Misconduct MC 475
This section discusses the principles to be applied when the claimant was discharged due to relations with his or her union or due to participation or actions in a trade dispute. A brief discussion on maritime collective bargaining agreements is also included.
It should be pointed out that membership in any bona fide union is legal activity under both federal and state statute. Moreover, once an individual joins a bona fide union, he or she becomes bound by the terms of the collective bargaining agreement then in effect, and becomes a party to the ratification of any later agreements. Of the claimant's knowledge of the collective bargaining agreement, Title 22, Section 1256-41 (Comments after Example 2) states:
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.
A. Discharges Due to Union Relations
A claimant may be discharged in the following situations because of his or her relations with the union.
- Refusal to Join Union or Pay Agency Fee
Title 22, Section 1256-21 (b)(1) provides:
An individual's refusal to join or retain membership in or pay an agency service fee to a bona fide labor organization which has a collective bargaining agreement with the employer which provides that union membership or fee payment is a condition of hire or continued employment, or an individual's personal objection to all unions, some specific unions, union officials, or union practices and policies, is not good cause for voluntarily leaving work unless based on a bona fide conscientious objection.
According to this regulation, if membership or fee payment is a condition of employment as provided by the collective bargaining agreement, and the claimant voluntarily refuses to join or pay the agency fee, and is consequently discharged, he or she is considered to have constructively voluntarily quit without good cause unless the refusal is based on a bona fide conscientious objection. (See VQ 135 for a discussion on constructive voluntary quit.)
Example - Refusal to Join Union or Pay Agency Fee:
In P-B-290, the claimant, a tool and die maker, was discharged because of his refusal to either join the union which was the certified collective bargaining agent for employees of his unit, or to pay an agency fee to the union. The claimant had been notified twice in writing by the employer that if he did not pay the agency fee, he would be discharged. According to the collective bargaining agreement between the employer and the union, all employees in the bargaining unit must, as a condition of employment, be a member of the union or pay an agency fee to the union.
The claimant, who did not object to unions generally, objected to this particular union because he considered it was not a democratic union. He believed the individual reserved the right to belong or not belong to the union. He could have joined the union, but he never tried to do so. He objected to paying the agency fee to retain the job he had had for so many years.
The Board found him ineligible because he "had no good cause under the law for failing to pay the fee and he refused to do so for personal reasons . . ."
What if membership or fee payment is not a condition of employment as provided by the collective bargaining agreement, and the claimant is discharged for not paying the fee? In this case, the separation is not a constructive voluntary quit but a discharge, and the discharge is not for misconduct. The claimant does not owe a duty to the employer to join or pay the agency fee when membership or fee payment is not a condition of continued employment, as provided by the collective bargaining agreement.
What if the claimant is too poor to pay the fee? If the facts clearly establish that the claimant is not financially able to pay the fee, his or her action will not be considered voluntary and the discharge is for reasons other than misconduct.
What if the claimant refuses to join or pay the agency fee because of a conscientious objection? See VQ 90 for a discussion on conscientious objection for leaving work.
- Refusal to Maintain Good Standing in Union
Title 22, Section 1256-41 (Comments after Example 1), states in part:
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 constructive voluntarily left the job without good cause, rather than been discharged . . .
Thus, like a claimant who refuses to join the union or pay the agency fee, a claimant who is terminated for losing good standing in the union, for example, by not paying union dues or not paying fines, has constructively voluntarily quit without good cause when good standing in the union is required by the collective bargaining agreement.
Example - Refusal to Pay Union Dues:
In Evenson v. CUIAB (First Appellate Court, 1976), the employer and the union entered into a collective bargaining agreement prior to the claimant's discharge that each employee, who was a member of the union on the date of ratification of the agreement, must thereafter pay dues to the union.
After two warnings, the claimant was discharged solely for failure to pay his dues. The claimant's reasons for refusal to pay were that he felt the union was neither operating effectively nor representing properly the interest of the membership. He also contended that he had the freedom of association as guaranteed by the First Amendment.
The Court rejected this argument. The Court also stated that the claimant "could have worked within the collective bargaining framework to correct the union's deficiencies."
Example - Refusal to Pay Union Fine:
The claimant was a member of a meat truck drivers union which had a signed employment agreement with the employer. A plan for a guaranteed annual wage had tentatively been agreed upon between the employer and the union. The claimant, however, circulated a petition which would serve notice on the employer to abandon such a plan. He was brought before his union on charges of tending to bring the union into disrepute, for insubordination and for other changes. The claimant had a hearing, was found guilty and fined.
He refused to pay the fine, and the union refused to accept his dues until the fine was paid. Later the employer was required to discharge the claimant under the conditions of the contract between the employer and the union.
The claimant constructively voluntarily quit without good cause. The claimant's loss of employment was due to his failure to maintain membership in the union. The claimant was aware that his failure to pay the fine and maintain his membership in good standing would result in termination of his employment. His failure then to pay the fine or to make arrangements for payment in installments was voluntary and the loss of employment was attributable to an act of volition on his part.
- Joining a Union
Employees have a legal right guaranteed by both State and Federal statutes to join and maintain membership in any trade union that they may care to affiliate with. If the employer discharges the claimant solely because of this affiliation, the discharge is not for misconduct, because there would be neither "misconduct" nor connection "with his or her most recent work."
Sometimes, a claimant may allege that he or she was discharged because of union membership or activity, while the employer gives another reason for the discharge. Since the employer is the moving party and has the burden to prove that the claimant was discharged for misconduct connected with his or her work (Maywood Glass Company v. Stewart, and Perales v. Department of Human Resources Development), resolve the issue based on the reason or reasons given by the employer.
- Activity in Union
A claimant's activity in his or her union's affairs would not normally be material to the employer if such activities were engaged in on the claimant's own time and away from the employer's establishment.
What if the claimant was discharged for engaging in union activities on company time? Most contracts between unions and employers provide specifically under what conditions the business agent or other union official may engage in union activities on company time and property. If there is no contract between the employer and union, the applicable company rules would govern. If the claimant abided by the contract provisions or the company rules, he or she would not be subject to misconduct disqualification for engaging in union activity on the establishment.
What if the employer alleged that the claimant spent excessive time in union activities on company time? In this case, it would generally be necessary for the employer to show that the claimant acted contrary to contract provisions or employer rules, that the claimant had been warned or reprimanded and that the claimant failed to comply with instructions.
Example - Activity Not in Compliance With Employer Rule/Instruction:
The claimant, a tractor operator for a rubber manufacturing company, was due to start work at noon. He appeared for work on time but decided to go to his union hall, after securing permission from his foreman to be at the union hall until 1:00 o'clock. He did not return until 2:30 p.m. and he was then discharged. The company permitted workers to leave the plant on union business when requested to do so by union officials. The claimant admitted he was not requested to contact the union hall. He testified that it was necessary for him to make the visit because he wanted to protest the manner in which the union was arranging a social affair. The claimant had been reprimanded for previous infractions of rules.
The discharge was for misconduct. The claimant was not required to go to the union hall and did not return at the time specified by the foreman. There were reprimands for prior infractions of rules.
- Dispute with Representative/Violation of Union Rule
A claimant may argue with the business agent or other representative of a union, or may break a union rule, and is discharged by the employer because of the union's insistence that the claimant be discharged. Generally a claimant's difficulties with his or her union will not constitute a breach of duty owed to the employer. Breaking a union rule is not the same as breaking an employer rule. Consequently a discharge resulting solely from such difficulties is not for misconduct.
What if the claimant's violation of a union rule also violates a standard of behavior which the employer has the right to expect of the claimant? What, for example, if the claimant attacked his or her shop steward while at work? In such cases the claimant's conduct would be viewed in relation to his or her violation of the employer's standard of behavior rather than a violation of a union rule.
What if the violation of the union rule led to loss of good standing in the union, and this is required for continued employment under the collective bargaining agreement? In this case, the claimant would be ineligible, but not because of discharge for misconduct. The ineligibility would be due to constructive voluntary quit without good cause. See 2. Refusal to Maintain Good Standing in Union above.
B. Trade Dispute and Discharges
- Trade Dispute and Employer-Employee Relationship
A trade dispute suspends but does not sever the employer-employee relationship. Accordingly, when an employee leaves work due to a trade dispute the employer-employee relationship is still maintained during the trade dispute. However, if the employee leaves work due to a trade dispute and is subsequently discharged during the trade dispute, the employer-employee relationship is severed at the point of the discharge.
Such a discharge serves to purge a trade dispute disqualification because the individual is no longer an employee of the company. The trade dispute is no longer the reason for the individual's unemployment. Although the individual's trade dispute disqualification has been purged, the discharge issue must be resolved under Section 1256, because the discharge is the proximate cause of the individual's unemployment.
- Participation in Trade Dispute:
Participating in a trade dispute in and of itself is not misconduct. However, unlawful activities performed against the employer while on strike can be misconduct.
Title 22, Section 1256-41(b), EXAMPLE 1, states:
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 discharge 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.[A]n 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. . . .
What if the claimant was discharged for picketing activities?
Example - Discharged for Picketing Activities:
In P-B-187, the claimant was discharged for picketing activities during a trade dispute. The Board found the claimant eligible and stated:
[The evidence] shows that the claimant, though he picketed energetically, always did so within the confines of peaceful picketing. "Peaceful picketing" is picketing which does not interfere with another's person or property by unlawful use of force, violence, intimidation or threats. It is a right secured by constitutional provision and allows individuals to convey their opinions and promote their causes with respect to a labor controversy by presenting persuasive facts to other workmen in a legitimate manner . . . It is lawful so long as it remains an appeal to reason as distinct from a weapon of illegal coercion . . . .
From the above examples, it is obvious that:
- Participation in a trade dispute, as such, is not misconduct.
- Engaging in legal picketing activities, as such, is not misconduct.
- Misconduct During Course of Trade Dispute
Since the employer-employee relationship is still in effect during a trade dispute, the employer still has the right to expect the employees to comply with the same standards of behavior in effect while they are actually working. Consequently, any acts committed by a claimant during a trade dispute will be viewed just as any other acts of alleged misconduct on the claimant's part while actually working.
Example - Misconduct During Trade Dispute:
The claimant, a research chemist, was a participant in a strike action against his employer. While on strike the claimant addressed certain remarks that were considered obscene and insulting to an employee who was still working for the employer despite the existence of the trade dispute. The employee to whom the remarks were addressed normally worked as the claimant's supervisor. The claimant was discharged when the strike ended.
The claimant's leaving of work because of a trade dispute with his employer did not sever the employer-employee relationship existing between the claimant and the employer but merely served to suspend it. Therefore, we assume the continued existence of the employer-employee relationship in deciding whether the claimant, during the course of the trade dispute, committed an act which constituted misconduct connected with his work,
The obscene and insulting language uttered by the claimant of his supervisor went beyond what can be considered the usual give and take between employer and employee during a trade dispute. The claimant's act amounted to a wilful disregard of the standard of behavior which his employer had the right to expect of him and was injurious to the employer's interest.
The fact that the claimant was not working due to a trade dispute did not alter the fact that the employer had the right to expect the claimant to exhibit a satisfactory level of conduct, at least when the claimant was on or about the employer's premises or in contact with other employees. The claimant's actions which would normally constitute misconduct would not be viewed differently just because the employer-employee relationship is in suspension during the progress of the trade dispute.
Contrast the above with the following case, in which the claimant's actions were not considered misconduct.
Example - Trade Dispute Actions Not Considered Misconduct:
In P-B-187, the claimant, an instrument repairman, had been on strike from his employment at an oil refinery. A provision of the final strike settlement provided that the employer could discharge (after due hearing upon the claimant's application) any employee who had engaged in acts or threats of violence towards other employees or to the property of the employer.
The claimant was discharged under those provisions, was given a hearing and the hearing panel upheld the claimant's discharge. However, no portion of that hearing was presented to the Board. Evidence before the department indicated that the claimant took an active part in the strike. He admitted that he was considered a "nuisance" by the plant management during the course of his picketing activities. He energetically sought to dissuade workers from entering the plant. However, at no time did he indulge in profanity or engage in acts or threats of violence towards other employees and he denied interfering with or coercing other employees or damaging the property of the employer. He did signal trucks attempting to enter the plant to stop and attempted to persuade the drivers not to enter and he sometimes succeeded in this persuasion.
He denied that he stood in front of advancing vehicles to force them to stop or that he laid violent hands upon them. The claimant was a practicing member of a religious faith well known for its opposition to violence in any form. Because of religious principles, the claimant stated that he carefully avoided even the appearance of force or intimidation and that he counseled his fellow strikers against such actions.
The Board ruled that the claimant's discharge was not for misconduct. It so ruled because the acts committed by the claimant did not amount to misconduct. The Board stated:
The evidence in the instant case fails to establish that the claimant's activities during the strike exceeded the legal limitations upon picketing activities. It affirmatively shows that the claimant, though he picketed energetically, always did so within the confines of peaceful picketing. "Peaceful picketing" is picketing which does not interfere with another person's person or property by unlawful use of force, violence, intimidation or threats. It is a right secured by constitutional provision and allows individuals to convey their opinions and promote their causes with respect to a labor controversy by presenting persuasive facts to other workmen in a legitimate manner . . . It is lawful so long as it remains an appeal to reason as distinct from a weapon of illegal coercion.
To constitute misconduct under (Section 1256) the acts or omissions which brought about the discharge of a claimant must have been wrongful or improper in character. Inasmuch as the acts for which the claimant herein was discharged were acts done in the lawful exercise of his right to picket peacefully, they were neither wrongful nor improper. They did not therefore constitute disqualifying misconduct.
The examples cited above supply the key to correct determinations involving the majority of discharges for activities engaged in during a trade dispute. If a claimant is acting in a proper manner, i.e., appealing to reason and not threatening by either word or deed either another person or the employer's property or interests, the discharge will not be for misconduct.
- Independent Acts During Trade Dispute
What if the claimant is discharged for independent acts during the course of a trade dispute? According to Title 22, Section 1256-41(b), such acts are misconduct if any of the following conditions exist:
- The act is illegal.
- The act violates the collective bargaining agreement between the employer and the employee's union.
- The act violate an employer rule or a standard of behavior which the employer has the right to expect.
Example - Independent Acts During Trade Dispute:
In Stout v. Department of Employment (Second Appellate Court, 1959), the claimant authored, posted, and distributed literature derogatory to both the employer and the union to fellow employees, union officials, and the public at large while on strike. The handbills and notices contained statements, charges, and allegations against the employer and the union which were largely not true.
The employer and Stout discussed the situation at length, and examined the handbills and notices. The employer made it clear to Stout that if he ever again posted, distributed, or caused to be published, similar inflammatory material against the employer, he would be discharged. Despite the warnings, the claimant again published at least five more separate pieces of literature which were distributed in great volume to employees and the public. An expert witness testified that Stout's portable typewriter was the machine upon which the material had been written.
In its decision, the appellate court affirmed the superior court, and noted:
That during the existence of a trade dispute between the employer and the union, there did not arise a justification in fact or an excuse in Stout to perform misconduct directed against the permanent interest of the employer and without advance opinion, knowledge or concurrence in the union as to Stout's activities by way of Stout's release of diverse and derogatory pamphlets and publications directed against the employer; that Stout, during a trade dispute, could not so conduct himself as to condemn, libel and slander the employer without regard to the truth or lack of truth of his publications through pamphlets and other printed matter; that Stout, if he believed himself personally aggrieved, could have redress through the union through well known grievance procedure . . . .
- Not Organized or Represented by Union
The following precedent benefit decision addresses the issue presented when claimants took concerted actions over conditions of work when they were not represented by a union.
Example - "No Union" Trade Dispute:
In P-B-399, the claimant and other employees were not organized or represented by any union. The employer's policy regarding complaints required an employee to seek adjustment through an immediate supervisor. If there was no satisfaction of that grievance within a reasonable period, the employee could contact the president of the firm.
The employees expressed dissatisfaction with overtime and unsafe working conditions to their foreman who told the vice president. On October 14, a Friday, the president reprimanded the employees for their poor work. On the same day, after lunch, some employees approached the foreman and had spoken of a walkout. Later, just after the afternoon break, 20 employees left work without advance notice to the employer. The president was told that a representative would return with the employee's demands. There was no picket line set up.
No employee representative contacted the president that day and over the weekend. The Employees were not in agreement as to why they had walked out, but there was agreement that management was harassing them and that they were discontent with the amount of overtime. At 9:30 a.m. the following Monday, the employees sent a message to the President that they would like to speak to him as a group. At this point the decision was made to terminate the employees.
The employer contended that the claimant involved was discharged for misconduct, that there was no trade dispute for there was no concerted action and no demands communicated to the employer.
The Board disagreed that there was no trade dispute in this case. The Board stated:
[I]f an employee acts with or on behalf of other employees, and not solely by and on behalf of the employee alone, in an activity for mutual aid or protection, which includes everything in which the employees could be said to have a legitimate interest, then the employee engaged in a concerted activity . . . a trade dispute does exist when there is concerted action, that is, a walkout by the employees.
The Board went on to state:
In the case under appeal, the employer gave little consideration to the employees' unrest. There had been no threat of concerted protest. The employees had been working overtime with faulty equipment. The morning of the walkout they were confronted by the president who "chewed them out." The employees had no representative by which they could take advantage in negotiations with the employer; they took the most direct course to let the company know they were dissatisfied with working conditions. They walked out. The claimant's alignment with the employees who walked out indicated his participation in the trade dispute.
Since the claimant's discharge was the direct result of his participation in a trade dispute, the discharge was not considered for misconduct in connection with his work.
- Sit-Down Strikes
There is nothing illegal about a sit-down strike as such, thus a discharge for engaging in such a strike would not be for misconduct. If, however, the strikers refuse to relinquish or vacate the employer's property upon demand, their actions then become illegal. If they are discharged for such illegal actions, they would be discharged for misconduct.
Example - Actions Not Illegal:
At 8:50 a.m., on April 27, a cessation of work occurred due to a grievance which had been previously raised by the claimant's union. The claimants did not leave the employers’ premises, they either remained at their work stations or milled around in the establishment. They refused to accede to requests made of them that work be resumed, and no work was performed throughout the balance of the working day.
The next regular workday, April 28, the claimants were informed that they had engaged in a "wrongful" sit-down strike; that no pay would be forthcoming for any time not worked; and that continuation of the sit-down strike would subject the employees to an immediate discharge.
The claimants continued their sit-down strike on the next regularly scheduled workday, May 1. Sometime between the hours of 9:00 a.m. and 10:00 a.m. on May 1, the claimants were informed that they had been unequivocally discharged. The claimants did not immediately vacate the premises and at about 11:00 a.m. the employer read a demand to the claimants to vacate the premises. No action was taken by the employer to enforce the demand to vacate the premises, but the claimants did in fact leave at about 2:00 p.m.
The employer contended that the claimants were discharged for misconduct because of the illegal sit-down strike, the plant seizure and seizure of property.
In National Labor Relations Board v. Fansteel Metallurgical Corp., the employees participated in a sit-down strike wherein they took and retained physical possession of the employer's premises and refused to vacate or relinquish possession until they were physically ejected from the premises by use of force. The Court held that the strike was illegal in its inception and prosecution and that taking over of the employer's premises was an illegal seizure of the buildings in order to prevent their use by the employer.
The distinction between the court case and the example is apparent. The claimants in the example did not seize and retain possession of the premises of the employer. They complied with the request to vacate the premises, did so without protest or resistance and force was not necessary to remove them. Since their actions were not illegal, the discharge would not be for misconduct.
- Violation of Collective Bargaining Agreement
If a claimant is discharged, for example, because of a violation of a "no strike" clause in a collective bargaining agreement, the discharge would be for misconduct.
Example - Violation of "No Strike" Clause:
In P-B-16, the claimants belonged to a union that had as part of its collective bargaining agreement with the employer the following provisions:
It is mutually understood and agreed that during the period when this Agreement is in force and effect, neither the Employer nor any Individual Employer will authorize or engage in any lockout; and that the Union or Local Union will not authorize any strikes, picketing, slowdowns or stoppages of work, in any dispute, complaint or grievance arising under the terms and provisions of this
Agreement . . . .
In this case, jurisdictional disputes had arisen and there were some complaints among the employees as to safety conditions. When these complaints were not resolved as promptly as the union business manager felt they should be, he called for a picket line. The claimants participated in this picket line.
The contract the employer was working on contained a completion schedule that called for a daily penalty of $25,000 for every day beyond the agreed completion date that it took to complete the project. The strike cost the project two days.
The employer was still investigating the complaints when the picket line was established. That same day he contacted the union business manager and advised him that he was discharging the men involved for their conduct in violation of the labor agreement. The picket line was removed at the end of the same day upon the advice of a union attorney. However, the employer did not allow any of the striking workers to return.
The Board in holding that the claimants had been discharged for misconduct, quoted the Supreme Court of the United States in Atkinson v. Sinclair Refining Co. (1962), as follows:
It is universally accepted that the no-strike clause in a collective bargaining agreement at the very least establishes a rule of conduct or condition of employment the violation of which by employees justifies discipline or discharge.
The Board then stated:
In the instant case, on the merits there can be little question that the claimants, by virtue of the collective bargaining agreement, owed a duty to the employer to refrain from engaging in the type of activities which occurred . . . The evidence is also clear that all the claimants herein wilfully violated that duty on the date in question by participating in the unauthorized strike and picket line and that the employer suffered substantial injury as a result. The loss of employment was a predictable, direct consequence of this breach of duty. It follows, therefore, that the claimants’ . . . discharge . . . was a result of misconduct connected with their work.
- Discharge at End of Trade Dispute
At the end of a trade dispute, an employer may decide to discharge an employee for alleged improper activities during the trade dispute. In resolving this issue apply the usual standards in resolving misconduct cases, i.e., whether or not the claimant’s behavior was a wilful, substantial disregard of the employer's interests.
Example - Discharged at End of Trade Dispute:
In P-B-187 the claimant was employed as an instrument repairman through a union which called for a strike. Picket lines were established during the strike, which lasted from September until November 9 of that year. On November 12, the claimant was notified that he had been discharged as of November 10 because of alleged improper activities during the strike.
The Board found the claimant not discharged for misconduct because the evidence "fails to establish that the claimant's activities during the strike exceeded the legal limitations upon picketing activities . . ." For a detailed discussion of the case, see A. 3. Misconduct During Course of Trade Dispute above.
C. Maritime Collective Bargaining Agreements
Maritime collective bargaining agreements usually provide that seamen working under certain classes of union permits may work only a limited number of consecutive days on any ship. These arrangements provide that the seamen shall not be required to leave the ship before it returns to the port of embarkation or payoff. If the employer is a signatory to this agreement, there is no issue under Section 1256 of the UI Code when a claimant leaves a ship because his or her limited time has expired.
On the other hand, a claimant could have been discharged, but was allowed to remain on board until he or she returned to the port of embarkation. In such a case, the delay in discharging the claimant will not change the primary reason for the claimant's discharge.
Example - Discharge Delayed:
In P-B-106, the claimant was a seaman on board a ship docked at Honolulu. On October 17, the claimant was involved in an altercation with his superior, the Third Steward. On October 18, the claimant appeared before the Master and the Chief Steward. He was logged for the incident and informed he would not be put off the ship in Honolulu but he would be discharged at the end of the voyage in San Francisco. Such action was in accordance with the discretion vested in the Master. When the ship docked in San Francisco on October 23, the claimant was discharged.
Under the collective bargaining agreement, the claimant could not work continuously for an employer longer than 60 days. As of October 23, the claimant had worked for this employer 61 days. Therefore, even if he had not been discharged, the claimant would have had to leave the ship.
The Board still held the claimant was discharged and his employment did not end due to the terms of the collective bargaining agreement. The Board said:
"The . . . fact that because of circumstances the claimant's actual date of discharge occurred several days after he was told he would be discharged does not change the primary or effective reason for his termination . . . We do not believe that by failing to immediately remove the claimant from the ship on October 17 the employer thereby condoned the claimant's actions . . . The claimant was discharged and his employment did not terminate as a result of the collective bargaining agreement."