds, however, that the discharge was not the proximate cause of the unemployment after January 18th, contrary to the trial court’s finding. With that I disagree. The record supports the determination of the trial court that the discharge of claimants on January *51018, 1946, interposed a new, intervening cause for their unemployment. The fact that claimants were unemployed because of a trade dispute from January 14th through January 17th did not preclude them from becoming entitled to benefits after that date if continuation of their unemployment was due to factors other than their participation in the trade dispute. The disqualification exists only during the period in which the dispute remains the cause of the unemployment. (Section 56 of the act; see Mark Hopkins, Inc. v. California Emp. Com., 24 Cal.2d 744, 748-750 [151 P.2d 229, 154 A.L.R. 1081].)
The company’s act of discharging claimants completely changed the nature of their unemployment, insofar as their status under section 56 is concerned. Disqualification under this statute depends upon the fact of voluntary action by the worker. (See Matson Terminals, Inc. v. California Emp. Com., 24 Cal.2d 695, 702-704 [151 P.2d 202]; Bodinson Mfg. Co. v. California Emp. Com., 17 Cal.2d 321, 327-328 [109 P.2d 935]; see, also, McKinley v. California Emp. Stab. Com., 34 Cal.2d 239, 242-245, 252 [209 P.2d 602].) An employee who observes a picket line is disqualified on the theory that he has a free “choice” in determining whether to work in a plant in which certain of his fellow employees are on strike, and that his decision not to work is voluntary. (Bodinson Mfg. Co. v. California Emp. Com., 17 Cal.2d 321, 327-328 [109 P.2d 935] ; Matson Terminals Inc. v. California Emp. Com., 24 Cal.2d 695, 702-704 [151 P.2d 202].) He nevertheless remains an employee, regardless of the strike and picketing (see Mark Hopkins, Inc. v. California Emp. Com., 24 Cal.2d 744, 749, 751 [151 P.2d 229, 154 A.L.R. 1081]), and he can return to work at any time he becomes willing to do so. Where, as here, however, the employer discharges some of its employees, such persons no longer have the choice of returning to their jobs, and it cannot be said that their subsequent unemployment is due to their voluntarily continuing out of work because of a picket line. Unlike persons who remain employees, they have no reasonable expectation of going back to work upon termination of the trade dispute, and if they do obtain work with the same employer, they will have to be rehired and will come in as new employees. It thus seems apparent that section 56 ceases to operate with respect to workers whose employment relationship has been wholly severed, and it can have no bearing on *511their right to benefits until they are reemployed, upon mutual agreement.
Defendants contend that two notices given by the company show that claimants voluntarily remained away from their jobs because of the trade dispute. One notice, dated January 21, 1946, requested “all Employees and former Employees not working because of the strike” to return to work immediately or as soon as strike conditions ceased to exist, stated that “you are still employees of the Company” and repeated the request to return to work. These requests, how-The second notice, given about a month after the discharge, ever, did not alter the fact that claimants were discharged nor did they serve to restore the employment relationship, and, as we have seen, if anyone had returned to work in response to the requests, he would have done so as a new employee.
Unlike the situation presented in McKinley v. California Emp. Com., 34 Cal.2d 239 [209 P.2d 602], relied upon by defendants, the record does not establish that claimants engaged in any conduct which they knew would cause the company to retaliate by preventing their return to work. The court impliedly found, and the finding is based upon substantial evidence, that claimants did not know that refusal to cross the picket line would result in their discharge. Such conduct ordinarily suspends but does not terminate the employment relationship, and the company gave no warning that claimants would be discharged. The company had adopted a rule which provided that an employee who was absent for over three days without permission “shall be dropped from the Company’s payroll and employment period terminated,” but the rule was contained in a printed booklet entitled “Continuous Service Compensation Plan” and may reasonably be interpreted as pertaining only to that plan.
Further, it does not appear that claimants’ conduct caused the plant to be closed on January 18, 1946, or to remain closed thereafter. The record supports the finding that the plant was closed by the absence of certain key men necessary to the operation of said mill, but does not establish that claimants were the key men. Even if we assume that the strike caused the absence of the key men, claimants were not members of the same local union to which the strikers belonged, and there is nothing to show that claimants voted *512for or authorized the strike or that the key men were absent because some of the claimants participated in the picketing.
I would, therefore, affirm the judgment.
Respondent’s petition for a rehearing was denied September 25, 1952. Carter, J., was of the opinion that the petition should be granted.