*1 age ticking away. case, instant A.E. will reach eighteen July 13, 1980. Department Plaintiff-Appellant,
Nottelson, In another, dustry, Relations, Labor & Human Defendants-Respondents.
Supreme Court
Argued
6, 1979.
February 7, 1980.
No.
November
77-285.
Decided
(Also
763.)
reported in 287 N.W.2d
petition
this court as a
County,
review.
McEwen v. Price
Cf.
266, 270,
(1979).
90 Wis.2d
For there awas brief Uclair W. Brandt, director, Barry Levenson, attorney, M. Legal Affairs; Sigrid Dynek, Bureau E. assistant general counsel, Milwaukee, Corporation, 0.A. Smith argument by Levenson, and oral Mr. of Madison, and Sullivan, David C. of Milwaukee. ABRAHAMSON, appeal
SHIRLEY S. J. This is from judgment affirming of the circuit court a decision of industry (commission) the labor and review commission *4 Department Labor, of the Industry, and Human Re- (department) denying unemployment lations compensa- tion Nottelson, to Darrel C. the claimant. We reverse judgment and remand the matter to the circuit court with directions to remand department to record proceedings further opinion. consistent with this 102.24(1) 108.09(7), Secs. and Stats.
I. findings following com appear in the of the facts undisputed The claimant be evidence. mission and Corporation on gan employment A.O. Smith his with discharged July 11, on 1975. October discharge, many years prior A.O. claimant’s Smith For bargaining agreements party a collective had been security requiring em union clauses which contained join pay union the union and to ployees of A.O. Smith employment.1 a condition of dues as a member In 1966 claimant became Seventh part its Day Church, Adventist which includes as teachings join or finan- the tenet its members organization. cially support On a union or similar labor January 1, 1975, stopped paying claimant union dues ground religious prevented him on that his beliefs being financially sup- from a the union or member of porting question There is no that the claimant union. good employee was a and valued and that he was sincere in his beliefs. July met
Between December 1974 and 1975 claimant representatives of the union and A.O. in an Smith attempt being employment required to retain his without suggested union He to his union, dues. Smith non-religious, Workers, “pay Local that he a Steel charity equal non-union the sum union dues.”2 [his] 1(B)(2) bargaining agreement 1 Article of the collective in discharged provided: effect at the time claimant was April “Each hired or rehired or after if company, retained in the shall no later than thirty days (SO) after date of hire or date execution of this Agreement, later, whichever is become remain a member good standing organization a said labor condition of con- employment.” Agreement Bargaining tinued Collective between Workers, 1(B) (2). 0. Co. and A. Smith Smith Steel Art. commonly “charity plan substitution,” This known as required has been construed to be “reasonable accommodation”
Ill rejected The of the union executive board twice non-pay- proposal expelled him from the union for April 1975, 15, ment dues. On the union A.O. sent employees expelled list Smith a of over who were non-payment from the union because of dues. only person claimant was the on his the list who based grounds. religious non-payment of dues company personnel The claimant also met with in 1975 attempt nothing in an to resolve his dilemma. There is the record to show that A.O. made effort Smith to talk with the union about the claimant or that A.O. any steps support Smith took to aid or the claimant’s employment. to continue efforts The claimant testified that he was told A.O. Smith dues; that he fired if did would be he the union inquiry” legal rights; had he “made about his security he believed that the union clause bargaining agreement collective applied could not be him of his because convictions and that he lawfully discharged. May, 1975, could not In be an A.O. manager personnel Smith advised the claimant that he discharged. was to be March, grievance
In 1975, the claimant filed a Equal the United Employment Opportunity States Com- (EEOC). April, In mission claimant obtained temporary restraining order from the federal district court in the eastern preventing district of Wisconsin his discharge by July 3, 1975, Smith. A.O. On the EEOC found cause” “reasonable to believe that both Smith A.O. against the union had discriminated the claimant on religion basis violation of Title VII 2000e(j). See, e.g., unions under 42 U.S.C. Wondzell Alaska v. Products, Inc., Wood 583 P.2d 20 F.E.P. rev’d 20 F.E.P. Tooley (Alaska 1979); Co., Supp. Martin-Marietta 476 F. (D. 1979). 20 F.E.P. 1487 Ore. *6 March, 1972. Rights 1964,3 amended Act of Civil as claim- July 10, court denied 1975, the federal district On injunction preventing preliminary his request a ant’s for discharge fed- had his claimant not exhausted because Immediately after this eral administrative remedies.4 July 11, A.O. decision, court on federal district pay discharged failure claimant for the his Smith union dues. did not want record clear that the claimant
The being dis- quit employment and that he his resisted charged. discharge employment by A.O. Smith
After his from sought unemployment Corporation, com- the claimant Initially pensation. department claimant’s the allowed compensation, unemployment and he received claim requested $1,582.00. of initial A.O. review Smith finding by appeal department. an of the Sec. tribunal 3 Upon finding attempts reasonable cause the EEOC informal illegal practice. the conciliation eliminate July con- Claimant was on that the EEOC’s advised right had that he a to sue ciliation efforts failed and had employer If court and union in federal finds court. may appropri- violation, enjoin practice, it order unlawful and action,” of the ate such as reinstatement “affirmative any equitable pay “appropriate” other re- or without hack with Necessity Annot., 2000e-5(g). 42 sec. See lief. U.S.C. Suffi- By Oppor- Proceedings Equal Employment ciency Conciliation of tunity Bringing Action, Prerequisite 6 ALR Commission Civil Pay (1970); Annot., Back In Under Title 334 Award Suit Fed. of Bights (1974). Act 21 ALR Fed. 472 Civil VII of 4 Co., Supp. (E.D. v. O. F. Wis. Nottelson A. Smith 1976). damages injunctive plaintiff’s on suit for relief based rights federal under Title VII and the constitu- claim of denial of argument pending of the case at bar. tion at time oral were (E.D. 1976). Co., Supp. O. 423 F. Wis. Nottelson A. Smith 7, 1979, the federal district court for eastern December On plaintiff judgment for the on rendered district Wisconsin Title under VII. claim deciding 108.09, In that the claimant not en- Stats. unemployment required titled to benefits and was repay previously received, appeal the sums he had tribunal concluded that union claimant’s failure to religious grounds voluntary dues constituted a ter- meaning mination of “his within the 108.04(7) section of the and that termina- statutes, such good tion was cause to the attributable meaning 108.04(7) (b) within of section of the stat- utes, exception or within other to section 108.04 (7) (a) sought statutes.” The claimant then re- appeal decision, view tribunal the commission appeal affirmed the denial of tribunal’s benefits. Sec. *7 108.09(6), sought judicial Stats. The claimant then re- 108.09(7), view. Sec. Stats. The circuit court affirmed judgment the commission’s decision and entered denying unemployment compensation to the benefits ordering repay claimant and the claimant to the sum of $1,582 unemployment to the reserve fund.
II. judicial scope turn of the We first to the review of 108.09(7), pro Stats., commission’s determination. Sec. judicial chapter vides that under 108 is confined review questions law, provisions chapter of and that the of 102, Stats., respect judicial of review orders apply any awards decision of commission reviewed 108.09(7).5 provides 102.23(1), Stats., under sec. Sec. 108.09(7), Sec. Stats.: review, judi- “(7) may (a) party Judicial Either commence cial action for review of a decision of the commission under chapter exhausting provided this this after under remedies party judicial if the has commenced such action in accord- section days ance with 102.23 within 30 after decision commis- s. party’s last-known sion mailed address. findings by
that of fact made the commission “[t]he fraud, acting powers shall, in the absence of within its conclusive,” (d), Stats., that 102.23(1) be and sec. states judgment an order or or a ren- award commission only upon dered thereon be set aside the follow- “shall ing grounds: “1. That the commission acted without or in excess powers. its procured by “2, That order or fraud. award was findings by “3. do That of fact the commission support
not or the order award.” Stats., (6), Sec. 102.23 further states: “(6) If depends order or commission’s award on any substitute its by commission, fact found the court shall judgment as that the commission weight credibility to the any or of the evidence on find- ing however, may, court fact. The set com- aside the mission’s order award and remand the case to depends commission if the commission’s order or award finding on material and controverted of fact by supported is not credible and substantial evidence.” It findings is axiomatic that the fact commission’s appeal long are they conclusive “supported so are by evidence,” credible and 102.23(6), substantial sec. Stats., any legal conclusion drawn the com- “(b) Any judicial chapter review under shall be confined *8 questions provisions to law, respect of and the of ch. 102 judicial any of apply review orders and awards shall likewise decision of the commission reviewed under In section. judicial may appear by any such qualified action the commission attorney regular employe department who ais of salaried and designated by has purpose, been it for this or at the commission’s request by department justice. of “(e) If, judicial of as a result of a review commission decision denying employe’s eligibility an benefits, finally it is deter- payable, they mined that are benefits be shall calculated as of the date of the commission’s decision.”
115 judicial findings subject mission from its fact of is review. have is not We often the court stated agency’s question bound determination of a of law. agree parties The appeal the issue on is whether unemployment compensa- the claimant should denied be ground voluntarily tion ter- benefits that he good minated without cause attributable employing presents questions: unit. This three issue (1) employee the conduct and the em- What was of the ployer; (2) meaning legal concepts what is the of the “voluntary “good termination” and cause attributable to employing 108.04(7) (a), (b), unit” as used sec. Stats.; (3) employee did the conduct of the consti- “voluntary tute termination” and did the of conduct “good constitute cause attributable to the employing statutory unit” as those terms have been interpreted. purposes judicial scope review,
For of the first concerning question, the conduct of the employer, traditionally question has been of viewed as fact,6 meaning question relating and the second to the question of the statute has been viewed as of law. One of the most troublesome issues administrative law determining namely, question, whether the third application statutory concept of a a concrete fact situation, question should be treated as a of fact or of judicial purposes many law for of review.7 In cases we 6 Comm., Cheese v. Industrial 21 123 Wis.2d N.W.2d (1963). 557 7 Davis, See Administrative Law Treatise ch. 30 (1958 supplements); Davis, (3d Administrative Law Text ed. ch. Law, 665-667, State Administrative 1972); Cooper, 706-722 Action, Jaffe, Judicial Control Administrative (1965); 556- (1965); Linde, State Court Review Administrative Brodie & Scope Prescribing Review, Action: 537; 1977 Ariz. St. L.J. Scope Agency Hewitt, Judicial Review Administrative
116
have said that
of
the facts
the determination
whether
legal
question
particular
fulfill a
law.8
standard
a
of
is
“voluntary
The
that
there is a
termination”
conclusions
“good
employing
cause
unit”
attributable to
fact,
underlying findings
exists are
from
drawn
of
legal
and we label them
conclusions.9
labeling
ques-
Nevertheless, merely
question
as a
labeling
tion of
law
the commission’s determination
Wisconsin,
Haferman,
564;
Judi-
Decisions
1973 Wis. L. Rev.
Compensation Cases,
cial Review Workmen’s
1973
L. Rev.
Wis.
of
576;
Employment Division,
541,
McPherson v.
591 P.2d
285 Ore.
(1979).
1381
n
wisely
particular
One commentator
observed:
“[W]liether
question
question
question of fact
is to be treated as a
of law or a
question
fact,
highly
question
is not in
itself
of
but a
artificial
1,
Isaacs,
Facts,
of
Law and the
law.”
The
22 Colum.
Rev.
L.
(1922).
11-12
8 Dept.
Refining
44,
Corp.,
Revenue v. Milwaukee
80 Wis.2d
of
48,
Casey,
Co.,
(1977);
257
855
Consolidated Const.
Inc.
N.W.2d
v.
816,
811,
(1976);
71
v.
Wis.2d
238
Abendroth
ILHR
N.W.2d 758
Dept.,
Packing
754, 765,
(1975);
69 Wis.2d
233
343
Kress
N.W.2d
Kottwitz,
(1973);
175, 179,
v.Co.
61
212
Milw
Wis.2d
N.W.2d 97
Dept.,
392, 399,
aukee Co. v. ILHR
513
48
180 N.W.2d
Wis.2d
Comm.,
64,
(1970);
62,
Gelencser v. Industrial
31
141
Wis.2d
(1966);
Comm.,
15,
8,
N.W.2d 898
Cheese
Industrial
21 Wis.2d
v.
Dept.
313,
Taxation,
(1963);
As we shall discuss
for the
later, this case raises
first
application
compen-
unemployment
time the
of the state
interplay
sation act
a fact
situation which involves the
rights
obligations
employee’s
employer’s
of an
and
agreement
security
under a union
and the federal civil
rights
appears
act.
It
not de-
that
the commission has
body
veloped expertise
precedent
question.
or a
of
on this
implications
Indeed the
failed
commission
to consider the
rights
making
of the federal civil
act in
its determination.
reasons,
For these
we shall
the
not defer to
commission’s
employee
of
evaluation
whether the conduct of the
con-
“voluntary
stituted
termination” and whether the conduct
“good
constituted
cause attributable
by
employing
Accepting
unit.”
as found
facts
commission,
opinion
they
are
we
do
10 Dept.
Products,
Revenue v. Smith Harvestore
Wis.2d
72
(1976).
agency’s
In
support the conclusion of law reached the commission “voluntarily employment. the claimant terminated”
III. applicable governing payment unemploy- law compensation 108.04(7), ment Stats., is sec. states which general employee voluntarily rule that an who ter- employing minates his an unit is ineli- gible exception for benefits. One rule is that get may voluntarily if benefits he terminates *11 good employment with cause attributable to the em- ploying unit. “108.04. .. “ (7) Voluntary employment, (a) termination of If an employe employment terminates his or her an em- with ploying unit, employe ineligible shall be bene-
fits for the week of he termination and until thereafter again employed or she has been within at 4 least weeks wages $200, except and has earned of at least as other- provided wise in this subsection. “(b) Paragraph (a) apply department shall not if the employe employment determines that the terminated his good cause employing attributable to the unit.” meaning statutory The “voluntary terms ter- “good mination” and cause employing attributable to the developed unit” by has been case law. although
We have said that “voluntary” ap- the word pears only caption in the 108.04(7) (a), to sec. sec. 108.- 04(7) (a) must be read if as “voluntary” the word is part body of the section.11 Thus we have read 1 1 “Actually, ‘voluntary’ the word appear does not even in the body 108.04(7) (a), Stats., only sec. but in the title to that sub 990.001(6), section. Stats., Under sec. subchapters, titles to ‘[t]he sections, paragraphs subsections part of the statutes are not
119
voluntarily
say
employee
the statute to
that an
who
ter-
employment
ineligible
minates his
for benefits unless
exception.
he or
statutory
she falls within a
We have
explained
statutory concept
further
of “volun-
tary
employee
says,
termination” is not limited to the
who
quit.”
“I
“Voluntary termination”
under
the statute
encompass
can
a situation in
dis-
which
charges
employee.
plaintiff
In the instant case the
say
discharged
quit;
by
did not
employer.
he
he was
applicable
discharge
test to determine whether a
by
“voluntary
constitutes
termination” was
forth
set
181,
this court Dentici v. Industrial
Comm., Wis.
264
186,
(1958),
and reaffirmed in Fish v.
word or
conduct,
manner of
or
employee-employer
inconsistent
with the
continuation of the
relation-
ship,
held,
it
must be
. . . that
intended
and did
ed].”
voluntarily
leave his
. .
cit-
.’ [case
*12
This court
interpret
has also had occasion to
the
phrase
employment
good
“terminated his
cause
Thus,
initially arguable
the statutes.’
it is
that
the statute does
require
employment
‘voluntarily’
even
terminated,
that
be
only
by
but
employee.
however,
it be
Since,
terminated
the use of the word in the title to the statute must be viewed as
manifesting
legislative
at least
meaning,
intent as to its
and since
prior
also
occasions,
we have so
Dentici v. Indus-
construed it
trial Comm.
181,
(1953)]
Fish
Wis.
58
v.
[264
N.W.2d
717
Equipment
Service,
&
White
Sales
Inc.
737,
Wis.2d
[64
221 N.W.2d
(1974)],
Dept.,
864
we continue to do so
here.” Hanmer
ILHR
v.
(1979).
92 Wis.2d
94 n.
120 (b), employing 108.04(7) attributable to unit.” Sec. employing unit” “Good cause attributable to the Stats. by justifying employer act means some or omission employee’s quitting; it “some fault” on involves part and must “real and be substantial.” Comm., 398, 401, Kessler v. Industrial 27 134 Wis.2d (1965). also, Dept., 412 Hanmer ILHR N.W.2d See v. 90, 98, (1979). 92 284 Wis.2d 587 N.W.2d
IV. question for this court the case at bar is wheth- legal plaintiff’s er the facts fulfill the standard: did the failing pay conduct union dues amount to a volun- tary and, so, termination if did conduct A. O. Smith’s “good employing constitute cause attributable to the unit.”
The commission that the concluded facts establish that voluntary voluntary the termination was and that good termination was not with cause attributable to the employing unit. A. Smith maintains that the commis O. correctly applied sion the Dentici test to the facts of correctly failing case and decided claimant, pay knowing dues while membership that union continuing a engaged condition of employment, in con duct which was inconsistent with the continuation of employee-employer relationship and therefore con voluntary stituted a termination. A. 0. Smith cites num erous cases which employee’s join hold that an failure to dues, union union excuse, absent an amounts voluntary termination of em where ployment is conditioned on membership.12 union 12 Unemployment O’Donnell Comp.. Review, 173 Bd. Pa. Super. 263, (1953); Malaspina’s Claim, In re A.2d 406 309 N.Y. Unemployment (1956); Comp. Butler v. N.E.2d 709 Bd. Rev., Super. Pa. Building, Grant (1959); A.2d 843 *13 bar, however, In the case at claimant had an excuse for failing namely pay pay to his that his failure to dues— religious dues arose from his convictions and that rights discharge. protected federal civil act him from We hold that meritoriousness his excuse —that religious protected by whether his as federal beliefs rights obligation pay civil act him relieved of his to dues determining to—has considered in in- be whether he employment tended to leave his conduct whether continuing employment was inconsistent with rela- tion.
The commission treated the case at
as if there could
bar
justifiable
non-payment
be no
excuse for
of dues if
required
pay
was aware that he was
dues
penalty
non-payment
discharge.
and that
recognized
policy
public
supports
The commission
requiring
belong
workers
union for
collective
bargaining
gave
purposes but
no consideration whatever
rights
pro-
to the effect of the federal civil
act on this
agreement.
bargaining
vision of the collective
The com-
bargaining agree-
mission treated the matter
if the
required,
ment
exception,
pay
without
the claimant
gave
dues;
right
that it
the union an
require
absolute
payment
discharge
of dues and
non-pay-
to demand
aof
ing employee;
give
and that
did
it
A.
Smith
0.
discharge
alternative but
the claimant.
conclude
We
rights
obligations
that the commission’s view of the
claimant,
union,
and A. 0. Smith is erroneous.
The commission failed to consider the effect of claim-
rights
ant’s
convictions and of the federal civil
requirement
act on the
that he
union dues.
Unemployment Corp.
Rev.,
Inc.
v.
Super.
Bd.
208 Pa.
(1966); Amuchastegui
Dept.
A.2d
Employment,
4 Or.
App. 466,
Dept.
(1971) ;
State ex rel.
The record establishes that the claimant’s support discharge to position at the time of could, job be at time, one and the maintain his same protected union because dues he was from dis- charge by Rights 1964, Title ofVII Act of as Civil amended, was meritorious. Rights
The claimant on of the relied Title VII Civil Act amended, of as which makes it an unlawful em- ployment practice discharge employer an for an indi- against vidual or to otherwise discriminate an individual respect employment to the terms of of the because religion individual’s it unlawful union makes for employer against cause an to discriminate an individual in religion violation of the law.13 The act as defines follows: ‘religion’ term aspects “The all includes practice, observance and as as belief, well unless an em- ployer reasonably demonstrates he unable ac- re- employee’s prospective employee’s commodate to an or
ligious
practice
hardship
observance or
undue
without
employer’s
the conduct of the
(j)
business.” Sec.
Rights
Sec. 703 of Title VII of the Civil
Act of
provides:
in
amended
42 U.S.C. sec. 2000e-2
employment practices
“Unlawful
“(a) Employer practices.
It shall be an unlawful
practice
employer—
for an
“(1)
discharge any
. .to
.
individual, or otherwise to discrimi-
against
any
respect
compensation,
nate
individual with
to his
terms, conditions,
privileges
employment,
or
because of such in-
religion
. . .
dividual’s
. .”
.
“(c)
organization practices.
Labor
It
be an unlawful em-
shall
ployment practice
organization—
for a labor
“(1)
expel
membership,
to exclude or to
from its
or otherwise
against,
religion,
discriminate
individual because of his
..
.
“(3)
attempt
employer
to cause
cause an
to discriminate
against an individual
in violation of
section.”
Rights
Act,
of Title VII of
Civil
as amended
2000e(j).
42 U.S.C. sec.
religion
intent
effect of the definition
employment practice
the act is clear: it is an unlawful
for
an
not to make reasonable accommodation
incurring
religious practices
employees,
short
legislative
language
hardship. The
undue
and the
his
Congress’
tory
emphasis
on eliminat
statute show
*15
religion
ing
in
discrimination
on
based
Griggs
impermissible
Duke
other
Powd
classifications.
v.
Co.,
424,
(1971);
er
Air
401
429-431
Trans World
U.S.
63,
lines,
Hardison,
(1977). However,
Inc. v.
432 U.S.
71
rights
guidance
provide
the federal
does not
civil
act
degree
determining
required
the
of accommodation
in
Hardison,
any particular
Airlines,
case. Trans World
Inc. v.
74,
2
at
75.
U.S.
43
discharge
Prior to claimant’s
at least one federal court
appeals
security agreements
of
had held
are
that union
subject
Rights
to Title
the
VII
the Civil
Act and that
question
employer
in such a
is
case
whether
the
union could make a
the
“reasonable accommodation” to
religious
particular
employee’s
undue
beliefs “without
hardship.” Yott
Corp.,
v. North
Rockwell
501
American
(9th
1974).
Cooper
F.2d
403
See also
Cir.
v. General
Aerospace
Dynamics
Div.,
Convair
On the basis of the 0. took A. Smith discharge position it had no choice but claimant. case, is not a
This be- Smith would have us A. 0. lieve, presents which a conflict between standing innocently the union with discharge middle. At the time of claimant’s the federal interpreted impose had been law burden on em- ployer to employee’s make an effort to accommodate the and, unsuccessful, if beliefs to demonstrate it is not able to hard- accommodate without undue ship. discharge
Prior to claimant’s the EEOC a de issued allegation termination on claimant’s that A. O. Smith discriminating against him on the basis of his reli gion by attempting security to enforce the union clause. although security The EEOC concluded that union clauses bargaining agreements collective are not a violation VII, of Title the enforcement of sanctions associated against employees object religi such clauses who grounds ous membership payment to union or to dues, VII, constitutes a violation Title absent show ing hardship necessity. of undue or business The EEOC *16 concluded that there was reasonable cause to believe that impending discharge A. O. Smith’s of claimant constitut employment ed an practice. unlawful The EEOC invited join the union and O. to A. Smith the EEOC with in a just collective effort toward a resolution of the matter. Considering language legislative history and Rights judicial the federal Act, interpretations Civil Act, of the favor, EEOC determination in claimant’s and Smith, the conduct of the and union A. O. the claim justification ant had meritorious for his assertion that pay he need not union and dues that he could retain his employee. an Accordingly status we conclude that claimant’s intent was to continue his and his religious pay grounded on (his conduct dues failure the em- belief) continuation of consistent with the was ployee-employer relation. discharge im- was say that claimant’s
This not is discharge a violation proper that constituted his are Rights instant case we Act. In the the federal Civil unemploy- only eligibility for with concerned claimant’s discharge validity compensation, of his ment not Rights rights Act. For federal Civil or his under the discharge determining claimant’s purposes of whether termination,” “voluntary a we can be characterized as justifi- that, had meritorious conclude because claimant pay not dues, his conduct was cation for his failure to employee-em- inconsistent with his continuation ployer cannot be relation.14 failure dues His quit”; not a his termination was viewed as “constructive voluntary unemployment compensation act. under the
By Judgment remanded reversed and cause Court. — Department record to the with directions remand the Industry, Labor and Human Relations for further opinion. proceedings consistent with this agree (dissenting). COFFEY, I can ma- J. with the forcing jority make that claimant to a choice between ought religion job to be countenanced. He his his not responsible employee past a trusted for the years. many years He was a for union member before changed questions he affiliation. No one sincerity objections membership of his to union based say justification When we there was meritorious can a conduct so that his conduct not be considered claimant’s voluntary proved a termination we do mean the claimant legal guaranteed right prevail or defense at A which trial. justification justification is a has a reasonable meritorious which question law, justification of fact fact or which raises basis deserving investigation or law determination. *17 religious right
his The has a convictions. claimant religion infringed the free exercise of been his which has upon, remedy under the facts of But the avail- this case. compensa- unemployment able to him not a claim against tion employer. his majority did holds that the claimant not volun-
tarily quit employment good his because he had a excuse religious objection paying —his dues. union Others might objection the have same for other reasons. Would majority deny compensation religion the to a of a member prohibit payment which did not the of union as a dues notwithstanding tenent of faith, the that his conviction just was as firm and as sincere as I the claimant’s? see principle. fact, compensation no difference In to allow deny in the first case and it in would other amount prohibited by to an religion, establishment of a the same provisions our state federal constitutions which grant right free exercise our beliefs. terminating employment
The claimant’s reason for personal Therefore, voluntarily quit to him. he when he chose to follow mandate of his conscience rather than security honor the union clause collective bargaining contract, as union insisted he should.
Perhaps majority means to hold claimant employment good terminated his cause attributable employing union, to his unit. But it was the not the com- enforcing pany, security which insisted on the union clause. else company What could the do? The suggested agree. alternatives and union would not majority company repudiate Does the want the a val- agreement id bargaining refusing collective to honor one of company its terms? expose Must the itself to an practice charge? required unfair repre- labor Is it sent the dispute claimant union, with the which is organized to assert his interests as to and conditions against company? Such course *18 peace there hardly which to labor be conducive would compelling interest. is a state Hardison, 432 U.S. Inc. v. Airlines,
In Trans World Supreme that en- held Court (1977), the United States seniority violate provision did not of a forcement though Rights the effect it had Act, even Federal Civil his job and forcing a his worker to choose between working on prohibited from him beliefs which policy Saturdays. labor The court noted that national bargaining agreements. Our state favored collective bargain- just policy strongly in favor of collective is ing. objects bargaining re- The claimant to collective ligious grounds. right, he is not entitled That is his but unemployment compensation he em- when leaves his to ployment part of a collective he refuses to be a because bargaining unit. recognize majority expertise of the
The refuses did not consider commission commission because Rights Understandably so, Act. because Federal Civil application payment of unem- federal act no to the has compensation ployment under law. benefits Wisconsin a federal remedy for a of the federal act is The violation brought court, claimant done. in federal as the has action According majority, claimant has recovered to the majority judgment apparently federal action. The grant allowing recovery by him a double unem- wants ployment compensation federal benefits in addition to the nothing judgment. I in the federal court can discover congressional act cited to which show cases us require part intent the states to enforce this law as unemployment compensation proceedings. of their purpose unemployment compensation not to penalty good-faith an exact a from whose deal- ings hardship a union result in an who compensated can under federal be law. The commis- applied correctly policy sion of our state law which only policy applied. be A claimant was relevant re- has of his who terminated his because ligious unem- convictions should not have a claim for ployment compensation he can that his em- unless show legitimate ployer, for no forced him to be- reason, choose job. tween his conscience and his In this case the em- ployer not at fault. I I am would affirm. authorized to state that Chief Justice and Mr. Justice Beilfuss *19 join in Connor T. Hansen this dissent.
Sears, Plaintiff in error, Defendant in error. State,
Supreme Court Argued 1979. No. December 77-308-CR. February 7, 1980. Decided (Also reported 785.) in 287 N.W.2d