Miller Brewing Co. v. Department of Industry, Labor and Human Relations, Equal Rights Div.

• Decision Date: 06 June 1997
• Docket Number: No. 94-1628,94-1628
• Citation: 210 Wis.2d 26,563 N.W.2d 460
• Parties: , 156 L.R.R.M. (BNA) 2730 MILLER BREWING COMPANY, Plaintiff-Respondent-Petitioner, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, EQUAL RIGHTS DIVISION, Defendant-Appellant, Becky Kozera, Defendant-Co-Appellant.
• Court: Wisconsin Supreme Court

Page 460

563 N.W.2d 460

210 Wis.2d 26, 156 L.R.R.M. (BNA) 2730

MILLER BREWING COMPANY, Plaintiff-Respondent-Petitioner, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, EQUAL RIGHTS DIVISION, Defendant-Appellant Becky Kozera, Defendant-Co-Appellant.

No. 94-1628.

Supreme Court of Wisconsin.

Argued April 29, 1997.

Decided June 6, 1997.

For the plaintiff-respondent-petitioner there were briefs by Ely A. Leichtling, Carmella A. Huser and Quarles & Brady, Milwaukee and oral argument by Ely A. Leichtling.

For the defendant-appellant the cause was argued by Richard Briles Moriarty, Assistant Attorney General with whom on the brief was James E. Doyle, Attorney General.

For the defendant-co-appellant there was a brief and oral argument by Michael J. Edmonds, Milwaukee.

Amicus curiae brief was filed by Marianne Goldstein Robbins, Leeann Gruwell Anderson and Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee for the Wisconsin State AFL-CIO.

Amicus curiae brief was filed by Patricia J. Meunier and Schneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, Milwaukee for the Wisconsin Federation of Nurses and Health Professionals.

Amicus curiae brief was filed by Robert K. Sholl, Patrick D. Dolan and Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee for the Wisconsin Manufacturers & Commerce.

Amicus curiae brief was filed by Ann M. Barry, Jennifer S. Walther and Buchanan & Barry, S.C., Milwaukee for the Wisconsin State Council of the Society for Human Resource Management.

¶1 N. PATRICK CROOKS, Justice

Miller Brewing Company (Miller) seeks review of a published decision of the court of appeals ¹ which reversed and remanded a judgment of the Circuit Court for Milwaukee County, Michael Guolee, Judge. The court of appeals held that Becky Kozera's (Kozera) claim under the Wisconsin Family and Medical Leave Act (FMLA), ² is not pre-empted by § 301 of the federal Labor Management Relations Act (LRMA). ³ We agree that Kozera's state law claim is not pre-empted by federal law, and therefore affirm the decision of the court of appeals.

I.

¶2 The relevant facts are undisputed. ⁴ Miller employs Kozera as a laboratory technician. Kozera is a member of the laboratory technicians' bargaining unit at Miller, which is represented for purposes of collective bargaining by Brewery Workers Local 9, UAW (Amalgamated) AFL-CIO. The terms and conditions of Kozera's employment are governed by a collective-bargaining agreement (CBA) between the union and Miller.

¶3 On February 9, 1990, Miller approved disability leave for Kozera during her pregnancy. Pursuant to the CBA, Kozera substituted her paid reserve sick leave for this disability leave. Miller expected Kozera to return to work on April 16, 1990, six weeks after the due date of her child. However, on March 12, 1990, Kozera verbally requested a six-week parental family leave under the Wisconsin FMLA, ⁵ to begin on April 16, 1990. Kozera also requested that, pursuant to the FMLA, she be allowed to substitute six-weeks of paid reserve sick leave for unpaid family leave. As of April 16, Kozera had 952 hours of paid reserve sick leave under the terms of the CBA.

¶4 Miller granted Kozera a six-week parental leave. However, the CBA provided that employees could substitute paid reserve sick leave only when they were in fact sick and had submitted a doctor's note acceptable to Miller. Since Kozera was not sick, Miller denied her request for substitution. Miller had never allowed an employee to use paid reserve sick leave for any reason except personal injury or illness.

¶5 On April 13, 1990, Kozera filed a complaint with the Department of Industry, Labor and Human Relations (DILHR), Equal Rights Division (ERD), alleging that Miller had violated her rights under the FMLA, Wis.Stat. § 103.10(5)(b). In order to successfully establish a violation of § 103.10(5)(b), Kozera was required to prove that: (1) she was covered by the FMLA at the time she requested the leave; (2) she requested a substitution for family leave; (3) Miller provided the type of leave requested; ⁶ (4) the substituted leave had accrued to her; and (5) Miller denied the substituted leave. See Leher v. Consolidated Papers, Inc., 786 F.Supp. 1480, 1485 (W.D.Wis.1992) (relying on decisions of DILHR interpreting the FMLA). Kozera and Miller in effect stipulated to elements one, two, and five; therefore, only elements three and four were in dispute.

¶6 On May 10, 1990, the ERD issued an initial determination finding probable cause to believe that Miller had violated the FMLA. Accordingly, on June 8, 1990, a hearing was held before an administrative law judge (ALJ) on the merits of Kozera's claim. The ALJ concluded that Miller had violated § 103.10(5)(b) by refusing to allow Kozera to substitute paid reserve sick leave for unpaid family leave, even though Kozera was not sick when she requested the leave. The ALJ ordered Miller to pay back pay, interest, and reasonable actual attorney's fees to Kozera. The ALJ did not make an explicit determination as to whether Kozera's claim was federally pre-empted by § 301 of the LRMA, despite the fact that Miller raised this issue.

¶7 On December 12, 1990, Miller petitioned the circuit court for judicial review of the ALJ's decision pursuant to Wis. Stat. § 227.52. The parties subsequently obtained a stay of the proceedings pending the outcome of Richland School Dist. v. DILHR, 174 Wis.2d 878, 498 N.W.2d 826 (1993). Richland resolved the issue of whether Kozera could substitute paid sick leave even though she was not sick, since the court held that "sec. 103.10(5)(b) does not require that the employe satisfy the conditions of leave eligibility set forth in the collective bargaining agreement before substitution is allowed." ⁷ Id. at 898, 498 N.W.2d 826. Consequently, federal pre-emption was the only issue remaining before the circuit court.

¶8 On April 20, 1994, the circuit court reversed the decision of the ALJ. In its memorandum decision, the circuit court relied on Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), in which the United States Supreme Court stated: "Section 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims 'substantially dependent on analysis of a collective-bargaining agreement.' " Id. at 410 n. 10, 108 S.Ct. at 1883 n. 10. The circuit court also explained that in Richland, this court indicated that the FMLA cannot be the source of compensation for substitution. Therefore, the circuit court concluded that because the CBA is the source of compensation for substitution, Kozera's claim is founded directly on rights created by the CBA, and is substantially dependent upon an analysis of the CBA. Thus, the circuit court held that Kozera's claim was pre-empted under § 301.

¶9 Kozera and DILHR appealed pursuant to Wis.Stat. § 227.58. On July 9, 1996, the court of appeals reversed the circuit court's decision. The court of appeals indicated that § 301 pre-empts a state law claim only if adjudication of the claim would require interpretation of a collective-bargaining agreement. Miller Brewing Co. v. DILHR, 203 Wis.2d 380, 387-88, 553 N.W.2d 837 (Ct.App.1996) (quoting Leher, 786 F.Supp. at 1483-84). The court determined that, in this case, it would not need to interpret the CBA to analyze Kozera's claim because the CBA unambiguously provided for the type of leave that may be substituted under the FMLA. In addition, the court concluded that, under the unambiguous terms of the CBA, such leave had accrued to Kozera. The court stated: "Lifting this fact from this agreement does not require interpretation of the agreement." Id. at 390, 553 N.W.2d 837 (quoting Leher, 786 F.Supp. at 1485). Accordingly, the court of appeals held that Kozera's claim was not pre-empted under § 301. Id.

II.

¶10 The pre-emptive effect of § 301 is a question of law. International Ass'n of Machinists & Aerospace Workers, IAM Local 437 v. United States Can, 150 Wis.2d 479, 487, 441 N.W.2d 710 (1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 718, 107 L.Ed.2d 738 (1990). Although this court generally is not bound by an agency's interpretation of a question of law, this court will defer to an agency's interpretation in certain situations. UFE Inc. v. LIRC, 201 Wis.2d 274, 284, 548 N.W.2d 57 (1996); State ex rel. Parker v. Sullivan, 184 Wis.2d 668, 699, 517 N.W.2d 449 (1994). This court has identified three levels of deference or review which may be granted to an agency's conclusion of law: great weight deference, due weight deference, and de novo review. UFE, 201 Wis.2d at 284, 548 N.W.2d 57; Jicha v. DILHR, 169 Wis.2d 284, 290-91, 485 N.W.2d 256 (1992). De novo review applies if a legal question is presented and there is no real evidence of any special agency expertise or experience. See Coutts v. Wisconsin Retirement Bd., 209 Wis.2d 655, 562 N.W.2d 917 (1997). We conclude that DILHR has no special expertise or experience in determining questions of federal pre-emption, and therefore determine that de novo review is applicable here. ⁸

III.

A. GENERAL PRINCIPLES OF FEDERAL PRE-EMPTION

¶11 The pre-emption doctrine is rooted in article VI of the United States Constitution, which is commonly referred to as the Supremacy Clause. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985). The question of whether federal law pre-empts state law is one of congressional intent. Brown v. Hotel & Restaurant Employees & Bartenders Int'l Union Local 54, 468 U.S. 491, 500, 104 S.Ct. 3179, 3184-85, 82 L.Ed.2d 373 (1984). Federal law pre-empts state law in three situations: (1) where Congress explicitly mandates pre-emption of state law; (2) where Congress implicitly indicates an intent to occupy an entire field of regulation to the exclusion of state law; or, (3) where state law actually conflicts with federal law....