Wisconsin Dept. of Industry, Labor and Human Relations, Unemployment Compensation Div. v. Wisconsin Labor and Industry Review Com'n

• Decision Date: 10 April 1991
• Docket Number: 89-1852,Nos. 89-1691,s. 89-1691
• Parties: , 66 Ed. Law Rep. 804 WISCONSIN DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, UNEMPLOYMENT COMPENSATION DIVISION, Plaintiff-Appellant, v. WISCONSIN LABOR AND INDUSTRY REVIEW COMMISSION, Sally B. Emerson and La Crosse Public School, Defendants-Respondents. WISCONSIN DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, UNEMPLOYMENT COMPENSATION DIVISION, Plaintiff-Appellant, v. WISCONSIN LABOR AND INDUSTRY REVIEW COMMISSION, Kathryn A. Schnitzius and La Crosse Public School, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 545

467 N.W.2d 545

161 Wis.2d 231, 66 Ed. Law Rep. 804

WISCONSIN DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, UNEMPLOYMENT COMPENSATION DIVISION, Plaintiff-Appellant, v. WISCONSIN LABOR AND INDUSTRY REVIEW COMMISSION, Sally B.

Emerson and La Crosse Public School,

Defendants-Respondents.

WISCONSIN DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, UNEMPLOYMENT COMPENSATION DIVISION, Plaintiff-Appellant, v. WISCONSIN LABOR AND INDUSTRY REVIEW COMMISSION, Kathryn A.

Schnitzius and La Crosse Public School,

Defendants-Respondents.

Nos. 89-1691, 89-1852.

Supreme Court of Wisconsin.

Argued Nov. 27, 1990.

Decided April 10, 1991.

Gregory A. Frigo, on brief Mary Lynn Endter, on brief Judy M. Rogers, on brief and Department of Industry, Labor and Human Relations (in Court of Appeals), Madison, Glenn E. Kelley, argued, for plaintiff-appellant.

Earl G. Buehler, Madison, for defendant-respondent, Labor and Industry Review Com'n.

Bruce Meredith, argued, Valerie Gabriel, on brief (in Court of Appeals), and Wisconsin Educ. Assn Council, Madison, for defendants-respondents, Sally B. Emerson & Kathryn A. Schnitzius.

BABLITCH, Justice.

These cases were consolidated by the court of appeals and are before the court on certification from the court of appeals pursuant to sec. 809.61, Stats. In each case the Department of Industry, Labor and Human Relations (Department) is appealing a judgment of a circuit court for La Crosse county which affirmed a decision of the Labor and Industry Review Commission (Commission) awarding unemployment compensation (UC) benefits to a La Crosse Public School's teacher for weeks 24 through 35 (summer) of 1988. The Commission concluded that the teachers, who worked the entire 1987-88 academic year in an instructional capacity, were eligible for UC benefits because they did not have a reasonable assurance of performing such services in the same capacity for the successive academic year when they were only offered guaranteed teaching positions for the first semester of the 1988-89 academic year. The Department challenges the Commission's legal findings and asserts that the reviewing courts of this state should accord deference to its decisions rather than the Commission's when the agencies disagree on the interpretation of the UC statutes. We hold that where deference to an agency's decision is appropriate, the courts of this state should continue to accord deference to the Commission's findings because the legislature intended the Commission to have final review authority over disputed Department decisions. We further conclude that deference to the Commission's decision is appropriate in this case and that the Commission's interpretation of the applicable UC statute is reasonable. Therefore, the decisions of the circuit courts awarding UC benefits to the employes are affirmed.

The facts in these cases are not in dispute. Sally Emerson was employed as a home economics teacher by the La Crosse Public Schools during the 1987-88 academic year. Under the terms of her contract, she worked 83 percent of full-time at a salary of $19,215. After being laid off at the end of the academic year which ended June 6, 1988, Emerson was offered a position as a long term substitute for the fall semester of the 1988-89 academic year. Emerson accepted this position and was to be paid $8,893.00.

Kathryn Schnitzius was employed as a teacher of the hearing impaired by the La Crosse Public Schools for the 1987-88 academic year. Under the terms of her contract, she worked 60 percent of full-time at a salary of $15,162.00. After being laid off at the end of the academic year which ended June 6, 1988, Schnitzius was offered a position as a long term substitute for the fall semester of the 1988-89 academic year. She accepted that position and was to be paid $8,910.00.

Emerson and Schnitzius separately applied for unemployment compensation benefits for UC weeks 24 through 35 of 1988. The parties agree that the eligibility for benefits of both employes is primarily governed by sec. 108.04(17)(a), Stats., which provides:

An employe of an educational institution or an employe of a government unit or nonprofit organization who provides services to or on behalf of an educational institution and who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or 2 regular terms, whether or not successive, if such employe performed such services in the first such academic year or term and if there is a contract or a reasonable assurance that such employe will perform such services in the 2nd such academic year or term.

On June 17, 1988, the Department determined that the employes were ineligible for UC benefits under sec. 108.04(17)(a), Stats., because the employes had worked in an instructional capacity before summer vacation and they had a reasonable assurance that they would perform such services in the next academic year or term. Emerson and Schnitzius appealed those determinations on June 20, 1988.

Pursuant to sec. 108.09(3), Stats., Emerson and Schnitzius each had a hearing before an appeal tribunal of the Department on July 20, 1988. The appeal tribunal found that the employes had a reasonable assurance of performing services in an instructional capacity in the fall 1988 term and affirmed the Department's initial determination to deny the employes UC benefits for the weeks between the 1987-88 academic year and the fall 1988 term.

On July 29, 1988, Emerson and Schnitzius petitioned for Commission review of the Department's decision pursuant to sec. 108.09(6), Stats. On November 25, 1988, the Commission issued its finding that the employees performed services in an instructional capacity for the employer in the 1987-88 academic year and that they did not have a reasonable assurance of performing such services in the 1988-89 academic year. The Commission found that the word "term," as used in sec. 108.04(17)(a) was intended to cover lapses in annual employment which occur at different times under different academic systems, other than the break between standard academic years under the conventional two-semester system. It emphasized that the use of "term" in the statute was not intended to provide an optional method of addressing the question of reasonable assurance between two academic years. Therefore, it concluded that academic years should be compared in this case. The Commission's reversal of the appeal tribunal's decision made the employes eligible for UC benefits during the weeks between the academic years.

The Department commenced separate actions for judicial review of the Commission's decisions pursuant to the provisions of secs. 108.09(7) and 102.23, Stats. On July 27, 1989, Circuit Judge Dennis G. Montabon filed a Memorandum Decision and Order which affirmed the decision of the Commission awarding UC benefits to Emerson. On August 16, 1989, Circuit Judge Michael J. Mulroy filed a Memorandum Decision and Order which affirmed the Commission's decision awarding UC benefits to Schnitzius. In each case the circuit court accorded deference to the Commission's decision.

The Department appealed the decisions of both circuit courts and filed a motion to consolidate the cases. The court of appeals granted that motion on October 16, 1989. The court of appeals certified both cases and we accepted the certification.

I.

This case presents the novel situation in which two agencies, each with responsibility and experience in interpreting and applying a statute, contend that its decisions interpreting the statute should be given deference by the reviewing courts of this state. Therefore, the first issue we must address is whether this court should review the decision of the Department or the decision of the Commission. Because the legislature intended to give final review authority of Department decision's to the Commission, we hold that it is the findings and conclusions of the Commission that must be reviewed by the courts of this state, rather than those of the Department. We also find that deference to the Commission's decision is appropriate in this case.

Both agencies have experience, technical competence, and specialized knowledge in interpreting and applying the UC statutes. The circuit court gave deference to the Commission's decision. The Department contends that this court should give deference to its legal conclusions and not the Commission's because the Department is the agency with primary responsibility for the administration of Unemployment Compensation law.

As the Department acknowledges, the decisions of the Commission have historically been given deference by the reviewing courts of this state. See, e.g., Ace Refrigeration & H. Co. v. Industrial Comm., 32 Wis.2d 311, 315, 145 N.W.2d 777 (1966); Indianhead Truck Lines v. Industrial Comm., 17 Wis.2d 562, 567, 117 N.W.2d 679 (1962); Fitzgerald v. Globe-Union, Inc., 35 Wis.2d 332, 337, 151 N.W.2d 136 (1967); Goranson v. ILHR Department, 94 Wis.2d 537, 545, 289 N.W.2d 270 (1980); Farmers Mill of Athens, Inc. v. ILHR, Dept., 97 Wis.2d 576, 580, 294 N.W.2d 39 (Ct.App.1980). We have emphasized that it is the factual and legal findings of the Commission that are scrutinized by the appellate court and not those of the appeal tribunal. See, e.g., Ace Refrigeration & H. Co., 32 Wis.2d at 315, 145 N.W.2d 777; Indianhead Truck Lines, 17 Wis.2d at 567, 117 N.W.2d 679. " 'The ultimate responsibility for findings is upon the commission itself.' " Ace Refrigerator & H. Co., 32 Wis.2d at 315, 145 N.W.2d 777 (quoting Indianhead Truck Lines, 17 Wis.2d at 567, 117 N.W.2d 679).

Nevertheless, the Department urges us to "take a fresh look at the issue of deference to agency expertise," by reexamining our practice of giving deference to the findings of the Commission in view of the...