DATED AND FILED
NOTICE
September 18, 1997
Marilyn L. Graves
Clerk, Court of Appeals
of Wisconsin
No. 97-0260
DISTRICT IV
Ronald Berry, John H. Boutin, Barbara J. Cram,
Roger B. Demaske, Garnet L. Felts, Kay K. Fox,
Geraldine A. Frei, John J. Gregar, James F.
McMahan, Sherill L. Murphy, Steven R. Olson,
Betty A. Preuss, Kenneth D. Randall,
Steven J. Sawa, Lila M. Sommerfeldt,
John R. Southworth, Darleen J. Ulrich,
Jerome S. Weiner, James A. Wheeler,
Plaintiffs-Appellants,
v.
Labor and Industry Review Commission,
Department of Military Affairs, the Adjutant
General,
Defendants-Respondents.
APPEAL from a judgment of the circuit court for Juneau County:
JOHN W. BRADY, Judge. Affirmed.
Before Eich, C.J., Dykman, P.J., Deininger, J.
DEININGER, J. Ronald Berry and eighteen other
claimants appeal a
judgment which affirmed the decision of the Labor and Industry Review Commission
(LIRC) to deny them unemployment compensation benefits. Claimants terminated
their employment in return for early retirement and voluntary separation incentives
offered by their employer. They claim, however, that they are entitled to benefits
under an exception for employees who quit or accept a layoff in lieu of the
"suspension or termination by the employer of another employe's work." Section
108.04(7)(am), Stats.(1) The LIRC interprets
the statute to require a showing by the
claimants that their voluntary terminations were related to the identifiable, threatened
termination of some other employee's work. We conclude that the LIRC's
interpretation of the statutory exception is entitled to great weight deference, and that
it is not unreasonable. Accordingly, we affirm.
BACKGROUND
Claimants do not dispute the LIRC's factual findings, which we
summarize here. Claimants worked for the State of Wisconsin Department of
Military Affairs. The department received word that the federal funding and
authorizations for sixty-one employees was to be eliminated. In response, the
department implemented a hiring and promotions freeze and obtained authorization
to offer "buy-outs" and early retirements to eligible employees.
All of the claimants accepted either voluntary early retirement or a
voluntary separation incentive pay buy-out, or a combination of both. One of the
claimants "specifically indicated that he requested voluntary early retirement and
voluntary separation incentive pay, and that if funds for voluntary separation
incentive pay were not available he would not accept voluntary early retirement." As
a result of various personnel and cost-saving actions taken by the department, no
involuntary layoffs or terminations became necessary. The claimants did not
establish that there were other employees "identified for termination or suspension"
whose places they took by voluntarily terminating their employment.
The LIRC concluded that the claimants' "quitting was to take advantage
of the employer's buy-out," and that they had failed to establish that, had they not
terminated their work, another employee "would lose his or her job." Thus, the LIRC
ruled that claimants were ineligible for unemployment compensation benefits because
they had terminated their employment "within the meaning of § 108.04(7)(a),
Stats.,
and that [their] quitting was not for any reason constituting an exception to that
section." The claimants sought circuit court review of the decision, and the court
entered a judgment affirming the LIRC decision.
ANALYSIS
We review the LIRC's decision, not that of the trial court.
Stafford
Trucking, Inc. v. DILHR, 102 Wis.2d 256, 260, 306 N.W.2d 79, 82
(Ct. App. 1981).
We do not weigh the evidence or pass upon the credibility of the witnesses; LIRC's
findings of fact will be upheld on appeal if they are supported by credible and
substantial evidence in the record. Section 102.23(6), Stats.; see
Applied Plastics,
Inc. v. LIRC, 121 Wis.2d 271, 276, 359 N.W.2d 168, 171 (Ct. App.
1984).
We are not bound by the LIRC's legal conclusions; DHSS v.
LIRC, 159
Wis.2d 300, 309, 464 N.W.2d 74, 77 (Ct. App. 1990), and we will review its
conclusions of law de novo when the case is one of first impression.
Kelley Co. v.
Marquardt, 172 Wis.2d 234, 245-46, 493 N.W.2d 68, 73-74 (1992). In
certain
situations, however, we defer to the LIRC's interpretation of a statute.
State ex rel.
Parker v. Sullivan, 184 Wis.2d 668, 699, 517 N.W.2d 449, 460-61
(1994). We will
accord the LIRC's interpretation great weight once we have determined:
(1) [that] the agency was charged by the legislature with the
duty of administering the statute; (2) that the interpretation of
the agency is one of long-standing; (3) that the agency
employed its expertise or specialized knowledge in forming
the interpretation; and (4) that the agency's interpretation will
provide uniformity and consistency in the application of the
statute.
Harnischfeger Corp. v. LIRC, 196 Wis.2d 650,
660, 539 N.W.2d 98, 102 (1995)
(citation omitted).
The legislature has charged the LIRC with the duty of administering the
unemployment compensation statutes by hearing appeals from benefit determinations
made by the Department of Workforce Development. See
§§ 103.04 and 108.09(6),
Stats. In its brief, the LIRC refers this court to six of its prior decisions, dating from
1978 through 1994, where it interpreted and applied § 108.04(7)(am), Stats.(2)
Several of the decisions deal with terminations involving early retirement or voluntary
separation incentives. In each, the LIRC interpreted the statute to require a showing
that a claimant's voluntary termination of employment was related to an identifiable,
threatened termination or suspension of some other employee's work.
We are thus satisfied that the LIRC's interpretation of § 108.04(7)(am),
Stats., is one of long-standing; that in making it, the LIRC has employed its
expertise and specialized knowledge of employer-employee relationships and
transactions; and that the interpretation provides uniformity and consistency in the
application of § 108.04(7)(am). The LIRC's interpretation is therefore entitled
to
great weight deference from this court. Accordingly, we will sustain the LIRC's
interpretation of § 108.04(7)(am) if it is "merely [] reasonable," and the burden
of
proof is on the claimants to show that the interpretation is unreasonable. See
Harnischfeger Corp., 196 Wis.2d at 661, 539 N.W.2d
at 102. An interpretation is
unreasonable only if it "directly contravenes the words of the statute, it is clearly
contrary to legislative intent or it is without rational basis."
Id. at 662, 539 N.W.2d
at 103 (citation omitted).
We conclude that interpreting § 108.04(7)(am), Stats., to require an
identifiable, threatened suspension or termination of another employee's
work is not
unreasonable. The interpretation does not contravene the words of the statute.
Section 108.04(7)(am), requires that a claimant's voluntary termination be "in lieu of
a suspension or termination by the employer of another employe's work." We fail to
see how a claimant could establish that his or her voluntary termination was "in lieu
of" another employee's involuntary termination unless the claimant can identify
another individual, or group of individuals, who were able to keep working as a direct
result of the claimant's voluntary action. The language of § 108.04(7)(am) does
not
prohibit the LIRC's interpretation and perhaps even compels it.
The claimants argue, however, that the LIRC's interpretation of
§ 108.04(7)(am), Stats., is contrary to the legislature's intent that chapter 108 be
"liberally construed to effect unemployment compensation coverage for workers."
See Princess House, Inc. v. DILHR, 111 Wis.2d 46,
62, 330 N.W.2d 169, 177
(1983); Section108.01, Stats. We disagree. The Laws of 1975, ch. 343, which
originated as May 1976 Special Session Assembly Bill 1, created the exception under
§ 108.04(7)(am). An analysis of the bill, prepared by the Legislative Reference
Bureau (LRB), describes the provision as follows:
Two new exceptions to the law's quit disqualification are
added, to allow benefits in voluntary layoff (inverse seniority)
situations and to remove the requalifying requirement .
.
The first
change [§ 108.04(7)(am)] allows an
individual who elects to accept a layoff, which avoids the
necessity of laying off another worker, to receive benefits if
otherwise eligible.
1976 Special Session Assembly Bill 1, LRB-10638/2. The LRB's analysis is not a
conclusive declaration of legislative intent, nor is its interpretation of the provision
binding on this court. Nonetheless, the references to "inverse seniority" and
acceptance of "a layoff, which avoids the necessity of laying off
another worker"
(emphasis supplied), persuade us that the claimants have not met their burden to
establish that the LIRC's interpretation is contrary to legislative intent.
Finally, the LIRC's interpretation has a rational basis. It ensures that
an employee who voluntarily steps forward to accept a layoff so that another may
avoid that fate, takes his colleague's place not only in the unemployment line, but also
as a rightful recipient of unemployment compensation benefits. The "one-for-one"
interpretation serves to separate that circumstance from those present here, where
employees responded to separation incentives offered by an employer as a general
cost-cutting or down-sizing measure. These claimants elected to accept the separation
incentives without knowing whether any department employees would ultimately be
involuntarily suspended or terminated.
The LIRC acknowledges that it would be unreasonable to require a
quitting employee to "point to exactly whose position it was that he [or she] saved by
quitting." But it claims that its interpretation does not place that burden on the
claimants. Rather, in its brief, the LIRC describes its application of
§ 108.04(7)(am),
Stats., as follows:
[T]he commission does not require that an employe be able to
identify the individual or individual position saved by his
quitting. What the commission does require is that there be
credible evidence that the employer had definitely elected to
terminate or suspend one or more people, and that the
employe claiming the statutory exception can demonstrate that
he accepted termination or suspension in lieu of termination or
suspension of some other employe.
(Emphasis in original.) We conclude that this represents a rational way in which to
interpret and apply the statute.
Since the claimants have not established that the LIRC's interpretation
of § 108.07(04)(am), Stats., is unreasonable, we affirm.
By the Court.--Judgment affirmed.
Recommended for publication in the official reports.
1 Section 108.04(7), Stats., provides, in relevant part, as
follows:
(7) VOLUNTA
RY TERMINATION OF EMPLOYMENT.
(a) If an employe terminates work with an employing unit, the
employe is ineligible to receive benefits .
(am) Paragraph
(a) does not apply if the department
determines that the suspension or termination of the claimant's work
was in lieu of a suspension or termination by the employer of
another employe's work.
2 Schwoch v. Wisconsin Bell,
Inc., U.C. Hearing No. 94201467EC (December 1, 1994);
Buehler v. GTE North, Inc., U.C. Hearing No.
93401346MN (July 28, 1993); Vadnais v. Wenzel's
Amusements, U.C. Hearing No. 93600329WB (April 23, 1993);
Wojciechowski v. DILHR, No. 474-004 (Milwaukee
County Cir. Ct., June 29, 1979); Phillips v. LIRC,
No. 88-CV-1999 (Dane County
Cir. Ct., September 30, 1988); and Graham v. LIRC,
No. 94-CV-0635 (Rock County Cir. Ct., April
14, 1995).
STATE OF WISCONSIN
IN COURT OF APPEALS