Rice Lake Creamery Co. v. Industrial Commission ( 1961 )

Currie, J.

(concurring). This is a very close case and one which has caused me considerable difficulty in arriving at a satisfactory conclusion. As the opinion by Mr. Justice Hallows points out, discharge is ordinarily a unilateral act on the part of the employer. However, for the purpose of effecting a discharge during the pendency of a strike, so as to subject the employer’s account in the unemployment compensation reserve fund to liability to the payment of benefits, it appears unjust to permit an equivocal or ambiguous statement by an employer to be construed as a discharge when not so understood or acted upon by the affected striking employees.

■ In the instant case, there is no evidence that the employees did interpret the September 10th letter as a discharge. The fact, that they did not file for such benefits until they claim that the employer refused to take the employees back in December, is clearly evidence that at least up to that time they did not understand the September 10th letter to constitute a discharge. The mere fact, that the affected employees continue with strike activities, such as picketing, after the equivocal act of the employer has occurred, is not decisive of the question of whether or not the employees have interpreted the employer’s act as a discharge. This is because such strike activities may be carried on for the purpose of forcing the employer to confer employee status again upon the strikers following a claimed discharge, or they may be carried on under the belief that their original employee status has not been terminated.

For reasons heretofore stated, I would hold that in a case involving an equivocal act of the employer, claimed to constitute a discharge during the progress of a strike, some affirmative bilateral act by the striking employees, indicating acceptance of such act as a discharge, is necessary before the act can be determined to constitute a discharge for the purposes of the Wisconsin Unemployment Compensation Law. In the absence of such a bilateral act by the employees, their employee status continues.

On this reasoning, I concur in affirmance of the judgment below.