Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees & Helpers Local No. 695 v. Labor & Industry Review Commission , 154 Wis. 2d 75 ( 1990 )

SHIRLEY S. ABRAHAMSON, J.

(dissenting). The Labor and Industry Review Commission (LIRC) determined that the refunds of union dues to union stewards constitute wages under sec. 108.02(26), Stats. 1987-88.¹ The majority opinion limits deference to LIRC's application of the statute to instances of longstanding administrative practice, majority op. pp. 82-83, and decides the question ab initio. The majority opinion reverses LIRC, concluding that the refunds are not wages.

I conclude that the majority opinion applies the wrong standard of review. I would give weight to LIRC's application of the statute to the facts in this case and would affirm LIRC's conclusion because the agency's determination is reasonable. Accordingly, I dissent.

This case raises the most troublesome issue in judicial review of administrative agency determinations, namely whether the application of law to the facts is a question of fact or law for purposes of judicial review. Nottelson v. ILHR Dept., 94 Wis. 2d 106, 115, 287 N.W.2d 763 (1980).

We have characterized an administrative agency's application of the law to the facts of a case as a conclusion of law and have concluded the agency's determination is entitled to weight (1) if the agency's experience, technical competence, and specialized knowledge aid the agency in its application of the statute, (2) if the agency's conclusion is intertwined with factual determinations or with value or policy determinations, or (3) if the agency's application of the law is of long standing. West Bend Education Assn v. WERC, 121 Wis. 2d 1, 12, 357 N.W.2d 534 (1984).

In this case, I conclude that LIRC has expertise in applying the statutory definition of wages and that the application of the statutory definition of wages to the facts of this case is intertwined with the facts of the case and values and policy determinations.

LIRC determines what constitutes "wages" under ch. 108 in a variety of cases. See e.g., State Dept. of Transp. v. Labor and Industry Review Comm'n, 122 Wis. 2d 358, 360, 361 N.W.2d 722 (Ct. App. 1984); Moorman Mfg. Co. v. Industrial Commission, 241 Wis. 200, 5 N.W. 743 (1942); Wis. Dept. of Industry, Labor, and Human Relations, Unemployment Compensation Digest.

In determining whether the refunds are wages, neither LIRC nor a court is called upon to interpret the statute through interpretative rules or reliance on extrinsic evidence such as legislative history.² The determination of whether the union steward received wages requires examining the facts for the nexus of the funds to personal services, see majority op. pp. 84-85. This determination is fact specific and can be made only by applying the law to the concrete facts of the case. See Theune v. Sheboygan, 57 Wis. 2d 417, 421, 204 N.W.2d 470 (1975).

According to the record in this case, a small number of union members receive dues refunds each year. In return for the refunds and the title of steward, this small group must attend training sessions on mediation of disputes between union members and employers. The stewards are expected to perform services for the unions or the members when needed. When the stewards perform union services on company time and lose company wages, the union compensates them for lost time. Stewards are reimbursed for performing union services on their own time by the refund of union dues. About 25 percent of the stewards actually performed services for the union or its members. About 75 percent of the stewards did not render personal services to the union or its members. Majority op. p. 84. No one disputes these facts.

On the basis of this record, I believe that it was reasonable for LIRC to conclude that dues refunds were wages under the statute. The refunds appear to be similar to a retainer for services: the refunds were paid to keep the stewards available to render union services and to reimburse the stewards for union services rendered.

For these reasons, I dissent.

1 Section 108.02(26), Stats. 1987-88, provides: " 'Wages' means every form of remuneration payable for a given period. . . to an individual for personal services, including salaries, commissions, vacation pay, dismissal wages, bonuses, tips . . . payments in kinds and any other similar advantage received from the individual's employing unit or directly with respect to work for it

2 The majority opinion states that it looks to the literal meaning of the statute. Majority op. p. 84. It treats statutory interpretation and application of the statute to the facts interchangeably. See majority op. pp. 81-84.