Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: C & D Technologies v. LIRC and Henry Arvin, Case 04-CV-6037 (Wis. Cir. Ct., Milwaukee Co., January 25, 2005)

Digest Codes: MC 640.03   MC 640.06

The employee, an African-American factory worker, distributed a letter to other workers stating in part that if management held up his union steward “as a shining example of what a good negro should be, I will tear him apart”. He was fired based on charges that his actions had hindered production and had violated rules against threatening or intimidating others and using abusive language and harassment. The Appeal Tribunal affirmed an Initial Determination finding misconduct. LIRC reversed, concluding that it was not shown that the employee’s conduct in distributing the letter to other employees at work hindered production, and that the letter was not harassing or threatening. LIRC concluded the “tear him apart” statement could not reasonably be interpreted as a threat of physical violence

Held: LIRC’s decision is affirmed. Violation of a work rule may justify discharge but not amount to misconduct. The misconduct provision will be given a construction least favorable to working a forfeiture, so as to minimize the penal character of the provision. The crucial question is the employee’s intent or attitude connected to the act or omission alleged to be misconduct. Here, LIRC found that the employee had no intent to hinder production by distributing the letter to other workers. While they may have taken a few moments to read over it, there is no evidence production was actually hindered. The letter had been written by the employee to serve as his statement to the employer in a grievance proceeding. LIRC’s conclusion that the employee did not intend a threat of physical violence, but only to state that he would challenge the union steward’s credibility and competence, was reasonable where it was based on testimony by the employee as to his intent which LIRC found credible, and given the original purpose of the letter and its intended audience.

[LIRC decision]

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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