Trinwith v. Labor and Industry Review Com'n, 88-1221

CourtCourt of Appeals of Wisconsin
Citation439 N.W.2d 581,149 Wis.2d 634
Docket NumberNo. 88-1221,88-1221
PartiesSteven J. TRINWITH, et al., Plaintiffs-Appellants, d v. LABOR AND INDUSTRY REVIEW COMMISSION, and Patrick Cudahy, Inc., Defendants-Respondents. . Oral Argument
Decision Date01 November 1988

Habush, Habush & Davis, S.C., with Kenneth R. Loebel, on the briefs, Milwaukee, for plaintiffs-appellants.

Glenn E. Kelley, on the briefs, for defendant-respondent Labor & Industry Review Commission.

Krukowski & Costello, S.C., with David F. Loeffler, on the briefs, Milwaukee, for defendant-respondent Patrick Cudahy, Inc.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.


Steven J. Trinwith (Trinwith) appeals from a judgment that denied him, and about 320 other individuals similarly situated, unemployment compensation (UC). 1 The judgment affirmed a decision of the Labor and Industry Review Commission (LIRC) denying Trinwith UC benefits. Trinwith advances two arguments: (1) that his employer, Patrick Cudahy, Inc. (Cudahy) locked him out of the establishment, and alternatively (2) that Cudahy's hiring of replacement workers at the reduced wage scale altered his employment relationship sufficiently to create UC eligibility. 2 We affirm because LIRC correctly determined that Trinwith struck Cudahy and because Wisconsin Supreme Court precedent bars recovery on the replacement employees--altered relationship theory.

Trinwith filed a claim for UC. A LIRC deputy issued a determination barring Trinwith's eligibility for benefits. See sec. 108.09(2)(b), Stats. Trinwith requested a sec. 108.09(2r), Stats., hearing before a hearing tribunal. An administrative law judge found that Trinwith left his employment because of a strike or other bona fide labor dispute and entered a decision determining his ineligibility for UC. See sec. 108.09(3)(b), Stats. Trinwith timely petitioned LIRC for review of the appeal tribunal's decision. See sec. 108.09(6)(a), Stats. After a hearing, LIRC issued findings and a decision denying UC for the same reasons as the appeal tribunal. Trinwith brought an action for judicial review. See secs. 108.09(7) and 102.23, Stats. The circuit court entered a judgment confirming LIRC's denial of UC. See sec. 102.23(1)(e), Stats.

LIRC's largely undisputed findings establish that Cudahy employed Trinwith and his co-claimants in maintenance and production work. Cudahy was in the business of slaughtering swine and in the production of fresh and processed meat. Local P-40, United Food and Commercial Workers International Union (Local P-40), represented Trinwith. The most recent contract between Local P-40 and Cudahy extended from October 12, 1982 to September 1, 1985. It was extended by the parties to December 31, 1986, to allow for negotiations for a new contract. Cudahy and union representatives began negotiations in November of 1986. On December 23, 1986, Cudahy made its final offer. Two days later, Cudahy informed Local P-40 that negotiations were at an impasse and that Cudahy would implement the terms of its final offer after January 1, 1987. The offer reduced Trinwith's salary from $9.33 to $7.35 per hour, a reduction of approximately twenty-one percent. Local P-40 and Cudahy met on December 29 and 30, 1986, but to no avail. On December 30, Local P-40 asked Cudahy to extend the contract, but Cudahy refused. The plant was closed on January 1, 1987, due to the New Year's holiday. On January 2, Cudahy resumed production despite a high rate of absenteeism. On January 3, Local P-40 explained Cudahy's final offer to its members. The membership voted 686 to 38 to reject Cudahy's offer.

LIRC further found that on January 4, 1987, Local P-40 set up picket lines at Cudahy's gates. On January 5, production and maintenance workers failed to appear for their morning shifts. To fill these positions, on January 7, Cudahy management decided to hire replacement employees. On January 9, Cudahy placed a newspaper advertisement to obtain replacement workers. After hiring replacements, the slaughtering and processing resumed gradually. A replacement employee, when hired, signed the following document:


I understand that I am a permanent replacement as defined by the National Labor Relations Act and as interpreted by the Employer with regard to decisions by the National Labor Relations Board and the Courts. The term "permanent replacement" does not imply or mean a guarantee of continued employment regardless of the Employer's needs or desires. I further understand that my continued status as an employee may be contingent on decisions of the National Labor Relations Board, any of its Regional Offices, or the courts or upon agreements reached under the authority of the National Labor Relations Act with the National Labor Relations Board, any of its Regional Offices, or the Courts.

________ ____

Employee Date


Clock #

By a letter of January 8, Cudahy informed Local P-40 members of the status of permanent replacement employees. The letter stated in part When a company hires permanent replacements in an economic strike, each striker retains his/her right to reinstatement, but only as openings occur. That is, if you offer to return to work after permanent replacements have been hired in your place, we would not have to recall you to work immediately. You would then be placed on a preferential recall list for a limited period. Thereafter, as openings occur, and if you are qualified, with seniority, we would recall you back. We would not be allowed by law to displace the permanent replacement workers to make room for you to return.

The facts as conceded by the parties and found by LIRC are binding upon this court. The application of a statute to an undisputed set of facts is a question of law. Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984). LIRC's application of sec. 108.04(10)(a) and (c), Stats. (1985-86), to these undisputed facts is not binding upon us. See Nottelson v. DILHR, 94 Wis.2d 106, 115-16, 287 N.W.2d 763, 768 (1980). For purpose of this opinion, we will be referring to the 1985-86 version of the lockout provision. However, sec.108.04(10)(d), Stats., now contains the lockout provision. As to legal conclusions, we sustain the LIRC's decision if supported by a rational legal basis and if its decision comports with the law including statutes, court decisions and constitutional provisions. Wehr Steel Co. v. DILHR, 102 Wis.2d 480, 487, 307 N.W.2d 302, 306 (Ct.App.1981), aff'd and modified, 106 Wis.2d 111, 315 N.W.2d 357 (1982).

Ordinarily, when the legislature charges an administrative agency to apply and enforce a particular statute, we accord "great weight" to the agency's construction and interpretation of the statute, and we will not set it aside unless clearly contrary to legislative intent. A.O. Smith Corp. v. DILHR, 88 Wis.2d 262, 267, 276 N.W.2d 279, 282 (1979). However, in a case like this, where the question involved is one of first impression, and the commission's interpretation does not reflect an unchallenged position, we accord the agency's interpretation "due weight." School Dist. of Drummond v. WERC, 121 Wis.2d 126, 133, 358 N.W.2d 285, 289 (1984). This court accords no deference to the decision of the circuit court in deciding the issues. Schachtner v. DILHR, 144 Wis.2d 1, 4, 422 N.W.2d 906, 907-08 (Ct.App.1988).

Trinwith argues that Cudahy locked him out when it reduced his wages by twenty-one percent and hired replacement workers to fill the positions. He contends that exclusion from work when the existing contract expired, and refusal, upon Local P-40's request, to negotiate further and simultaneously maintain the status quo, was a constructive lockout. See sec. 108.04(10)(c), Stats. 3

Trinwith further asserts that LIRC's narrow interpretation of "lockout" enervates the presumption of eligibility possessed by a benefit claimant. He argues that LIRC's interpretation alleviates the duty on the part of the party contesting payment of benefits to establish disqualification. See Kansas City Star Co. v. DILHR, 60 Wis.2d 591, 602, 211 N.W.2d 488, 493 (1973), cert. denied, 419 U.S. 870, 95 S.Ct. 129, 42 L.Ed.2d 108 (1974). Trinwith concedes that there was a work stoppage on January 4, 1987 to protest Cudahy's unilateral twenty-one percent wage reduction. Trinwith relies upon a statement of the Wisconsin Supreme Court in De Leeuw v. DILHR, 71 Wis.2d 446, 452-53, 238 N.W.2d 706, 710-11 (1976), for the proposition that the 1983 amendment of sec. 108.04(10) intended to include Minnesota's approach to the lockout situation. The De Leeuw court stated that Minnesota takes a "different approach" to lockouts because its statute secures a public policy of permitting UC eligibility for those who become unemployed "through no choice or fault of their own." Id. at 452-53, 238 N.W.2d at 710-11.

The central question is whether Trinwith engaged in a strike or other labor dispute or whether Cudahy locked him out. As noted, subs. (10)(c) specifically defines "lockout." Legislative definition of a word compels our acceptance of the term as defined, and we may not look elsewhere for a definition. See Sullivan Bros., Inc. v. State Bank of Union Grove, 107 Wis.2d 641, 646, 321 N.W.2d 545, 547 (Ct.App.1982). If a statute is plain and unambiguous, we must apply its plain meaning. See Meunier v. Ogurek, 140 Wis.2d 782, 786-87, 412 N.W.2d 155, 157 (Ct.App.1987). A statute is ambiguous if reasonable, well-informed persons could disagree as to its meaning. Standard Theatres, Inc. v. State, 118 Wis.2d 730, 740, 349 N.W.2d 661, 667 (1984). If a statute contains no ambiguity, we are not free to consult extrinsic sources to ascertain its meaning. Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985).

We agree with LIRC that sec. 108.04(10)(c), Stats., is unambiguous and...

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