Frito-Lay, Inc. v. Wisconsin Labor and Industry Review Commission

• Decision Date: 18 February 1980
• Docket Number: FRITO-LA,No. 79-238,INC,79-238
• Citation: 290 N.W.2d 551,95 Wis.2d 395
• Parties: , 30 Fair Empl.Prac.Cas. (BNA) 406, 22 Empl. Prac. Dec. P 30,869, 1 A.D. Cases 156 , Petitioner-Respondent, v. WISCONSIN LABOR AND INDUSTRY REVIEW COMMISSION, Respondent, James Lyons, Appellant. *
• Court: Wisconsin Court of Appeals

Page 551

290 N.W.2d 551

95 Wis.2d 395, 30 Fair Empl.Prac.Cas. (BNA) 406,

22 Empl. Prac. Dec. P 30,869, 1 A.D. Cases 156

FRITO-LAY, INC., Petitioner-Respondent, v. WISCONSIN LABOR AND INDUSTRY REVIEW COMMISSION, Respondent, James Lyons, Appellant. ^*

No. 79-238.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 12, 1979.

Opinion Released Feb. 18, 1980.

Opinion Filed Feb. 18, 1980.

Bruce F. Ehlke and Lawton & Cates, Madison, on briefs, for appellant.

James T. Murray, Jr. and Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, on brief, for petitioner-respondent.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

GARTZKE, Presiding Judge.

Complainant, James R. Lyons, has appealed from the order of the circuit court which set aside the order of the Wisconsin Labor and Industry Review Commission. The commission concluded that the respondent, Frito-Lay, discriminated against complainant because of his physical handicap in violation of the Wisconsin Fair Employment Act, sec. 111.31 et seq., Stats.1973, and ordered that he be reinstated as an employee. ¹

The commission found that complainant was employed by Frito-Lay at its Beloit, Wisconsin plant for almost five years until he was discharged. He had no chargeable accidents in that period. He worked as a truck driver at the Beloit plant during that period and drove trucks for over thirteen years before he began work for Frito-Lay. He has had a regular Wisconsin driver's license and a chauffeur's license for over twenty years, both of which were granted after he passed a sight examination, in spite of amblyopia (lazy eye) in his left eye. Frito-Lay laid him off in October 1975 pending a status check on his eye condition. Two ophthalmologists who examined complainant indicated that he was fully capable of continuing to drive a truck.

Frito-Lay discharged complainant October 31, 1975 because his eye condition did not meet the physical qualifications of the United States Department of Transportation (DOT) for truck drivers in interstate commerce. ²

The commission found that Frito-Lay's Beloit plant had interstate and intrastate truck runs and a system by which drivers determined their runs through seniority bidding. All drivers senior to complainant agreed to leave daily intrastate runs to him and to give him the "spotter" position in Beloit, which would allow him to stay inside Wisconsin.

The commission found that complainant was able safely and efficiently to perform the job duties of a truck driver on intrastate runs at the employer's standards and concluded that Frito-Lay discriminated against complainant because of his handicap.

The circuit court held that Frito-Lay and its drivers at the Beloit plant were engaged in interstate commerce and that the DOT physical qualifications must be met by every driver. The court held that even if Frito-Lay created a run wholly within Wisconsin for complainant, he would nevertheless be delivering goods in the stream of interstate commerce. The court therefore set aside the commission's order.

The unchallenged facts upon which the circuit court relied are as follows: The Beloit plant is both a manufacturing facility and a shipping terminal. It does not produce a complete line of Frito-Lay snack foods. Additional products are shipped to the Beloit plant from plants located outside Wisconsin. The products received from outside plants are not repackaged and are delivered with products produced in Beloit. All products are delivered by truck from Beloit to retailers in Wisconsin, Minnesota, Michigan, Iowa and Illinois. Wisconsin retailers receive about thirty-eight percent of the deliveries from Beloit. Under ten percent of the products manufactured by out-of-state plants are delivered by Beloit drivers directly to retailers without being reloaded onto trucks with Beloit products. Few products received from plants located outside Wisconsin remain at the Beloit warehouse longer than three days.

We note that orders are received at the Beloit plant and are filled from the products in the warehouse as well as from products manufactured at the plant. The record is silent as to whether the shipments from out-of-state origins to Beloit are made to fill preexisting orders from retailers, except for loads that are direct shipments to specific locations. The latter constitute less than ten percent of all loads handled by Beloit drivers.

Agency findings and orders under the Wisconsin Fair Employment Act are subject to review under ch. 227, Stats. sec. 111.37, Stats.1973. The scope of our review is the same as that of the circuit court under sec. 227.20. Sanitary Transfer & Landfill, Inc. v. DNR, 85 Wis.2d 1, 12, 270 N.W.2d 144 (1978). Questions of law decided by the agency are judicially reviewable under sec. 227.20(5). Pabst v. Department of Taxation, 19 Wis.2d 313, 322, 120 N.W.2d 77 (1963). The application of a statute to a particular set of facts is a question of law. Bucyrus-Erie Co. v. ILHR Department, 90 Wis.2d 408, 417, 280 N.W.2d 142 (1979), and cases cited.

Where the material facts are not in dispute and the only question is one of law, the court may substitute its judgment for that of the agency. Wis. Bingo Sup. & Equip. Co. v. Bingo Control Bd., 88 Wis.2d 293, 308, 276 N.W.2d 716 (1979); Hall Chevrolet Co., Inc. v. Dept. of Revenue, 81 Wis.2d 477, 483, 260 N.W.2d 706 (1978).

As the commission found that the employer discriminated against the complainant, the burden is upon Frito-Lay to show that its actions were exempt under the Wisconsin Fair Employment Act or otherwise. Chicago, M., St. P. & P. R.R. Co. v. ILHR Dept., 62 Wis.2d 392, 215 N.W.2d 443 (1974).

The issue on appeal is whether Frito-Lay has shown that complainant must meet the physical qualifications established by the DOT for persons who drive motor vehicles for motor carriers.

The DOT's requirements if applicable prevail over lesser requirements established by the state. Frito-Lay is a private carrier of property by motor vehicle, as defined in sec. 203(a)(17) of Interstate Commerce Act Part II (49 U.S.C. sec. 303(a)(17)). Part II of the Interstate Commerce Act is also known as the Motor Carrier Act. Congress provided by sec. 204(a)(3) of the Motor Carrier Act (49 U.S.C. sec. 304(a)(3)) that the Interstate Commerce Commission may prescribe qualifications for employees of private motor carriers and transferred that power in 1975 to the Secretary of Transportation. 49 U.S.C. sec. 1655(e)(6)(C). The DOT has established minimum qualifications for persons who drive motor vehicles for motor carriers. 49 C.F.R. sec. 391.1 et seq. ³

Congress "adopted a comprehensive plan for regulating the carriage of goods by motor truck in interstate commerce. The federal plan of control was so all-embracing that former power of states over interstate motor carriers was greatly reduced." Castle v. Hayes Freight Lines, 348 U.S. 61, 63, 75 S.Ct. 191, 192, 99 L.Ed. 68 (1954). The regulations establishing minimum qualifications for interstate drivers do not prevent a state from prescribing additional qualifications which are "not inconsistent or in conflict with" those regulations. Buck v. California, 343 U.S. 99, 101-02, 72 S.Ct. 502, 504, 96 L.Ed. 775 (1952). The visual acuity requirements of this state for truck drivers are less than and are inconsistent with the DOT's regulations.

Frito-Lay is therefore subject to the DOT driver qualifications if Frito-Lay is subject to the Motor Carrier Act.

The circuit court concluded that movements from the Beloit plant were in interstate commerce and that Frito-Lay was therefore subject to the Act, primarily on the basis of Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460 (1943). The issue in Walling was whether employees at branch warehouses at which interstate shipments of merchandise were received were "engaged in commerce" within the meaning of the Fair Labor Standards Act, 52 Stats. 1060, c. 676 (29 U.S.C. sec. 201 et seq.).

Walling is not controlling because it did not involve the interstate Commerce Act. "There is no single concept of interstate commerce which can be applied to every federal statute regulating commerce." McLeod v. Threlkeld, 319 U.S. 491, 495, 63 S.Ct. 1248, 1250, 87 L.Ed. 1538 (1943). Construction of every statute regulating "interstate commerce" presents "a unique problem in which words derive vitality from the aim and nature of the specific legislation." Federal Trade Commission v. Bunte Bros., 312 U.S. 349, 351, 61 S.Ct. 580, 582, 85 L.Ed. 881 (1941).

As pointed out in Tucker v. Casualty Reciprocal Exchange, 40 F.Supp. 383 (N.D.Ga.1941), "the (Interstate Commerce) Act does not purport to regulate all acts and matters indirectly related to interstate transportation by motor carriers." The question before this Court is whether the transportation at issue was in interstate or foreign commerce within the meaning . . . of the Interstate Commerce Act . . . . Southern Pac. Transp. Co. v. I. C. C., 565 F.2d 615, 617 (9th Cir. 1977).

We must determine whether Frito-Lay showed that all of its truck movements from Beloit are in interstate commerce, as defined by the Motor Carrier Act. Section 203(a) of the Act (49 U.S.C. sec. 303(a)) provides that as used in the relevant part of the Act: "(10) The term 'interstate commerce' means commerce between any place in a State and any place in another State or between places in the same State through another State . . . ."

The record includes the details of truck runs routed by Frito-Lay from Beloit during twenty-two days in August and September 1976. So far as we can determine, during that period Frito-Lay had 647 truck runs, 163 of which involved only Wisconsin destinations.

The record therefore contains substantial evidence for the finding by the commission that Frito-Lay had intrastate runs from its Beloit plant, so far as that finding is one of fact. Frito-Lay contends, however, that the runs from Beloit to Wisconsin...