Cook v. Industrial Commission

• Decision Date: 07 June 1966
• Citation: 31 Wis.2d 232,142 N.W.2d 827
• Parties: Bernard A. COOK et al., Appellants, v. INDUSTRIAL COMMISSION and Ladish Company, Respondents. Robert R. RADA et al., Appellants, v. INDUSTRIAL COMMISSION and Ladish Company, Respondents. Robert W. BULLOCH et al., Appellants, v. INDUSTRIAL COMMISSION and Ladish Company, Respondents. Frank T. SERAK et al., Appellants, v. INDUSTRIAL COMMISSION and Ladish Company, Respondents.
• Court: Wisconsin Supreme Court

Page 827

142 N.W.2d 827

31 Wis.2d 232

Bernard A. COOK et al., Appellants, v. INDUSTRIAL COMMISSION and Ladish Company, Respondents.

Robert R. RADA et al., Appellants, v. INDUSTRIAL COMMISSION and Ladish Company, Respondents.

Robert W. BULLOCH et al., Appellants, v. INDUSTRIAL COMMISSION and Ladish Company, Respondents.

Frank T. SERAK et al., Appellants, v. INDUSTRIAL COMMISSION and Ladish Company, Respondents.

Supreme Court of Wisconsin.

June 7, 1966.

Rehearing Denied July 27, 1966.

Stephen J. Hajduch, Milwaukee, for Bernard A. Cook, and others.

Zubrensky, Padden, Graf & Bratt, Milwaukee, for Robert R. Rada, and others.

Eisenberg & Kletzke, Milwaukee, for Robert W. Bulloch, and others, Sydney M. Eisenberg, Milwaukee, and Jerome F. Pogodzinski, of counsel.

Arnold J. Spencer, Chief Counsel, Madison, for Indus. Comm.

Brady, Tyrrell & Bruce, Milwaukee, for Ladish Co., E. J. Zarwell and John Hazelwood, Milwaukee, of counsel.

CURRIE, Chief Justice.

The two issues presented by this appeal are:

(1) Is there credible evidence to support the finding of fact made by the appeal tribunal and adopted by the Industrial Commission, that the plaintiffs lost their employment because of a strike by the machinists in the employer's establishment?

(2) If there is sufficient evidence to sustain this finding, does sec. 108.04(10), Stats., render plaintiffs ineligible for benefits where they were not parties to the labor dispute between the machinists' union and Ladish, and plaintiffs were willing and able to work during the machinists' strike if permitted to do so by Ladish?

Sufficiency of Evidence.

The key finding of fact by the appeal tribunal which supports the ultimate fact found, that plaintiffs lost their employment because of the strike, is as follows:

'The employer's decision to suspend all production during the duration of the strike rather than attempting to replace the striking machinists was reasonable and justified.'

In considering plaintiffs' contention that this finding is erroneous this court need only determine if 'there is any credible evidence which, if unexplained, would support the finding.' ¹

Plaintiffs contend that the employer's decision to stop all production immediately at the commencement of the strike was unwarranted, and was, in reality, based on economic factors not related to the strike. They attempted to establish this fact at the hearing by presenting a number of witnesses who were Ladish employees, each one testifying that in his particular area of the plant there was sufficient unfinished work available for him and others in his department to continue during the strike of the machinists. However, this testimony was clearly refuted by Ladish's primary witness, John Foley, its manager of labor and industrial relations.

Mr. Foley's testimony demonstrated that the 1,800 striking machinists were an integral part of the plant operation from start to finish and that their strike effectively stopped plant operations. He pointed out that machinists perform the following functions in the plant:

(1) All nonelectrical maintenance and repair. Machinists are needed if a furnace burns out or if any number of tools or machines need repair. Approximately 475 machinists are in the repair shop alone and their necessity to plant operation is evident as the plant's self-destructing equipment needs some type of repair at least once per shift;

(2) Operate all interior transportation except that involved in the forging cycle;

(3) Inspect the forgings to insure they are satisfactory;

(4) Clean and straighten the forgings;

(5) Warehouse and handle the raw die blocks and perform needed sandblasting to their surfaces.

Ladish's other witness was Mr. Howard Thompson, general supervisor for the maintenance and storage departments. He pointed out that the maintenance department has 485 employees, represented in part by machinists, and that this department performs complete maintenance of all facilities at the plant. He testified that in the forge shop alone, down-time frequency as it pertained to the maintenance department occurred 25 to 38 times daily. It was Thompson's opinion that employees in other crafts in the plant could not do the maintenance work of the machine repair men without some training.

Testimony presented by Ladish then clearly provides a credible basis on which the commission could make the finding it did. Interpretation of sec. 108.04(10), Stats.

Sec. 108.04(10), Stats., provides:

'An employe who has left (or partially or totally lost) his employment with an employing unit because of a strike or other bona fide labor dispute shall not be eligible for benefits from such (or any previous) employer's account for any week in which such strike or other bona fide labor dispute is in active progress in the establishment in which he is or was employed.'

Plaintiffs contend that sec. 108.04(10), Stats., does not apply to them because they were not striking employees, did not support the strike, and were ready and willing to go to work. However, the statute is not limited to an employee who 'left' his employment because of a strike or other bona fide labor dispute, but also includes an employee who 'lost' his employment due to such cause. To restrictively interpret the statute as plaintiffs request would render superfluous the statutory words 'or partially or totally lost.' This is ordinarily to be avoided under the cardinal rule of statutory interpretation that statutes should be so construed that no word or clause shall be rendered surplusage. ²

Furthermore, the construction and interpretation of a statute adopted by the administrative agency charged with the duty of applying the law is entitled to great weight. ³ In the instant case the commission appears as a respondent and interprets sec. 108.04(10), Stats., to include appellants within its purview. Additionally, two commission decisions should be noted which considered claims under sec. 108.04(10), Stats., by office workers in a manufacturing plant and various airline workers who lost their employment because of a strike by others against their employers. In both decisions a commission examiner acting as the appeal tribunal found that the workers 'lost' their employment because of a strike within the meaning of sec. 108.04(10). ⁴

The cases of Spielmann v. Industrial Comm. ⁵ and Schaeffer v. Industrial Comm. ⁶ supply further evidence that the commission has consistently for a considerable period of time interpreted the statute as denying benefits to employees who lose their employment because of a strike even though they are not parties to the strike. In both Spielmann and Schaeffer the non-striking employee-claimants were employed in a plant of their employer located some considerable distance from another plant hit by a strike which forced operations to be suspended in the plant in which the claimants worked. The commission denied benefits in both cases on the ground that the plant where the strike was in progress and the plant where the claimants worked were part of the same 'establishment.' Whether the two plants constituted one establishment would have been wholly immaterial if the non-striking employees were otherwise eligible for benefits. Significantly, the plaintiff employees in those two cases did not contend in this court that they were entitled to benefits on the theory advanced now by the instant plaintiffs.

The circuit court for Dane county has by a decision and judgment entered in 1959 in the case of Honkamp et al. v. Industrial Comm. and Consolidated Water Power and Paper Company specifically upheld the commission's interpretation of sec. 108.04(10), Stats. In that action the plaintiff non-striking employees were employed in the same plants as the striking employees. Judge BARDWELL in his memorandum decision of November 12, 1959, stated:

'Plaintiffs' counsel argues that because these workers in no way supported the strike called by the papermakers union and in fact did everything they could, even to the extent to crossing picket lines, in order to stay on the job, they should not be denied benefits under the Act. Perhaps there may be merit to this argument but if so it should be addressed to the legislature rather than the court, as the statute, 108.04(10), clearly by its terms denies benefits in such cases. * * *

'In the Honkomp, et al. situation there was obviously a strike in progress at the various establishments where the plaintiffs were working and therefore the Commission quite properly denied benefits to these plaintiffs in conformity with the statute.'

The Honkamp Case was a companion case in circuit court to that of Schaeffer v. Industrial Comm., ⁷ and the two cases were heard together and a single memorandum opinion was rendered by Judge BARDWELL. It is interesting to note that, although the same experienced counsel represented both sets of plaintiffs, an appeal was not taken to this court from the Honkamp Case circuit court judgment.

In the twelve biennial sessions of the Wisconsin legislature since the Spielmann Case ⁸ was decided in 1940, no substantive changes have been made in sec. 108.04(10), Stats. Unsuccessful attempts have been made to exempt from the labor dispute disqualification provision those individuals who lose their employment because of a strike or other bona fide dispute but who are not participating in, financing, or directly interested in the dispute. The following bills were introduced at various times in the legislature and all were indefinitely postponed.

In 1949 Bill 294, A, was introduced, by which it was proposed to add the following language to sec. 108.04(10), Stats.:

'Provided, that this section shall not apply if it is shown that he is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there...