Nottelson v. Wisconsin Dept. of Industry, Labor, and Human Relations

• Decision Date: 07 February 1980
• Docket Number: No. 77-285,77-285
• Citation: 287 N.W.2d 763,94 Wis.2d 106
• Parties: Darrel C. NOTTELSON, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF INDUSTRY, LABOR, AND HUMAN RELATIONS and A. O. Smith Corp., Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 763

287 N.W.2d 763

94 Wis.2d 106

Darrel C. NOTTELSON, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF INDUSTRY, LABOR, AND HUMAN RELATIONS and A. O. Smith Corp., Defendants-Respondents.

No. 77-285.

Supreme Court of Wisconsin.

Argued Nov. 6, 1979.

Decided Feb. 7, 1980.

Lee Boothby, Berrien Springs, Mich., argued and Keith R. Clifford, Madison, on brief, for plaintiff-appellant.

Barry M. Levenson, Bureau of Legal Affairs, Madison, David C. Sullivan, Milwaukee, argued, and Sigrid E. Dynek, Assistant Gen. Counsel, A. O. Smith Corp., Milwaukee and Uclair W. Brandt, director, on brief, for defendants-respondents.

ABRAHAMSON, Justice.

This appeal is from a judgment of the circuit court affirming a decision of the labor and industry review commission (commission) of the Department of Industry, Labor, and Human Relations (department) denying unemployment compensation to Darrel C. Nottelson, the claimant. We reverse the judgment and remand the matter to the circuit court with directions to remand the record to the department for further proceedings consistent with this opinion. Secs. 102.24(1) and 108.09(7), Stats.

I.

The following facts appear in the findings of the commission and the undisputed evidence. The claimant began his employment with A. O. Smith Corporation on October 30, 1947 and was discharged on July 11, 1975. For many years prior to claimant's discharge, A. O. Smith had been a party to collective bargaining agreements which contained union security clauses requiring employees of A. O. Smith to join the union and to pay union dues as a condition of employment. ¹

In 1966 claimant became a member of the Seventh Day Adventist Church, which includes as part of its teachings the tenet that its members not join or financially support a labor union or similar organization. On January 1, 1975, claimant stopped paying his union dues on the ground that his religious beliefs prevented him from being a member of the union or financially supporting the union. There is no question that the claimant was a good and valued employee and that he was sincere in his religious beliefs.

Between December 1974 and July 1975 claimant met with representatives of the union and A. O. Smith in an attempt to retain his employment without being required to pay union dues. He suggested to his union, Smith Steel Workers, Local 19806, that he "pay a non-religious, non-union charity the sum equal to (his) union dues." ² The executive board of the union twice rejected this proposal and expelled him from the union for non-payment of dues. On April 15, 1975, the union sent A. O. Smith a list of over 100 employees who were expelled from the union because of non-payment of dues. The claimant was the only person on the list who based his non-payment of dues on religious grounds.

The claimant also met with company personnel in 1975 in an attempt to resolve his dilemma. There is nothing in the record to show that A. O. Smith made any effort to talk with the union about the claimant or that A. O. Smith took any steps to aid or support the claimant's efforts to continue employment.

The claimant testified that he was told by A. O. Smith that he would be fired if he did not pay the union dues; that he had "made inquiry" about his legal rights; and that he believed that the union security clause of the collective bargaining agreement could not be applied to him because of his religious convictions and that he could not lawfully be discharged. In May, 1975, an A. O. Smith personnel manager advised the claimant that he was to be discharged.

In March, 1975, the claimant filed a grievance with the United States Equal Employment Opportunity Commission (EEOC). In April 1975, the claimant obtained a temporary restraining order from the federal district court in the eastern district of Wisconsin preventing his discharge by A. O. Smith. On July 3, 1975, the EEOC found "reasonable cause" to believe that both A. O. Smith and the union had discriminated against the claimant on the basis of his religion in violation of Title VII of the Civil Rights Act of 1964, ³ as amended in March, 1972. On July 10, 1975, the federal district court denied claimant's request for a preliminary injunction preventing his discharge because claimant had not exhausted his federal administrative remedies. ⁴ Immediately after this federal district court decision, on July 11, 1975, A. O. Smith discharged the claimant for his failure to pay union dues.

The record is clear that the claimant did not want to quit his employment and that he resisted being discharged.

After his discharge from employment by A. O. Smith Corporation, the claimant sought unemployment compensation. Initially the department allowed claimant's claim for unemployment compensation, and he received $1,582.00. A. O. Smith requested review of this initial finding by an appeal tribunal of the department. Sec. 108.09, Stats. In deciding that the claimant was not entitled to unemployment benefits and was required to repay the sums he had previously received, the appeal tribunal concluded that claimant's failure to pay union dues on religious grounds constituted a voluntary termination of "his employment within the meaning of section 108.04(7) of the statutes, and that such termination was not with good cause attributable to the employer within the meaning of section 108.04(7)(b) of the statutes, or within any other exception to section 108.04(7)(a) of the statutes." The claimant then sought review of the appeal tribunal decision, and the commission affirmed the appeal tribunal's denial of benefits. Sec. 108.09(6), Stats. The claimant then sought judicial review. Sec. 108.09(7), Stats. The circuit court affirmed the commission's decision and judgment was entered denying unemployment compensation benefits to the claimant and ordering the claimant to repay the sum of $1,582 to the unemployment reserve fund.

II.

We turn first to the scope of judicial review of the commission's determination. Sec. 108.09(7), Stats., provides that judicial review under chapter 108 is confined to questions of law, and that the provisions of chapter 102, Stats., with respect to judicial review of orders and awards apply to any decision of the commission reviewed under sec. 108.09(7). ⁵ Sec. 102.23(1), Stats., provides that "(t)he findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive," and sec. 102.23(1)(d), Stats., states that an order or award of the commission or a judgment rendered thereon "shall be set aside only upon the following grounds:

"1. That the commission acted without or in excess of its powers.

"2. That the order or award was procured by fraud.

"3. That the findings of fact by the commission do not support the order or award."

Sec. 102.23(6), Stats., further states:

"(6) If the commission's order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's order or award and remand the case to the commission if the commission's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence."

It is axiomatic that the commission's findings of fact are conclusive on appeal so long as they are "supported by credible and substantial evidence," sec. 102.23(6), Stats., and that any legal conclusion drawn by the commission from its findings of fact is subject to judicial review. We have often stated that the court is not bound by the agency's determination of a question of law.

The parties agree that the issue on appeal is whether the claimant should be denied unemployment compensation benefits on the ground that he voluntarily terminated employment without good cause attributable to the employing unit. This issue presents three questions: (1) What was the conduct of the employee and the employer; (2) what is the meaning of the legal concepts "voluntary termination" and "good cause attributable to the employing unit" as used in sec. 108.04(7)(a), (b), Stats.; and (3) did the conduct of the employee constitute "voluntary termination" and did the conduct of the employer constitute "good cause attributable to the employing unit" as those statutory terms have been interpreted.

For purposes of the scope of judicial review, the first question, concerning the conduct of the employee and employer, has traditionally been viewed as a question of fact, ⁶ and the second question relating to the meaning of the statute has been viewed as a question of law. One of the most troublesome issues in administrative law is determining whether the third question, namely, the application of a statutory concept to a concrete fact situation, should be treated as a question of fact or of law for purposes of judicial review. ⁷ In many cases we have said that the determination of whether the facts fulfill a particular legal standard is a question of law. ⁸ The conclusions that there is a "voluntary termination" or that "good cause attributable to the employing unit" exists are drawn from the underlying findings of fact, and we label them legal conclusions. ⁹

Nevertheless, merely labeling the question as a question of law and labeling the commission's determination as a conclusion of law does not mean that the court should disregard the commission's determination. Determination of voluntary termination or good cause attributable to the employing unit calls for a value judgment, and judicial review of such a value judgment, though a question of law, requires the court to decide in each type of case the extent to which it should substitute its evaluation for that of the administrative agency. ¹⁰ We have recognized that when the expertise of the administrative agency is significant to the value judgment (to the determination...