California Code of Regulations › Title 22 - Social Security › Division 1 - Employment Development Department › Subdivision 1 - Director of Employment Development › Division 1 - Unemployment and Disability Compensation › Part 1 - Unemployment Compensation › Chapter 5 - UNEMPLOYMENT COMPENSATION BENEFITS › Article 1 - ELIGIBILITY AND DISQUALIFICATIONS › Section 1256-41 - Discharge for Misconduct -Union Relations

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(a) This section relates to discharge for
						  misconduct due to an employee's union-related acts. Section
						  1256-30 of these regulations sets
						  forth general principles also applicable under this section.
(b) An employee may be discharged during the
						  course of a trade dispute if the discharge is unequivocal. Lawful union
						  activity is protected. An employee may engage in union-related activities, but
						  if during the course of the union activity the employee engages in independent
						  acts, such acts are misconduct if any of the following conditions exists:
(1) The act is illegal.
(2) The act violates the collective
						  bargaining agreement between the employer and the employee's union.
(3) The act violates an employer rule or a
						  standard of behavior which the employer has the right to expect, as specified
						  in Section
						  1256-32 of these regulations.
COMMENTS. Under subdivision (b) a trade dispute
							 merely suspends, but does not sever the employer-employee relationship.
							 Severance of the relationship during a trade dispute requires an unequivocal
							 discharge.
EXAMPLE 1. A's union was involved in a trade dispute
							 with management. A left work because of the dispute and engaged in lawful
							 activities in furtherance of the strike. However, A also addressed employees
							 who continued to work and management personnel with obscene and insulting
							 language and threw rocks at vehicles entering the plant. The employer
							 discharged A.
A's acts went beyond the bound of A's right to
							 peacefully picket. A's employer unequivocally discharged A because of A's
							 independent acts of misconduct. The employer-employee relationship was severed.
							 The discharge was for misconduct.
COMMENTS. Under subdivision (b) an employee's act is
							 not misconduct simply because he or she has participated in a trade dispute or
							 in lawful picketing or engaged in any union-related act. The act itself must be
							 considered misconduct against the employer. The use or failure to use or
							 outcome of any grievance or arbitration procedure is not relevant on the
							 issues. An employee may be discharged because his or her union has requested
							 such action. If an employee is discharged because of acts against his or her
							 union, the discharge is not for misconduct unless the acts also constitute
							 misconduct against the employer. An employee who by his or her own act loses
							 good standing in the union when this is required by the collective bargaining
							 agreement for employment, and who is terminated, has constructively voluntarily
							 left the job without good cause, rather than been discharged (see Section
							 1256-21 of these
							 regulations).
EXAMPLE 2. A strike was called by B's union and
							 picket lines were set up. B took an active part in the strike. B attempted to
							 dissuade other employees from entering the employer's plant, but never used
							 profane language or threats of violence in doing so. The employer discharged
							 B.
B did picket energetically but peacefully as was B's
							 constitutional right. At all times B's acts were a lawful exercise of the right
							 to picket. Although B was discharged for strike activities, the acts did not
							 constitute misconduct.
COMMENTS. Under paragraph (2) of subdivision (b),
							 knowledge of the collective bargaining agreement terms is imputed to the
							 employee. The terms of the agreement establish a rule of conduct and the
							 employee owes a duty to the employer to comply with these terms. If the
							 employee violates this duty, his or her acts constitute misconduct.
EXAMPLE 3. C, a member of a union, was employed to
							 work on the construction of a dam. One of the terms of the collective
							 bargaining agreement was that the employees would not engage in strikes or
							 picketing and the employer would not engage in a lockout. When grievances
							 presented to the management were not resolved promptly, the business manager of
							 the union called for a picket line. The next day C and all the other union
							 members picketed. C was discharged.
C's discharge was for misconduct because C violated
							 the no-strike clause of the collective bargaining agreement.
COMMENTS. Under paragraph (3) of subdivision (b), an
							 employee owes a duty to his or her employer to comply with the employer's rules
							 and to conduct himself or herself in an appropriate manner while on the job. I
							 the employee disregards this duty and the employer's interests, he or she may
							 be discharged for misconduct. However, as under paragraph (2) of subdivision
							 (b), inadvertences, ordinary negligence in isolated instances, or good-faith
							 errors in judgment or discretion are not misconduct. In such cases of ordinary
							 negligence, misconduct may be found where the employee has been previously
							 warned or reprimanded for prior similar acts of ordinary negligence and has the
							 ability and capacity to perform satisfactorily.
EXAMPLE 4. D often engaged in arguments with D's
							 supervisor or other employees in the presence of customers. The employer warned
							 D that continued instances of such conduct would not be tolerated. Later D's
							 employer asked D to work a few minutes overtime without pay based on an oral
							 agreement between the employer and the union that compensation would not be
							 given for less than nine minutes overtime. D engaged in a heated argument with
							 the employer in the presence of customers. The employer discharged D.
Even though D was unaware of the oral agreement and
							 felt that the union terms required D receive overtime compensation, D's conduct
							 was not warranted especially since D had been previously warned. D's discharge
							 was for misconduct.