Consolidated Const. Co., Inc. v. Casey

• Decision Date: 02 March 1976
• Docket Number: No. 82,82
• Citation: 71 Wis.2d 811,238 N.W.2d 758
• Parties: CONSOLIDATED CONSTRUCTION CO., INC., Respondent, v. Patrick J. CASEY, Appellant, Department of Industry, Labor and Human Relations, Defendant. (1974).
• Court: Wisconsin Supreme Court

Page 758

238 N.W.2d 758

71 Wis.2d 811

CONSOLIDATED CONSTRUCTION CO., INC., Respondent, v.Patrick J. CASEY, AppellantDepartment of Industry, Labor and Human Relations, Defendant.

No. 82 (1974).

Supreme Court of Wisconsin.

Argued Oct. 27, 1975.

Decided March 2, 1976.

Curry First and Perry & First, Walter F. Kelly(argued), Milwaukee, for appellant.

Bachman, Cummings & McIntyre, Joseph Cummings(argued), Appleton, for respondent.

DAY, Justice.

The judgment appealed from reverses a decision of the Department of Industry, Labor & Human Relations(DILHR) finding that Patrick J. Casey had not been guilty of 'misconduct' within the meaning of sec. 108.04(5), Stats., ¹ and was therefore eligible to receive unemployment compensation following discharge by his employer, Consolidated Construction Co., Inc.(Consolidated).The issues raised on appeal are first, did DILHR err in finding that Mr. Casey's refusal to trim his hair and shave his beard did not constitute misconduct within the meaning of the statute, and second, even if Mr. Casey was properly discharged for 'misconduct,' is he still eligible for benefits because denial would unconstitutionally condition his eligibility for benefits on his waiver of an asserted first amendment right, i.e., to wear his hair and beard as he wished?

On March 24, 1972, Consolidated issued a grooming code for its employees that, in part, provided that hair should be of such length that it would not touch the ears or the collar, or fall below the eyebrows, or protrude below the band of 'proper worn headgear.'The grooming code also provided that 'the face will be clean shaven other than the wearing of an acceptable mustache or sideburns. . . .'Among the reasons given in explanation of the grooming code were the necessity of unobstructed vision when climbing, the possibility of hair coming in contact with tools, and the possibility of hair catching fire.

At that time Mr. Casey's hair extended about two inches below his shoulders.He tied his hair in a 'pony tail' while working.He also wore a full beard extending two or three inches below his chin.Mr. Casey notified his supervisor that he would not comply with the grooming code, but did offer to contain his hair in a hairnet.This was refused as an alternative on the ground that there was too much hair to fit within the hard hat and that, in any case, the net was flammable.No discussion of alternative safeguards for Casey's beard occurred.On March 28, 1972, Mr. Casey went to see Consolidated's Vice President and Director of Personnel and repeated his suggestion that he be allowed to use a hairnet.He was discharged for failure to comply with the rule.

The initial determination of DILHR was in favor of Mr. Casey.Consolidated appealed, and a fact-finding hearing was held before an appeal tribunal consisting of a single examiner.A Consolidated witness testified as to the hazardous nature of Mr. Casey's work; his duties included daily contact with drills, electric impact steel saws, torches, and other power tools used to cut and shape metal.These tools involved flame and sparks, and had various moving parts.They often had to be used on scaffolds and ladders, sometimes in positions where the tools were within a few inches of the face.Although a face shield may be used when sparks are present, the testimony was that it extends only as far down as the lower lip.Consolidated felt that a hairnet would not adequately restrain long hair under active job conditions, and believed that no fireproof hairnet was available.

Mr. Casey, on the other hand, physically demonstrated at the hearing that bending and lifting motions would not loosen his netted hair.He pointed out that the flammability of a hairnet concealed by a hard hat, which was always worn, was no greater than that of the hair itself.He testified that if his beard was ignited he could extinguish such fire before it reached his flesh.

Although there was some discussion of government regulations at the hearing, it is not argued on appeal that any specific federal or state safety regulation mandated the form of the Consolidated grooming code.It was also testified by the employer that some of its customers objected to employees with long hair and beards, but this likewise is not now urged as a justification for Mr. Casey's discharge.

Following the hearing, a decision was rendered reversing the initial determination in favor of Mr. Casey, and finding that he was ineligible for unemployment compensation.From this decision Mr. Casey appealed to the Industry, Labor and Human Relations Commission.The Commission reversed the decision of the appeal tribunal, finding that the employee's refusal to conform to the grooming code did not constitute conduct evincing a willful, wanton, or substantial disregard of the employer's interest amounting to 'misconduct' within the meaning of the statute.²The circuit court reversed the DILHR commission on the ground that the choice of safety measures was up to the employer rather than the employee, and that a refusal to comply with the employer's preference in this regard constituted misconduct.

Review by this court of DILHR decisions under the unemployment compensation statute, Chapter 108, is limited to questions of law:

108.09(7)(b)'Any judicial review under this chapter shall be confined to questions of law, and the provisions of ch. 102, 1971 stats., with respect to judicial review of orders and awards shall likewise apply to any decision of the commission reviewed under this section.'

Sec. 102.23, Stats., incorporated into Chapter 108, specifically provides that factual findings made by DILHR are conclusive:

'102.23 Judicial review.(1) The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive.'

Such factual findings cannot be disturbed on appeal unless unsupported by credible evidence on the record as a whole.McGraw-Edison Co. v. ILHR Department(1974), 64 Wis.2d 703, 709, 221 N.W.2d 677.However, the question of whether Mr. Casey's behavior was 'misconduct' is a question of law reviewable on appeal.McGraw-Edison Co. v. ILHR Dept., supra, at 713, 221 N.W.2d 677.

Moreover, since the question in this case--of hair and beard length--is one of industrial safety, this court must also recognize ³ that DILHR has an expertise in the area of safety, having been specifically charged by statute with authority in this area.⁴This court has long recognized that 'it is the duty of the Industrial Commission(now DILHR) to ascertain what safety devices or safeguards will make various places of employment as free from danger as the employment or place of employment may reasonable permit . . ..'Bentley Bros., Inc. v. Industrial Comm.(1928), 194 Wis. 610, 614, 217 N.W. 316, 317.

In the present case, DILHR found that Mr. Casey's hair could be held in a hairnet and concealed under the 'hardhat' worn on the job.There was ample evidence to support this finding, insofar as Mr. Casey demonstrated his ability to bend and move about with his fair sealed under his protective helmet.This court is bound by DILHR's factual finding in this respect.

Because alternative means of protection were available, DILHR found, and we agree, that Consolidated's inflexible hair length requirements were not 'reasonable' within the meaning of Gregory v. Anderson(1961), 14 Wis.2d 130, 138, 109 N.W.2d 675, 680, because there was no showing that the employer's business interest would be harmed if an alternate method were used:

'. . . It is a reasonable rule if a violation is reasonably likely to harm the employer's business interests.'

Since Consolidated's grooming code was not necessary for safety in the form in which promulgated, refusal to comply with it could not constitute statutory 'misconduct,' which this court has long defined as a 'wilful or wanton disregard of an employer's interests.'Boynton Cab Co. v. Neubeck(1941), 237 Wis. 249, 459, 296 N.W. 636, 640.

As to Mr. Casey's beard, we agree with DILHR that if a person's beard might subject him to hazards in performing his work, it would not be unreasonable to require the wearing of some protective covering.If a hazard arising from a beard could not be eliminated by the use of protective covering, the imposition of some limitation on the growth or wearing of a beard might be justified as a valid safety precaution.In the present case, however, DILHR failed to make a specific finding as to whether Mr. Casey's beard was a hazard.The question was not reached because DILHR's decision (supra, note 2) apparently assumed that there existed an alternative means of protecting the beard analogous to the hairnet.In fact, there is nothing in the record indicating that such an alternative...