Brauneis v. State

• Decision Date: 27 June 2000
• Docket Number: No. 98-2212.,98-2212.
• Citation: 2000 WI 69,612 N.W.2d 635,236 Wis.2d 27
• Parties: Todd W. BRAUNEIS, Gregory C. Decleene, Eugene M. Kapitanski, Joel Brunton, Thomas Doege, Thomas Geboy, Peter J. Holmes, Robert Koleta, James McLaughlin, Jr., Rudy Ramos, John E. Schaller, Craig F. Ford, Ronald J. Mielke, Paul J. O'Leary, James S. Rehfeldt, Robert D. Sumter, Jerome P. Pytlik, Russell P. Fahn, Donald J. Hesse, Dale Kopacz, Alan M. Kuhn, John J. Bosmans, James A. Krznarich, Ronald F. Mamayek, William H. Neider, John L. O'Leary, Carl W. Pennewell, Charles R. Novak, Jason A. Nimmer, James D. Pfeifer and Jeffrey T. Vogt, Petitioners-Respondents, v. STATE of Wisconsin, Labor and Industry Review Commission, Respondent-Appellant, The ILLINGWORTH CORPORATION, Respondent-Co-Appellant.
• Court: Wisconsin Supreme Court

236 Wis.2d 27

2000 WI 69

612 N.W.2d 635

Todd W. BRAUNEIS, Gregory C. Decleene, Eugene M. Kapitanski, Joel Brunton, Thomas Doege, Thomas Geboy, Peter J. Holmes, Robert Koleta, James McLaughlin, Jr., Rudy Ramos, John E. Schaller, Craig F. Ford, Ronald J. Mielke, Paul J. O'Leary, James S. Rehfeldt, Robert D. Sumter, Jerome P. Pytlik, Russell P. Fahn, Donald J. Hesse, Dale Kopacz, Alan M. Kuhn, John J. Bosmans, James A. Krznarich, Ronald F. Mamayek, William H. Neider, John L. O'Leary, Carl W. Pennewell, Charles R. Novak, Jason A. Nimmer, James D. Pfeifer and Jeffrey T. Vogt, Petitioners-Respondents, v. STATE of Wisconsin, Labor and Industry Review Commission, Respondent-Appellant, The ILLINGWORTH CORPORATION, Respondent-Co-Appellant.

No. 98-2212.

Supreme Court of Wisconsin.

Oral argument May 25, 2000.

Decided June 27, 2000.

For the respondent-appellant there were briefs (in the court of appeals) and oral argument by William W. Cassel, Labor and Industry Review Commission.

For the respondent-co-appellant there were briefs (in the court of appeals) by Jere W. Wiedenman and Buchanan & Barry, S.C., Milwaukee, and oral argument by Jere W. Wiedenman.

For the petitioners-respondents there was a brief by Matthew R. Robbins, Jill M. Hartley and Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee, and oral argument by Matthew R. Robbins.

¶ 1. N. PATRICK CROOKS, J

This appeal is before this court on certification from the court of appeals pursuant to Wis. Stat. (Rule) § 809.61.¹ The State of Wisconsin Labor and Industry Review Commission (LIRC) and The Illingworth Corporation (Illingworth) appeal an order of the circuit court for Milwaukee County, Jacqueline D. Schellinger, Judge, reversing LIRC's unemployment compensation decision. The circuit court determined that Illingworth's act of barring employees from work constituted a lockout pursuant to Wis. Stat. § 108.04(10)(d).² We agree that Illingworth's conduct was a statutory lockout and, accordingly, Petitioners-Respondents are entitled to unemployment compensation. We therefore affirm the circuit court's decision.

I.

¶ 2. The Petitioners-Respondents, Todd W. Brauneis and co-workers, were Illingworth employees.³ They worked as sheet metal workers for Illingworth at its Milwaukee facility. They are members of Local 18 of the Sheet Metal Workers' International Association (Local 18 or the union) which represents them in collective bargaining.

¶ 3. Illingworth is a member of the Sheet Metal and Air Conditioning Contractors' Association (Association) which bargains collectively on behalf of Illingworth and other Association members. The Association members agree to be bound by the Association's actions concerning negotiations with the union, including instructions and directives regarding concerted action.

¶ 4. During the relevant time period, there was a 1993-1996 collective bargaining agreement between the Association and Local 18 that had expired. At issue during the negotiations was compensation for "addendum workers" or those workers covered by an addendum to the collective bargaining agreement. Construction Supply & Erection (CS&E), also an Association member, employed the largest number of Local 18 addendum workers in the Milwaukee area.

¶ 5. On Friday, June 7, 1996, Local 18 went on strike against CS&E. Local 18 chose CS&E as the strike target because of the large numbers of addendum workers it employed. On Tuesday, June 11, 1996, the Association directed its members to inform Local 18 employees that they were locked out. Some Association members did not participate in the lockout. ¶ 6. Illingworth participated in the lockout. During week 24 of 1996, Illingworth locked out Petitioners-Respondents. However, Local 18 did not go on strike against Illingworth. The union did not go on strike against any other Association member.

¶ 7. On June 14, 1996, the Association notified its members that a tentative agreement had been reached with the union. The strike against CS&E and the Association-directed lockout ended on Monday, June 17, week 25 of 1996.

¶ 8. Although Illingworth and CS&E both employ members from the Local 18 union and some members may work at both companies, the companies are entirely separate businesses. Illingworth's business involves sheet metal fabrication, installation and maintenance. CS&E specializes in steel fabrication, decking and siding. Illingworth and CS&E have separate ownership and management and operate out of separate facilities.

¶ 9. Petitioners-Respondents applied for unemployment compensation benefits for the time that they were locked out of Illingworth during week 24 of 1996. The Department of Industry, Labor and Human Relations determined that Petitioners-Respondents were entitled to unemployment compensation for the time they had been locked out, since they had not lost their employment due to a strike or bona fide labor dispute at their own facility.⁴ ¶ 10. Illingworth appealed this initial determination to the Appeal Tribunal, an Administrative Law Judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development. The ALJ affirmed, finding that Illingworth and CS&E were separate legal entities, and therefore separate establishments within the meaning of Wis. Stat. § 108.04(10). The ALJ also found that Petitioners-Respondents did not leave or lose their employment because of a strike or other bona fide labor dispute in active progress with the establishment in which they were employed and granted them the unemployment compensation benefits they sought.

¶ 11. Illingworth petitioned LIRC to review the ALJ's decision. LIRC reversed the ALJ's ruling and held that the employees were not entitled to unemployment compensation benefits. In addition to relying upon the findings of fact related above, LIRC found that the purpose of the union's strike was to exert pressure on all the Association members to acquiesce to the union's bargaining position. Unemployment Compensation Decision, Hearing No. 96606892MWG (Aug. 20, 1997) (R. at 19:13). LIRC termed the strike a "selective strike." Id. LIRC concluded that Illingworth's action was not a lockout under Wis. Stat. § 108.04(10)(d) because it "was a direct reaction to the selective strike." Id. LIRC also concluded that there was an active labor dispute at the establishment where Petitioners-Respondents worked, Illingworth's lockout.⁵ ¶ 12. Petitioners-Respondents appealed LIRC's decision to the circuit court. The circuit court reversed, finding that there was no strike against the Association or Illingworth based upon the statutory definitions of employee, employment and strike. The circuit court also found the phrase "subsequent to a strike or other job action of a labor union or group of employes⁶ of the employer" in Wis. Stat. § 108.04(10)(d) ambiguous. According to the court, a reasonable interpretation that would effect the statutory purpose that an employer not finance a strike against it is that the "or" distinguishes between union members and non-union employees who may strike. Correspondingly, the court held that Illingworth's action was a statutory lockout because it was not subsequent to a strike against itself.

¶ 13. LIRC and Illingworth appealed the circuit court's decision. The court of appeals certified this appeal and we accepted the certification.

II.

[1, 2]

¶ 14. Here, we review the decision of LIRC, not the circuit court's decision. Bunker v. LIRC, 197 Wis. 2d 606, 611, 541 N.W.2d 168 (Ct. App. 1995) (citing DILHR v. LIRC, 155 Wis. 2d 256, 262, 456 N.W.2d 162 (Ct. App. 1990)). LIRC's findings of fact are upheld if they are supported by substantial and credible evidence. Hagen v. LIRC, 210 Wis. 2d 12, 23, 563 N.W.2d 454 (1997). Here, we uphold most of LIRC's findings. However, there is no evidentiary support for its finding that the purpose of Local 18's strike was to pressure all Association members into acquiescing to its bargaining position. The only evidence of intent is that the union targeted CS&E because it employed the largest number of addendum workers, and the addendum workers were an issue during the negotiations. Unemployment Compensation Decision, Hearing No. 96606892MWG (Aug. 20, 1997) (R. at 19:10). According to LIRC's findings, Local 18 did not suggest to the Association that other contractors would be targeted, even though the union did not assure the Association that it would not strike other contractors. (R. at 19:12). However, Local 18 did not strike any other Association member. Given that LIRC's finding regarding the intent of the union's strike is not supported by substantial evidence, we will disregard that finding.

[3]

¶ 15. LIRC's statutory construction and application of that construction to the facts, is, as any legal conclusion, a question of law subject to judicial review. Trinwith v. LIRC, 149 Wis. 2d 634, 640, 439 N.W.2d 581 (Ct. App. 1989); Bunker v. LIRC, 197 Wis. 2d at 611. Even though we are not bound by LIRC's statutory interpretation, we consider whether the circumstances of the case warrant deference to its interpretation. "This court has identified three distinct levels of deference granted to agency decisions: great weight deference, due weight deference and de novo review." UFE, Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996) (citation omitted). ¶ 16. LIRC contends that we should grant great weight deference to its interpretation of Wis. Stat. § 108.04(10).⁷ We disagree.

Great weight deference is appropriate once a court has concluded that: (1) the agency was charged by the legislature with the duty of administering the statute; (2) that the interpretation of the agency is one of long-standing; (3) that the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) that the agency's interpretation will provide uniformity and consistency in the application of the statute. Harnischfeger Corp. v. LIRC, 196 Wis. 2d

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