In the matter of the unemployment benefit claims of

RICHARD J. ANDRZEJCZAK et al., Employees

Involving the account of

TED W. BETLEY, INC., Employer

Initial determinations, issued by deputies of the Department of Industry, Labor and Human Relations held that each employe terminated his employment with the employer in week 33 of 1977 (the week ending on August 13).  Accordingly, each employe's eligibility for unemployment compensation benefits was suspended beginning in that week. Each of these employer then filed a timely appeal and request for hearing.

Pursuant to those appeals, hearing was held before an appeal tribunal of the department on October 10, 1977. The appeal tribunal then issued a decision in each case holding that each employs was discharged for misconduct connected with his employment in week 34 of 1977 (the week ending on August 20). Accordingly, benefits were denied to each employs. Each employe then filed a timely petition for review of that appeal tribunal decision by the Commission.

Based on the applicable records, law and evidence in this case, the Commission makes the following

The employes worked for varying periods as drivers for the employer, the operator of a courier service. They last worked for the employer on August 12, 1977 (week 33), when each of them became unemployed. They subsequently registered for work at a public employment office and filed claims for unemployment compensation benefits.

The normal duties of the employer's drivers included transportation of cancelled checks from banks and check processing centers to clearing house banks or computer centers. Most of the checks were picked up by the drivers from various banks and delivered after regular banking hours. The employer provided the drivers with distinctive jackets and other identification so that they could account for their entry into banks to local police authorities.

A number of the employer's drivers became dissatisfied with their wages, hours and working conditions. A group of about nine drivers assembled on August 6, 1977, and chose one of their number as their representative in presenting a written list of grievances to the employer for consideration. This representative presented these grievances to the owner of the employer corporation on or about August 11, 1977. At that time the owner informed the representative that he would be unable to meet the grievance demands. The representative then arranged for a meeting of the drivers in question with the owner on August 14, 1977. Following a meeting of about two hours duration on August 14, the drivers left. They were dissatisfied with the owner's response to their grievances and they resolved not to work further for the employer.

With the exception of Richard J. Andrzejczak, who was to be on vacation leave during the week of August 14 to August 20, 1977 (week 34), each of these employes was scheduled to work on August 15, 1977.  None of them worked that day or thereafter for the employer. Richard J. Andrzejczak was next scheduled to work on August 21, 1977, but he did not work that day, after previously informing the employer that he was "staying out". The employer's owner acknowledged at the hearing that he would not have permitted any of these employer, except Richard J. Andrzejczak, to return to work after August 19, 1977 (week 34), if any of them had offered to return. This was because of their action in withholding their services.

Section 108.04(10) of the Wisconsin Statutes provides as follows:

"Labor Dispute. An employs 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."

The Commission has previously held that the organization of employer into a formal labor union is not essential to the existence of a "bona fide" labor dispute; See Wis. U.C. Digest, 1966, LD-580 (61-A-2624 (C)). For purposes of administering the Wisconsin Unemployment Compensation Law, it is immaterial whether the grievance committee formed by the employer's drivers constituted a labor union or not. It is not disputed that these drivers did act in concert as part of a group which came together to discuss grievances against the employer concerning their wages, hours and working conditions. They acted together in presenting their grievance demands to the employer and, later, in withholding their services until the employer agreed to negotiate with them. The employer's owner gave his response to the grievance demands on August 14, 1977, and the response of the drivers was to withhold their services. Clearly there was a strike or other bona fide labor dispute in existence at that point and the unemployment of these employes on and after August 15, 1977, was because they left their employment due to a bona fide labor dispute, with the exception of Richard J. Andrzejczak who was on vacation at that time and who was not scheduled to work again until August 21, 1977. In his case, his unemployment did not commence until week 35 of 1977 (the week ending on August 27).

The employer's owner asked each of these employes, with the exception of Richard J. Andrzejczak, to turn in his jacket and identification on August 19, 1977 (week 34). Richard J. Andrzejczak was asked to surrender his jacket and identification on August 21, 1977 (week 35). While the employer's owner acknowledged at the hearing that he would not have permitted any of these employes, with the exception of Richard J. Andrzejczak, to continue to work after August 19, 1977 (week 34), that decision was not made with respect to Richard J. Andrzejczak until August 21, 1977 (week 35).

The employer had contended in denying benefit eligibility that the employes had voluntarily terminated their employment by refusing to report for work as scheduled on August 15 and on August 21, 1977. However, the employes had expressly denied any intention to quit their jobs to the employer's owner and none of them had ever informed the employer that he was terminating his employment. On the contrary, their action in withholding their services from the employer was clearly a concerted action intended to enforce their grievance demands. It cannot be held under these circumstances that they voluntarily terminated their employment. On the contrary, their employment was terminated on the initiative of the employer on August 19 and on August 21, 1977. The employment relationship was ended by the employer's action in discharging them.

The Commission has long recognized the proposition that the discharge of a worker ends the employment relationship and that any unemployment subsequent to discharge during the course of a bona fide labor dispute is not because the worker left or lost his employment because of a bona fide labor dispute in the establishment in which he is or was employed, since the employment relationship essential to the existence of a bona fide labor dispute no longer continues after the employer's discharge action. Such further unemployment must be viewed as not controlled by section 108.04(10) but rather by section 108.04(5) of the statutes. Marathon Electric Mfg. Corp. v. Jones, et al and Ind. Com., 259 Wis. 394 (1955).

The employer has not asserted in this case that the employes were discharged for misconduct connected with their employment. On the contrary, his claim of benefit ineligibility was based on the contention that they had voluntarily terminated their employment. In any event, it is the view of the Commission that the discharge of a worker because of his withholding of his services as a part of a concerted group action to secure negotiation of employment grievances cannot be deemed to constitute a discharge for misconduct connected with his employment.

The Commission therefore finds that none of the employes terminated his employment, within the meaning of section 108.04(7)(a) of the statutes.

The Commission further finds that the employes, except for Richard J. Andrzejczak, were discharged in week 34 of 1977 but not for misconduct connected with their employment, within the meaning of section 108.04(5) of the statutes, and that Richard J. Andrzejczak was discharged in week 35 of 1977 but not for misconduct connected with his employment within the meaning of that section.

The Commission finds in addition that the employes, with the exception of Richard J. Andrzejczak left their employment with an employing unit in week 34 of 1977 because of a strike or other bona fide labor dispute in active progress in the establishment in which each of them is or was employed, within the meaning of section 108.04(10) of the statutes, and that employe Richard J. Andrzejczak left his employment with an employing unit in week 35 of 1977 because of a strike or other bona fide labor dispute in active progress in the establishment in which he is or was employed, within the meaning of that section.

The decision of the appeal tribunal is reversed. Accordingly, each of the employes, with the exception of Richard J. Andrzejczak is ineligible for unemployment benefits in week 34 of 1977. Each employe is eligible for unemployment benefits beginning in week 35 of 1977, if he is otherwise qualified.

Dated and mailed April 3, 1978
101 : 015   LD 502   LD 570

Virginia B. Hart, Chairman

/s/ John R. Hayon, Commissioner

/s/ Hugh C. Henderson, Commissioner

NOTE: In reversing the appeal tribunal decision, it is the view of the Commission that the appeal tribunal erred as a matter of law in failing to consider the applicability of section 108.04(10) of the statutes to this situation and in viewing the discharge of workers because they withheld their services to secure negotiation of various grievances as misconduct connected with their employment. It is the judgment of the Commission that the record discloses no dispute between the parties as to any material issue of fact.

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