Wehr Steel Co. v. Department of Industry, Labor and Human Relations, 80-1393

• Decision Date: 02 February 1982
• Docket Number: No. 80-1393,80-1393
• Parties: The WEHR STEEL COMPANY, Petitioner-Appellant, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, Thomas Du Charme, George E.Purifoy and Walter L. Breedlove, Respondents-Petitioners.
• Court: Wisconsin Supreme Court

Page 357

315 N.W.2d 357

106 Wis.2d 111

The WEHR STEEL COMPANY, Petitioner-Appellant, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, Thomas Du Charme, George E.Purifoy and Walter L. Breedlove Respondents-Petitioners.

No. 80-1393.

Supreme Court of Wisconsin.

Argued Jan. 4, 1982.

Decided Feb. 2, 1982.

Robertamarie Kiley (argued), Madison, for respondents-petitioners; James L. Pflasterer, Legal Staff Director, Madison, on briefs.

Thomas W. Scrivner (argued), Milwaukee, for petitioner-appellant; Marshall R. Berkoff, Michael, Best & Friedrich, Milwaukee, on brief.

James G. Derouin, Richard J. Lewandowski and DeWitt, Sundby, Huggett & Schumacher, S.C., Madison, for amicus curiae Wisconsin Ass'n of Mfrs. and Commerce.

STEINMETZ, Justice.

The issue in this case is what test or standard is to be applied in determining whether the total circumstances of a record demonstrate an employee's leaving work without permission of the employer is conduct which is misconduct under the meaning of sec. 108.04(6)(a), Stats. ¹

This case has been involved in many levels of the decision-reviewing process. The initial determination was made by a properly delegated Department of Industry, Labor and Human Relations' examiner on August 18, 1978. That decision determined that the claimant employees committed misconduct under the facts which will be set forth later. The next review was considered by an appeal tribunal which is one of approximately 26 hearing examiners employed by the Department of Industry, Labor and Human Relations, and this tribunal also found misconduct was committed by the employees.

The issue then was considered by the Labor and Industry Review Commission which is the state agency responsible for Wisconsin administrative review determinations in three subject areas: equal rights, worker's compensation and unemployment compensation. This commission found the employees were suspended for actions which did not constitute misconduct, and, therefore, they were eligible for unemployment benefits under sec. 108.03, Stats. ²

The case was appealed to the circuit court for Milwaukee County, the Honorable Leo B. Hanley, Reserve Judge, presiding. Judge Hanley entered judgment on May 23, 1980, affirming the findings and decision of the review commission which found no misconduct.

An appeal was taken by the employer to the court of appeals which reversed the decision of the circuit court on May 7, 1981, at 102 Wis.2d 480. The court of appeals remanded the case to the review commission for a proper finding of fact as to whether, under all the facts and circumstances, the heat in the industrial plant did in fact constitute a health and safety hazard to the claimants.

The commission petitioned this court for a review of the court of appeals decision.

The Wehr Steel Company manufactures steel castings. At the time the employee conduct which is at issue occurred, Walter Breedlove had worked for Wehr Steel for five years as a finisher in the roll-over molding department of the foundry. Thomas Du Charme had worked for the company for approximately nine months in the same capacity. That job position entails finishing the molds by putting the core in, closing the molds, packing them and completing the mold. The metal is poured as close as ten to fifteen feet away from the finishers. George Purifoy had worked for Wehr Steel for almost five years. He was a gaggerman who made reinforcements that are used to put the molds together. He worked some 30 feet from station four, which was the work station of Breedlove and Du Charme.

On two occasions in July of 1978, July 7 and July 19, the named claimants, among others, walked off their jobs without permission claiming it was too hot to work. On July 7, the three claimants and six other employees left work. On July 19, approximately 17 employees, out of a work force of 530, walked off their jobs.

Written disciplinary warnings were issued to the claimants for leaving without permission on July 7. They were told they had violated plant rule 14, ³ which requires employees to have "permission from their foreman to leave their department during working hours," and also warned that a repetition would result in immediate discharge.

The claimants, among others, again walked off their jobs without permission on July 19, 1978. Around 4 p. m., approximately one hour after their shift began that day, the claimants and others told Nancy Zettel, the supervisor in the roll-over molding unit, that they were going home because it was too hot. Zettel reminded the employees of the recent disciplinary warnings, and stated they did not have her permission to leave.

The threatened walkout was reported to Charles Harwell, the plant manager. All employees, including the claimants, were called to the conference room at approximately 4:30 p.m. Harwell explained there were "customers depending on us" and that the employer had production obligations to meet. The outside temperature was 84o and Harwell indicated conditions were not "excessively hot" in the foundry that day. The employees were advised that if heat became a problem, they would be granted extra breaks, extra relief would be made available, and refreshments and salt tablets would be supplied. They were also informed that if they felt management's actions were improper, their proper course of action was to file a grievance through the union, not to walk out. Employees were specifically advised that anybody walking out without permission would be "facing discharge."

Most of the 530 plant employees who worked on July 19 completed their shifts. One employee went home with permission, since he was ill. Only approximately 17 of the 200 second shift employees left without permission. Breedlove and Du Charme left at 5:25 p. m. and Purifoy left at 5:28 p. m. Initially, the individual claimants were discharged. The discharges, however, were subsequently converted to disciplinary suspensions without pay based upon an agreement reached with their labor organization.

It is undisputed that employees can obtain permission to leave, because of the heat, from either of two sources: their foreman or the medical department.

This court in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941), fashioned the following definition of misconduct:

"(Misconduct is) ... conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The scope of judicial review of the commission's decision is set forth in sec. 108.09(7), Stats., ⁴ and is limited to questions of law.

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) 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."

Though the commission's findings of fact are conclusive on appeal as long as they are "supported by credible and substantial evidence," sec. 102.23(6), Stats., any legal conclusion drawn by the commission from its findings of fact is subject to judicial review. The court is not bound by the agency's determination of a question of law. Nottelson v. ILHR Department, 94 Wis.2d 106, 287 N.W.2d 763 (1980); Vocation. Tech. & Adult Ed. Dist. 13 v. ILHR Dept., 76 Wis.2d 230, 243, 251 N.W.2d 41 (1977).

In Milwaukee Transformer Co. v. Industrial Comm., 22 Wis.2d 502, 509-10, 126 N.W.2d 6 (1964), we stated:

"It is well recognized that the court must accept the commission's determinations on such findings of fact if supported by credible evidence on the record as a whole.

"On the other hand, any determination that (the employee's) conduct was 'misconduct' within the standards set forth under sec. 108.04(5), Stats., is a conclusion of law."

The court then quoted Cheese v. Industrial Comm., 21 Wis.2d 8, 15, 123 N.W.2d 533 (1963):

" 'With respect to the second point of difference, insofar as a person's acts, or his intent in doing such acts, are questions of fact, where the evidence and reasonable inferences therefrom would support any one of two or more findings, a finding by the commission is conclusive.

" 'Here, however, the question is whether the facts fulfill a particular legal standard. This court determined that the term "misconduct connected with his employment" as used in sec. 108.04(5), Stats., was an ambiguous term of doubtful meaning, and found it necessary to interpret it with the view of effecting the general purpose of the...