*1 Department others, Appellants, De Leeuw In dustry, Labor others, & Human Relations Respondents. (1974). Argued 26, 1975.
No. November Decided February 23, 1976. reported (Also 706.) in 238 N. W. 2d appellants For the there was brief David Loeffler Goldberg, Milwaukee, Previant & Uelmen of and oral argument by Mr. Loeffler. respondent Department Industry,
For the Labor & argued by Relations cause James L. Human whom on the brief were Uclair W. Pflasterer counsel, Brandt, Pearson, chief and David A. assistant counsel. chief unemployment compensation C. In J.
Wilkie, appeal plaintiff- case the sole issue on is whether the five *2 appellants, bricklayers employed by Company, Nelson & general Inc., firm, defendant-respondent construction here, correctly ineligible were held for covering compensation the time unem- after each became ployed September 6, they until since lost because of a bona fide labor in (involving employees Milwaukee area other re- spondent employers), being and other ac- such denial provisions cordance with the sec. Stats. deputy commissioner, appeal tribunal Department Industry, Human Relations Labor & (DILHR) all held to this effect and determination agree. was confirmed the circuit court. We undisputed. The facts are The five claimants are employed by Milwaukee-area masons Company, Nelson & general Inc., a Although construction firm. Nelson Racine, during Wisconsin, based the summer of 1968 it had several multi-million projects dollar construction four-county area Washing- Milwaukee, covered ton, Wаukesha, and Ozaukee counties. It awas member the Allied Employers Construction Association (ACEA), bargaining agent company construction employers four-county in this area. July 18,1968, negotiations
On after for a new contract with the had impasse laborers reached an and a strike imminent, seemed ACEA locked out the laborers in this four-county though area. Even mason work was avail- area, able the effect of the put lockout was to area masons out work. Masons cannot work without laborers who are needed mortar, carry to mix block, and scaffolding. construct
Esche and Anderson were two Milwaukee-area masons began. who were laid off when the lockout Esche called a Nelson foreman in Racine and asked for work in July 22d days, on to work there for two
Racine. went He unemployed. Anderson 23d, after which he was men July 30th, off. Both when he was laid worked until particular projects on worked until the mason work assigned comрleted. to was a Milwaukee-area mason who had been Kerber was assigned temporarily prior to the Racine area particular type lockout in order to set a at of stone project assignment temporary there. certain This was August completed 2d, on after which Kerber unem- was ployed. Drichta another Milwaukee mason was was who working project on a Racine when the lockout occurred. He continued in Racine until this done August 13th, unеmployed. Fallon, on after which he was mason, assigned fifth project was also to a Racine at *3 However, the time of the lockout. he was out of work injury July July an from with 2d to 22d. He to returned day, July work in Racine for one 23d. The he was working on was finished on day, and he was there- unemployed. after
Mason work was four-county' available in the area during period, but these five masons could not re- jobs turn to there of the lockout. Milwaukee-area masons were out of work bеcause of the lockout. Nelson willing to continue these five masons Racine but could not because demand for mason work there, was low and there were no The available. five claimants continued to be Septem- until 6, 1968, ber at which time the lockout.ended, and both laborers and masons returned to work. controversy
This meaning surrounds the interpre- tation of sec. (10), 108.04 Stats., providés- which as (cid:127) (cid:127) follows: employe An who (or has left partially “Labor totally lost) or emрloyment his unit with employing because of a strike or other bona fide shall eligible not be for benefits from (or such any previous)
449
any
employer’s
which such
account for
week
progress
in active
other bona fide labor
(Empha-
employed.”
he is or was
establishment
supplied.)
sis
law,
Question
first as
here
of
Our review
involves
second,
meaning
of the statute
and construction
proper
causation
application of
of
as to the
standard
undisputed
facts
casе.
previously determined that whether
Our decisions
undisputed
of
certain
facts constitute loss
question
dispute presents a
of law.1
of a labor
reviewing
law,
question
defer
In
this court does
such
legal
applica-
a certain extent to the
construction and
charged
agency
tion of a
with enforcement
statute
guided by
are
rule of
further
statute.2 We
questions
which,
law,
review under
as
we will
agency
enforcing
reverse a determination made
interpretation
among
оne
where such
several reason-
interpretations
made, equally
that can be
able
consistent
purpose
of the statute.3
question
crucial
in this case
on
first
is to settle
of causation for
five
standards
1
Mfg. Corp.
Electric
(1955),
Marathon
Industrial
Comm.
269
394, 404,
573,
also: Mc
576. See
2d
2d
Wis.
N. W.
70 N. W.
Dept. (1974),
Co. v. ILHR
703, 709,
Graw-Edison
2d
Wis.
677, Milwaukee
Co. v. Industrial Comm.
2d
N. W.
Transformer
(1964),
502,
(whether
510,
22 Wis. 2d
2d 6
found
N. W.
facts
(5), Stats.,
question
misconduct under
constitute
sec.
Equipment
Service1,
law); Fish
Sales &
Inc.
v. White
(whether
found
221 N.
2d 864
facts
con
W.
Wis.
*4
voluntary
(7),
under sec. 108.04
terminatiоn
stitute
law).
Stats.,
question of
is
2
supra,
Comm.,
Co.
v. Industrial
foot
Milwaukee Transformer
v. Industrial
(1966),
Cook
Comm.
page 510;
31
2d
1,
Wis.
at
note
Tecumseh
v.
see also:
Products Co.
827;
232, 240,
142 N. W.
118,
(1964),
Board
450 determining
applicants. adopt in for” test We “but unemployment of these whether the lockout caused disqualified employee five masons. Under this test Stats., only (10), under in those cases sec. 108.04 existence of which he would be but for the bona fide This test more consistent statutory purpose providing support (cid:127)the main income than a test workers4 “substantial factor” seeing yet be, purpose would it not defeat the does employer to it that the does not finance a labor principal.5 he ais employed “but for” test is the other standard jurisdictions and is the test recommended most com- subject.6 mentators on this It is test which has been employed by appeal tribunals within DILHR.7
Having applied determined the test to be in determin- ing the unemployment, pass cause we now ato con- application sideration of the of the “but for” test. undisputed It is there work was available Milwaukee area for these masons finished temporary in Racine. It also conceded that prevented factor which these Milwaukee masons taking up from this Milwaukee-area work the lock- was out of ACEA. laborers From these two facts it fol- 4 Equipment Fish Service, Inc., White suрra, Sales & footnote 1, page 746; Milwaukee- at Comm., Co. v. Industrial Transformer supra, page 1, footnote at 511. Mfg. Corp. Marathon Electric Comm., supra, v. Industrial foot 1, page at note 408. example: See, Dispute Williams, Jerre The Labor S. Dis for qualification Primer and Some Problems —A Vand. L. Unemployment Shadur, 344; 338 at Rev. Milton I. Benefits Dispute” Disqualification the “Labor (1950), 17 U. Chi. L. Rev. 294 at 7 See, example: Digest Unemployment Wisconsin Compensation Cases, LD-580, Unemployment Due to Labor Dis pute, 38-A-561, at Case where it was decided that a ineligible for benefits worker because “there him available for but for the work strike.” *5 as a matter of law that five masons would have lows these They working of the lockout. been but the existence during unemployed .prior were time thus September resumption 6th of” a bona work “because ineligible dispute and for benefits so were fide during period. this The con- claimants seek to this conclusion avoid tending they employment first lost their during demand for low mason work in Racine way, summer of 1968. Put another these five masons that, they work, but for lack assert this would during in Racine But rea- this time. this soning only superficially persuasive, and must ulti- mately light rejected, peculiar be two factors employment this case. The first nature of in the industry. employ- noted, construction the trial court As industry temporary ment this involves succession of projects, finishing moving with the workers one project on to another where work is available. second factor is that these claimants are all Milwaukee- masons, presence area and their in the Racine area was temporary. example, For Kerber was the Racine area particular type in order to set a of stone and would presumably have returned to the Milwaukee area im- mediately completing special project. after this also, So up working Esche and Drichta ended for a brief time in solely the Racine area stopgaр as a measure because they out of work Milwaukee.
Thus, when these completed Milwaukee-area masons there area, what work was in the they Racine naturally look area, first to the Milwaukee both because regular was their area of and because that was where work was available. Because of the labor dispute, however, up work, could take thus, point, they at this became of a labor words, In other unavailability of work regarded Racine area cannot in this case be as a there was other work *6 factor when causative relevant regular employment. place claimants’ in these available Comm.,8 length Industrial in Cook v. noted at As we legislative bring made to about many have been efforts (10), Stats., allow change 108.04 which would in sec. disputes. nonparticipants fide labor bona legislature adopt proposals, these By of the the failure placed on the approval the сonstruction indicated it has agency dispute provision the administrative labor charged Unem- the enforcement of the Wisconsin interpretation Compensation that ployment Act. The is eligible unemployment compensa- employee not for an is employment due to a bona fide tion if he has lost his involving employees of the em- other same labor disqualifying ployer. addition, as a In sec. 108.04 exemption statute, for not contain an workers who does loсkout, of a do the because as statutes lose Sweet, many A. Inc. In J. v. Industrial Comm.9 states. dispute” phrase “bona fide labor this court construed interpretation to include a lockout. The net effect of the required language (and (10) plain 108.04 its sec. Sweet) employees, like made in Cook and these employees masons, who are not other unemployment compen- locked out are denied sation. analogous our statute of sister state of Minnesota аpproach a different to this situation.
takes Sec. 268.09 (1) (5) provides, of Minnesota Statutes as does sec. (10) Statutes, employee Wisconsin that an disqualified totally partially if he left or has lost his because of a or other labor However, specifically exempts this subdivision em- an ployee “who becomes lockout.” addition, provides that, disquali- In subdivision if the 8 Supra, footnote 2. 9 (1962), 141, rehearing 16 Wis. 2d N. W. denied 16 110a, 2d at 114 N. Wis. W. 2d applies, any fication it lasts one week “for em- ployee participating directly who is in or interested dispute.” approach employees Such allows employees who have not chosen strike and who are not directly involved a labor to share in the bene- unemployment compensation. fits of statutory ap- This proach public remains policy consistent with the of allow- ing through benefits to those who are out of work no choice or fault of their own. present wording (10), Stats.,
Given of sec. 108.04 however, applicants correctly these denied unem ployment compensation. First, challenge there was no appeal made on to the bona fides of the lockout.10 Sec ond, question there employees but these lost *7 employment dependence because of their upon the employees locked-out rather than because of economic strategic or of a employer reasons because decision production.11 to shut down all Judgment
By the affirmed. Court. — (dissenting). Robert W. J. The five Mil- Hansen, bricklayers appealing waukee area here lost their em- ployment Racine were denied and com- pensation The benefits.1 basis of this denial was belonged they they to a Milwaukee area union local. If belonged had to a Racine area union local their un- employment compensation benefits granted. given reason for this distinction is strike, bricklayers laborers’ union had jobs Milwaukeе, out been locked on construction Wash- Sweet, supra, Comm., J. Inc. v. A. Industrial footnote 9. 1 1 Comm., supra, 2; City Cook v. Industrial footnote Kansas Dept. (1973), 591, 488, v. ILHR Star Co. 60 Wis. 2d W. 2d N. rehearing (1974), 62 denied Wis. 2d N. 217 W. Under ch. UNEMPLOYMENT RESERVES AND COM PENSATION, Stats. This bizarre counties. Ozaukee
ington, Waukesha providing: claimed, required the statute result, it par- (or left employe has who An “Labor employing lost) his tially totally or fide labor or other bona became of a strike unit shall any pre- (or eligible such from for benefits not be any such in which week vious) employer’s account pro- active fide labor other bona strike gress em- he is or was establishment in the supplied.) (Emphasis ployed.”2 eligibility for bene- for” test3 as Adopting the “but having “completed what majority that, fits, states area,” members Racine the five there was work naturally look bricklayers’ “would union the Milwaukee assignment. job for a new area” to the Milwaukee first area, Racine- in the Racine available (With no work same.) might expected do the bricklayers well bе based dis- majority concludes: “Because labor And, the work, up however, they not take pute, could thus, they point, at this became supplied.) The writer sub- dispute.” (Emphasis a labor time, wit, that, point in at an earlier mits Racine there was laid off at the sites because bricklayers do, here them to the five no more work for unemployed. become For had had ceased noted, test, authority for” as one has under “but dispute’ stoppage “The because of work ‘еxists *8 2 (10), Stats. Sec. 108.04 rule, Williams, The Labor For statement of this see: Jerre S. Dispute Disqualification Problems, 8 Primer and Some Van — A stating: (1955), 338, 344, “. . . it L. the author derbilt Rev. requisite jurisdictions generally accepted the in most now relationship stoppage of and labor dis between the work causal relationship. employee is pute the for’ This means that is a ‘but only disqualified he ‘but those cases which would be dispute.” of the labor for’ the existence only dispute.”4 if it would not have but for that existed stopрage” In this case what the author terms “work and what our labor em- statute terms “lost his ployment” place took in Racine five these brick- when layers projects finished on which had been working and were laid off for the sole reason that there county. was no more work them to for do in Racine approach majority The taken the distinc- blurs layoff tion between the reason for the initial in Racine subsequent inability assign- and job to secure a new ment Milwaukee area. The not. statute does applies The employee labor to section an employment” who employing has “lost his with an unit dispute.” “because other fide bona unemployment compensation requires statute also employee “report laid-off for actually work available” by due upon “by notice called so to his do current employing ineligible unit,” or he will become for bene- employee duty report fits.5 But such job to a new assignment job assignment when an earlier has ended change not reach employee does back to of an status solely who has laid off because there more was no assigned. work for him to do on the he employee goes off employer’s payroll, Where solely because there further for need his services on the job that completed, he has he eligibility does lose his for job assignment benefits because a new county in another is not available because of а lockout county. other such Shadur, Unemployment Milton I. and the Dis “Labor Benefits pute’’ Disqualification, Chi. L. U. Rev. stating: compensation any author also “Denial for depends finding stoppage week on the additional [of dispute during exists because of the work] that week.” (a) (1) (2) (a), Stats., dealing eligibility Sec. requirements registering reporting for as to actually work available. *9 the in could made if lockout Milwaukee be
Even the Racine, layoff in of or loss of cause the ap- made (10), Stats., could if be thus even sec. here encounter the plicable, of benefits the denial Not the limitation such section. “in establishment” layoff every or lockout comes within occasioned strike recovery operates to the section.6 The section bar place dispute or takes strike where particular particular in the “establishment” determining- employed.7 employee In whether was particular -particular in the “establishment” a strike is employee employed, particular lаid-off in which the factors are to our court held three be considered has general weighed: (2) (1) integrality; functional unity; proximity.8 (3) physical ground employees of Airlines
Thus where Northwest pilots’ strike, laid off of a nationwide our ground airport court held that ticket sellers and unemployment compensation crews were entitled to bene- lay- fits. There that the strike caused (1960), 2d 6See: Industrial Comm. 11 Wis. Schaeffer opinion stating: 364, 105 N. 2d this court “We are W. legislature something must have mind besides mere had interdependence employed production it term ‘estab lishment,’ enacting it Stats. This is because (10), sec. 108.04 plant in one difficult a situation where visualize strike closing plant of the same em result down of another will ployer except interdependence production. there is There where legislature cases of fore, had in all such if intended that involving closing down, or labor employee particular employer, unem should be barred from necessity plоyment compensation, have been no there would par strike, dispute, limiting or labor location ” employed.’ is or was ‘establishment which he ticular Department 754, 758, 2d Wis. Abendroth v. ILHR N. 343. 233 W. page Id. at *10 stations, off.9 The two one in and one in Madison Mil- waukee, employees claiming worked, where the were closed applied. down.10 The threefold test As integrality,11 to interdependency functional the of the operations present. and locations was found to be As physical proximity,12 factor of court a our found separateness ground the between work areas of the em- ployees pilots’ relying and operations, the base of an on holding earlier case truck terminals in this state not to be part single “establishment” the main terminal with Chicago.13 general As to the unity,14 factor of our 9 page 760, Id. at observing: court this the “While Milwaukee facility stay open days pilots’ reservations did 11 after the began, selling point purpose there is not much tiсkets or maintaining ground pilots services crew airline when the planes flying.” are on strike and its are not page (statement facts): 10Id. at of “At the time of the 757 operated Wisconsin, strike Northwest two stations in one at Madi and the son other at Both were intermediate stations Milwaukee. place —i.e., you discharge ‘a where land and off to and take take passengers.’ on Both these stations were closed as result of pilots’ the strike.” 1 1 page 759, holding, at Id. this court faсtor of functional as to degree integrality, “. . . of interde this element relates to the pendency synchronization operations and and locations between the involved.” physical page 760, holding, Id. at court as factor of weight mileage proximity, give “. . . we not the actual employment place area and the between strikebound work .claiming' benefits, for the but also to reason workers separateness of the two locations.” Trucking Depart citing Libеrty page 761, ILHR Id. Co. at saying of it: ment N. W. 2d 57 Wis. measuring Liberty ‘no holding that there is stick’ *11 county. done in Racine
not to or affect work extend So, unemployment the found to even with cause of their lockout, “separated or be the deal work areas we single employer.” stations of a As to the of the first test, integrality, three the factors writer functional being find, would not as to done in Racine linked work “degree being Milwaukee, work not that of inter- done dependency synchronization operations the between involved,”16 that locations would make them func- tionally integral. proxi- factor, physical toAs the second mity, while distance between involved is work areas great not here as the as 88 miles in the truck terminal case,17 the writer would find the work done in Racine physically proximate not at all to work in Milwaukee particularly insofar as lockout is concerned. As to ” deserving weight Liberty (Quoting former more than the latter.’ Trucking Department, supra, page v. ILHR Co. footnote at 337.) (referring Liberty Trucking page Id. at Case Co. page 341) at : prod- “There our court concluded that: ‘While the nature of the i.e., transportation, uct, may and the nature the business make part system, a terminals of the whole it still not does make ’ ” one terminals “establishment.” Id. at Id. at page 759. page general unity, find factor, the writer would third management, unity employment, unity some but no being completion en- in Racine construction tirely undertaking separate com- from the distinct рleting projects. work on Milwaukee construction airport ground get unemployment Finally, if crews can strike, pilots’ benefits are laid off bricklayers would laid writer that off in Racine hold where there was no lockout can receive despite bricklayers a lockout of in Milwaukee county. The writer to make out of sees reason fish one out of and fowl the other. appellant
The writer would conclude that five bricklayers job solely were laid off in Racine completed that had been and there was no more work for them in the Racine area. The hold work writer would bricklayers that Milwaukee, the lockout of a lockout county, applic- extend did not to Racine did make that, able sec. 108.04 Stats. writer would hold applic- even if such statute could be stretched to be here able, bricklayers working these five in Racine not in single employer “establishment” of this as to work Milwaukee area covered the loсkout. The writer reverse, holding appellant five these brick- layers unemployment compensation are entitled to bene- *12 fits, holding being that “but for” there no more work for them to do in Racine laid off from their in the Racine work area. I am authorized to Justice state Mr. Roland B.
Day joins in this dissent. notes “While clearly significances involved, it reinstates of distances as to given physical proximity considerable as one to be the factor weight.” general unity, page 762, this cоurt hold Id. to factor of at as ing: element, held, a consideration has ‘. . . involves our court “This unity management, unity of- of both again citing fol unity employment, court found no finding unity lowing of em the truck terminal case ployment truck terminals this state and between Chicago.15 main terminal bricklayers Even if it could that these five lost be said Milwaukee, of the in Racine because lockout airport employees pilots on as did the went being single strike, to there “es- threefold test as tablishment” to be met. These would still have brick- layers the Racine locked out from lockout strike in That did laborers’ Milwaukee.