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February 19, 1997


Appeal from the Circuit Court of Kendall County. No. 95--MR--9. Honorable James M. Wilson, Judge, Presiding.

Released for Publication March 20, 1997.

The Honorable Justice Rathje delivered the opinion of the court. Geiger, P.j., and McLAREN, J., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

In October 1993, plaintiff, Caterpillar, Inc., fired defendant, James Fehrenbacher (defendant), for violating a rule against displaying the term "scab" on company property. Defendant applied for unemployment benefits. Plaintiff argued that, under section 602(A) of the Unemployment Insurance Act (section 602(A)) (820 ILCS 405/602(A)(West 1992)), defendant was not entitled to benefits because he was discharged for "misconduct."

After an administrative hearing, a referee of the defendant Illinois Department of Employment Security (Department) agreed with plaintiff and affirmed the local office's denial of benefits. The Department's Board of Review (Board) reversed and awarded benefits. Plaintiff appealed, and the circuit court reversed the Board. Defendant appeals. He argues that the court erred in holding that section 602(A) bars his receipt of benefits, as (1) the rule he broke was not reasonable; and (2) his disobedience was not misconduct because it resulted from his reasonable good-faith belief that he had a legal right to display the sign.

As pertinent here, section 602(A) states:

"A. An individual shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work and, thereafter, until he has become reemployed ***. *** For purposes of this subsection, the term 'misconduct' means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual's behavior in performance of his work, provided such violation has harmed the employing unit *** or has been repeated by the individual despite a warning or other explicit instruction from the employing unit." (Emphasis added.) 820 ILCS 405/602(A) (West 1992).

We set out the procedural history of this case, incorporating the evidence of the events that preceded defendant's firing. Defendant's application for unemployment insurance stated that he was fired because he refused to remove a sign from the window of his truck, which he parked in the company parking lot. The sign read, "Support S--55 Stop Scabs From Taking Union Jobs." S--55 was proposed legislation to bar hiring permanent replacements for striking union workers. As an employee of plaintiff, defendant belonged to Local 145 of the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW or the union).

Defendant placed the sign in his truck on October 5, 1993. On October 21, 1993, and October 22, 1993, his foreman asked him to remove the sign. Defendant refused and was discharged on October 22, 1993. According to defendant's application for benefits, he believed he should not have been fired because "I fel [sic ] I have the Right to support the Bill S--55."

Plaintiff protested the benefits application, agreeing with defendant's account of his firing but asserting that defendant was discharged for misconduct. The Department's local office agreed. Defendant moved to reconsider, arguing that merely placing a sign in his truck in the parking lot could not be equated with forbidden behavior in the workplace. He explained that, at the time of the incident, his union was working without a contract, and plaintiff had planned "to replace us with scab labor so I [thought] Bill S 55 is inportant [sic ] to save are [sic ] jobs." After the claims adjudicator rejected his motion, defendant sought review by the Department's appeals division.

On December 22, 1993, the appeals division heard evidence on defendant's claim. The hearing was taped, but, owing to faulty equipment, part of the evidence was not recorded. Apparently, most of this missing evidence came from plaintiff's two witnesses. We summarize the surviving evidence and arguments.

Ken Docett, plaintiff's supervisor, told the referee that plaintiff's parking lot is separated from its plant by a lane or road; a worker exiting the plant must pass through a gate to get to his car. Docett admitted that the sign in defendant's vehicle window included a reference to S--55 as well as "Stop Scabs From Taking Union Jobs." However, Docett maintained that "Support S--55" was "so small you can't [sic ] hardly see it." The referee also examined several copies of photographs of defendant's truck.

Defendant testified that, on October 5, 1993, he placed the sign in his truck to demonstrate his support for S--55. He never took the sign with him into the workplace. From then on, he performed his work as a lathe operator no differently from before. When he placed the sign in his car, he knew plaintiff banned the display on its property of any sign saying "Stop Scabs." On October 21 and October 22, Docett told defendant to remove the sign from company property, but defendant refused. Plaintiff suspended defendant and held a ...

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