Bunker v. Labor and Industry Review Com'n, 95-0174

CourtCourt of Appeals of Wisconsin
Citation541 N.W.2d 168,197 Wis.2d 606
Docket NumberNo. 95-0174,95-0174
Parties, 105 Ed. Law Rep. 740 Leon BUNKER, Plaintiff-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Loyal Public School, Peshtigo School District, Defendants-Respondents.
Decision Date10 October 1995

Page 168

541 N.W.2d 168
197 Wis.2d 606, 105 Ed. Law Rep. 740
Leon BUNKER, Plaintiff-Appellant,
v.
LABOR AND INDUSTRY REVIEW COMMISSION, Loyal Public School,
Peshtigo School District, Defendants-Respondents.
No. 95-0174.
Court of Appeals of Wisconsin.
Submitted on Briefs Sept. 1, 1995.
Opinion Released Oct. 10, 1995.
Opinion Filed Oct. 10, 1995.

Page 169

[197 Wis.2d 609] On behalf of plaintiff-appellant, the cause was submitted on the briefs of Mary E. Pitassi and Bruce Meredith of Wisconsin Education Association Council of Madison.

Page 170

On behalf of defendant-respondent, Labor and Industry Review Commission, the cause was submitted on the brief of Earl G. Buehler of Madison.

On behalf of Wisconsin Association of School Boards, Inc., an amicus curiae brief was filed by Michael Julka and Frank C. Sutherland of Madison.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

Leon Bunker, a school guidance counselor, appeals a judgment affirming a Labor and Industry Review Commission decision holding Bunker ineligible for unemployment compensation (U.C.) benefits during the summer of 1992 because he had a "reasonable assurance of employment" for the next school year with similar terms and conditions within the meaning of § 108.04(17)(a), STATS. 1 After Bunker's [197 Wis.2d 610] contract was not renewed in the spring of 1992, he received an offer of employment in a community approximately 180 miles from the community in which he had worked. LIRC decided that this employment offer terminated Bunker's U.C. benefits because location was not a criterion for determining similarity of the terms and conditions of employment under § 108.04(17)(a). The circuit court affirmed LIRC's decision. Because we conclude that location is a condition of employment and jobs that are approximately 180 miles apart are not similar, we reverse LIRC's decision.

The relevant facts are not in dispute. Bunker worked at the Loyal School District from 1988 to 1991. He left Loyal to work in the Peshtigo School District for the 1991-92 school year. Bunker's U.C. benefits were charged against these employers. Peshtigo did not issue Bunker a contract for the 1992-93 school year. After applying for U.C. benefits on June 15, 1992, Bunker received benefits from the week ending June 20, 1992 (week twenty-five) through the week ending July 25, 1992 (week thirty-two).

Bunker interviewed for a full-time position as an elementary school guidance counselor with the Fort Atkinson School District. Fort Atkinson is located approximately 180 miles from Peshtigo, the principal city in the Peshtigo School District, Bunker's former employer. On June 18, 1992 (week twenty-five) a representative of the Fort Atkinson School District informed Bunker that he was the first choice for the job. Bunker turned down the Fort Atkinson job because he hoped to find a job closer to his home. On July 20, 1992, (week thirty-two) Bunker accepted a job closer to his home and his U.C. benefits terminated at that time.

A DILHR deputy reviewed the case and determined that Bunker should not have received U.C. [197 Wis.2d 611] benefits from weeks twenty-five through thirty-two. The deputy reasoned that Bunker had a reasonable assurance of performing similar services in the next academic year within the meaning of § 108.04(17), STATS., in week twenty-five by virtue of the job offer from the Fort Atkinson School District on June 18, 1992. An administrative law judge and LIRC affirmed the deputy's decision on the grounds that location was not a condition of employment. Bunker initiated an action for judicial review pursuant to §§ 102.23 and 108.09, STATS. The circuit court affirmed LIRC, agreeing that location of a job was not a condition of employment, but rather was a personal circumstance of the employee.

We review the decision of LIRC, not the circuit court, and our scope of review is the same as the circuit court. DILHR v. LIRC, 155 Wis.2d 256, 262, 456 N.W.2d 162, 164 (Ct.App.1990). Under § 102.23(1), STATS., the findings of fact by LIRC, acting within its power shall, in the absence of fraud, be conclusive. DILHR, 155 Wis.2d at 262, 456 N.W.2d at 164. LIRC's legal conclusions are subject to judicial review, and

Page 171

LIRC's statutory construction and application of a statute to a particular set of facts is a question of law. Cornwell Personnel Assocs. v. LIRC, 175 Wis.2d 537, 544, 499 N.W.2d 705, 708 (Ct.App.1993).

We apply three levels of deference to LIRC's conclusions of law and statutory interpretations. Sauk County v. WERC, 165 Wis.2d 406, 413-14, 477 N.W.2d 267, 270 (1991). The highest amount of deference given to an agency's decision is "great weight." We should use the "great weight" standard when LIRC's experience and specialized knowledge aid it in interpreting the [197 Wis.2d 612] statute, when the agency's interpretation and application of the law is of long standing, or when a legal question is intertwined with factual, value, or policy determinations. Id. at 413, 477 N.W.2d at 270. We apply "due weight" to determinations of very nearly first impression, and "no weight" to determinations of first impression. Id. at 413-14, 477 N.W.2d at 270-71.

Our issue is one of very nearly first impression. LIRC and our courts have often considered whether jobs with differing wages, benefits and hours constitute similar employment for purposes of § 108.04(17)(a)1, STATS. 2 However, LIRC has not established any instance in which it has encountered the issue of whether location of a job should be considered in the determination of what constitutes similar employment under this statute. Location is distinguishable from the cases dealing with wages, benefits and hours of a job requiring an employee to commute or, especially to move, disrupts the employee's life in ways not easily measured by wages, benefits and hours. Because LIRC's experience...

To continue reading

Request your trial
7 cases
  • Thomsen v. WERC, 99-1730.
    • United States
    • Court of Appeals of Wisconsin
    • March 30, 2000
    ...decision of WERC, not that of the circuit court, and our scope of review is the same as the circuit court. See Bunker v. LIRC, 197 Wis. 2d 606, 611, 541 N.W.2d 168 (Ct. App. 1995). Although we are not bound by an agency's conclusions of law, we may accord them deference. See UFE, Inc. v. LI......
  • Brauneis v. State, 98-2212.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 27, 2000
    ...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 i......
  • Ashleson v. Labor & Industry Review Com'n, 11
    • United States
    • Court of Appeals of Wisconsin
    • December 9, 1997
    ...issue, we conclude that it is one of nearly first impression. We afford "due weight" to such determinations. Bunker v. LIRC, 197 Wis.2d 606, 612, 541 N.W.2d 168, 171 (Ct.App.1995). Where a legal question is intertwined with factual determinations or with value or policy determinations, cour......
  • Johnson v. Labor and Industry Review Com'n, 95-2346
    • United States
    • Court of Appeals of Wisconsin
    • March 5, 1996
    ...age exemption for fire fighters. Therefore, we give its interpretation due weight, not great weight. See Bunker v. LIRC, 197 Wis.2d 606, 612-13, 541 N.W.2d 168, 171 (Ct.App.1995). WAIVER Johnson argues that § 111.33(2)(f), STATS., is an affirmative defense to an age Johnson fails to discuss......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT