BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the
unemployment benefit claim of

RALPH L HAYS, Employe

Involving the account of

STOUGHTON TRAILERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-000316 MD


A Department Deputy's Initial Determination held that in week 1 of 1989, the employe was discharged for misconduct connected with his work. As a result, benefits were denied.

The employe timely appealed the Initial Determination and a hearing was held on February 14, 1989 before Administrative Law Judge David C. Wagner, acting as an Appeal Tribunal of the Wisconsin Department of Industry, Labor and Human Relations. The Appeal Tribunal decision, issued on February 22, 1989, affirmed the Initial Determination.

The employe timely petitioned for review by the Wisconsin Labor and Industry Review Commission. Based on the evidence and applicable law, and having considered the arguments presented by the parties, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately five months for the employer, a manufacturer of semi trailers. His last day of work was on or about April 25, 1988, when he ceased working due to a labor dispute. On January 4, 1989 (week 1), he was discharged by the employer based on an allegation that he had engaged in misconduct during the strike. The issue to be resolved is whether the employe was discharged for misconduct connected with his employment.

The employe was discharged for an incident occurring on the picket line at the employer's establishment on June 10, 1988. The employe was walking the picket line on that day, when a vehicle driven by a nonstriking employe drove slowly into the plant through the picket line. The employe was walking across the path of the oncoming car from left to right, moving obliquely away from the car. The bumper of the car came in contact with the employe's legs, below the knee, as the employe was in front of the car on its right side. The contact bumped the employe's lower legs forward, and out from under him, so that he fell backwards, landing on the hood of the car in a seated position, apparently denting the hood somewhat.

The employer contended that the employe intentionally damaged the car in the incident in question. Based on a careful review of the videotape of the incident, the Commission disagrees.

The employe certainly knew that the car was approaching him as he walked the picket line, and he must have anticipated that, unless he quickened his pace, there was a possibility that he would be bumped by the car. However, the employe had the right to walk the picket line. The employer had instructed its nonstriking employes that, when they were entering the plant through a picket line in a vehicle, they were not required to stop if another vehicle had crossed the picket line within 100 feet ahead of them. Consequently, vehicles of nonstriking employes, such as the vehicle involved in the incident in this case, were proceeding through the picket line without stopping even though persons were walking back and forth in front of their cars. Where the cars were not stopping as they entered the plant from the public thoroughfare outside, to find that strikers engaged in misconduct simply by walking in front of the cars would be tantamount to finding that the strikers engaged in misconduct by exercising their right to engage in that most basic activity of a strike, walking a picket line. Thus, the fact that the employe put himself in a position where it was possible that he might be bumped by a car as he walked the picket line does not, in and of itself, constitute misconduct.

Based on its review of the videotape, the Commission concludes that the employe did not intentionally damage the car. The Commission concludes, contrary to the administrative law judge, that the employe was walking in an essentially straight path, somewhat obliquely away from the car, when he was struck. It sees no suspicious "change in direction" at the last minute which could support an inference that he was planning some improper conduct. Further contrary to the view of the administrative law judge, the commission, based on its own viewing of the videotape, concludes that the employe did not "jump" onto the car. In order for the employe to have "jumped" onto the hood of the car, it would have been necessary for him to propel himself upwards either by rising quickly up onto his toes or by bending down at the knee somewhat and then propelling himself upward by straightening that joint. Neither one of these things occurs. Rather, the employe's legs are taken out from under him below the knee by the bumper of the car, as the administrative law judge found, is simply a reflection of the fact that he is a large man who is falling backwards after his lower legs were bumped out from under him. The Commission is satisfied that the employe did not intentionally damage the car in question.

The Commission therefore finds that in week 1 of 1989, the employe was discharged but not for misconduct connected with his employment within the Wis. Stat. § 108.04(5).

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe is eligible for benefits if he is otherwise qualified.

Dated and mailed October 27, 1989October 27, 1989
110 : CD6062  MC 680.05

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson , Commissioner

NOTE: The Commission consulted with the administrative law judge concerning his impressions as to the credibility of witnesses. The administrative law judge did not indicate that anything other than his interpretation of the videotape of the incident played a part in his decision. Specifically, no factors relating to the apparent credibility of the employe as a witness, based on his testimony at hearing, was referred to. The Commission has arrived at a different decision than the administrative law judge based on its viewing of the videotape in question. The Commission disagrees with the administrative law judge's conclusion that the actions of the employe portrayed on the videotape were "contrary to the laws of physics and demonstrated at most that he has a talent for acting." The employe was in front of the right portion of the car, facing perhaps 30 degrees obliquely away from the perpendicular to the car's path, with one leg planted and the other leg in the process of moving forward to take another step, when the car's bumper struck his legs from behind, below the knee, knocking them both out toward the front. Not surprisingly, the employe was unable to remain standing, and he fell; the Commission considers the fact that, when he fell, he landed in a sitting position, to be unremarkable considering his position when struck. As noted above, the Commission finds no indication in the videotape that the employe "jumped" on the car in any fashion. That damage resulted appears to have been the result merely of the fact that the employe was a large man; he did not propel himself onto the hood in any fashion.

As a matter of convenience, a briefing schedule was established whereby the cases of the eleven former Stoughton Trailers, Inc., employes denied benefits on misconduct grounds were briefed together. This did not, however, constitute a formal consolidation of these cases. This case, and all of the others, have been decided solely on the record made at the hearing in this matter, and evidence received into the record in the other cases has not been considered in deciding this case.

The employe has moved for an order striking the employer's brief on the grounds that it was filed late. According to the briefing schedule, the employer's brief was due on July 12, 1989; it was filed on July 24, 1989. The lateness of the brief, although unexcused, was basically insignificant and resulted in no demonstrated prejudice to the employe.

The employer has moved for an order striking portions of the employe's brief, specifically, "all references and argument related solely to the `labor dispute' at Stoughton Trailers, Inc., and subsequent matters before the National Labor Relations Board." To the extent that this motion seeks to strike from the employe's brief all references to the fact that there was a labor dispute at Stoughton Trailers, Inc., and the fact that the alleged misconduct occurred in the context of this labor dispute, the motion is denied. It has long been recognized that evaluating the question of "misconduct" occurring in connection with a strike requires some recognition of the unique conditions that prevail during a strike. See, e.g., Bishop, et al. v. Industrial Comm. and Allen Bradley, (Dane Co. Cir. Ct., November 21, 1941); Research Products Corp. v. DILHR and Vaningen, (Dane Co. Cir. Ct., October 6, 1977). Far from being ignored, the strike context should be affirmatively considered. However, to the extent that the employer's motion seeks to strike references to the fact that the National Labor Relations Board has issued a complaint charging the employer with unfair labor practices in connection with the strike, the motion is granted. The Commission will not accord weight to a prosecutorial decision to charge an offense. Such a decision cannot be considered probative that the offense charged was in fact committed.

cc: ATTORNEY GEORGE GRAF
ZUBRENSKY PADDEN GRAF & MALONEY

ATTORNEY JOHN R SWEENEY
MELLI WALKER PEASE & RUHLY SC


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