STATE OF WISCONSIN
BEFORE THE
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

DAVID A. BROUGHTON, Employee

Involving the account of

IMPORT MOTORS OF RACINE, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 78-A-60204 MR


The employe filed a timely petition for review by the Labor and Industry Review Commission of an appeal tribunal decision which suspended benefits on the ground that the employe terminated his employment with the employer.

Based on the records, evidence and law applicable to this case and after receiving benefit of the examiner's comments on the credibility of witnesses, the Labor and Industry Review Commission makes the following

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about three years as a service mechanic for the employer, a company engaged in the sales and service of new and used foreign automobiles. His last day of work was December 16, 1977 (week 51).

At about 10:30 a.m. on December 16, 1977, the employer notified the shop foreman that he was being replaced and did not respond to his question whether that meant he was fired. He reasonably understood this to mean that his employment with the employer was terminated and he so informed the mechanics, including the employe, under his supervision. The employe and other mechanics under the supervision of the shop foreman, acting in concert, then contacted the management personnel of the employer and requested an explanation of why the shop foreman's employment was terminated. When the employer's management personnel would not give any explanation why the shop foreman's employment was terminated, the employe contacted a union representative and was instructed to come in and sign up for union affiliation.

When the employe and his co-workers told the employer's management representatives that they intended to sign up with a union as they all feared discharge, the employer's service manager told them that anyone who signed up with the union would be fired and that a new crew would be ready for work the following Monday. They had intended to wait until noon break to make their union affiliation but upon being told that they would be fired if they joined the, union, the employe, along with other service mechanics and the shop foreman, then punched out about one-half hour before their noon break, and went directly to the union hall where they joined the union.

At the time the employe and his co-workers left the employer's establishment a bona fide labor dispute was in active progress in such establishment and their leaving was because of the employer's refusal to discuss the discharge of their immediate supervisor and their desire to obtain union representation. After signing up with the union, the employe and his co-workers did not return to work as the employer had told them they were discharged if they joined the union. The employe did not at any time tell the employer that he was quitting and he had no intention of quitting. He did not quit. The employer-employe relationship was terminated by the employer because of the employe's participation in a labor dispute on December 16, 1977.

Section 108.04(10) of the statutes provides, as follows:

"(10) Labor Dispute. An employe who has left (or partially or totally lost) his employment with an employing unit because of a strike or other bona fide labor dispute shall not be eligible for benefits from such (or any previous) employer's account for any week in which such strike or other bona fide labor dispute is in active progress in the establishment in which he is or was employed."

Employes are free to strike and withhold their services from an employer at any time they choose to do so and while on strike they are ineligible for unemployment benefit payments. However, the freedom to strike does not render them immune from discharge by the employer. An employer has a right to discharge a striking employe at any time during the active progress of the strike and if a discharge occurs, section 108.04(10) Supra, (the labor dispute provision) no longer affords the employer protection from becoming liable for the payment of unemployment compensation if such discharge is not for misconduct connected with an employe's employment. Marathon Electric Mfg. Corp. v. Jones et. al. and Ind. Com., 269 Wis. 394 (1955). In Marathon, the Court said, in part, at pages 407 and 408, as follows:

"If the employer during the progress of such dispute elects to terminate the employe status of any employe by discharging him, the possible liability of the employer's account for unemployment compensation benefits to such discharged employe is governed by the portions of section 108.04, other than sub. (10), applicable to cases of absolute termination of employment. For example, if the ground of discharge is alleged misconduct, the applicable subsection which governs is section 108.04(5) and it is immaterial whether or not such discharge is based on conduct of the employe having a direct relation to the labor dispute.

"This construction of section 108.04(10), stats., is in keeping with the legislative policy underlining its enactment of protecting employers against having to finance a strike against themselves, as would be the case if their accounts were liable for the payment of unemployment compensation benefits to their employes while absent from work during the course of the dispute. The employer receives a full benefit of the protection of this subsection during the progress of the labor dispute so long as it does not take affirmative action to end the employe status of the employe. If it does elect to terminate such status during the progress of the labor dispute the reason for the affording of such protection disappears. In other words, it seems to us that one of the purposes of section 108.04(10) is to preserve the status quo during the course of a labor dispute so that at it's cessation the parties thereto stand in the same relation to each other as at its beginning insofar as payment of benefits under the act is concerned. When the active progress of the dispute has ended, those employes who return to work receive no benefits, while those offering to return but are not accepted by the employer then become eligible for benefits. There is no good reason why an employee, who has been wrongfully discharged weeks or months before the ending of the progress of the dispute, should be barred from benefits during the time that the dispute continued in progress following such discharge."

Accordingly, the eligibility of the employe involved herein for the payment of unemployment compensation is not to be determined under the labor dispute section of the unemployment compensation law (section 108.04(10)) but under section 108.04(5) Stats., relating to discharge for misconduct connected with employment. (Since it cannot be deemed that he quit under section 108.04(7) of the statutes.)

While the employer might well have considered the employe's leaving his place of work one-half hour before the start of his lunch break as unsatisfactory conduct, it was a single isolated instance of unsatisfactory conduct not of such magnitude or recurrence as would amount to misconduct connected with his employment as that term "misconduct" is defined in Boynton Cab Co. v. Neubeck, 237 Wis. 249. Furthermore, such conduct was provoked by the employer's notice to the employe that he would be discharged if he joined the union.

It is clear that the employer terminated the employment relationship with the employe in connection with a bona fide labor dispute and at the start of a strike, and that he would be considered as a "former employe", if, and when, he affiliated with the union.

The Commission therefore finds that the employe did not terminate his employment in week 51 of 1977, within the meaning of section 108.04(7)(a) of the statutes.

The Commission further finds that the employe was not discharged for misconduct connected with his employment, within the meaning of section 108.04(5) of the statutes.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits starting in week 1 of 1977, if otherwise qualified.

Dated and mailed November 1, 1978
112 : 015    LD 570

/s/ Virginia B. Hart, Chairman

/s/ John R. Hayon, Commissioner

/s/ Hugh C. Henderson, Commissioner

 

NOTE: The Commission considers that the appeal tribunal erred in finding that the employe quit where the evidence clearly established that the employe had no intention of quitting but was terminated by the employer as a result of a bona fide labor dispute in active progress at the time of the termination of employment. However, if the employe had quit his employment under these circumstances, the Commission would have considered that had good cause for quitting where a threat of discharge was used to discourage union affiliation. Applying section 108.04(7)(b) Stats. The Commission considers that the examiner failed to give consideration to the application of the rationale of the Marathon Electric Mfg. Corp. v. Jones case mentioned herein (supra) and that as a matter of law the employe's conduct for which he was discharged did not constitute misconduct connected with his employment.


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