PUBLISHED OPINION
Case No.: 94-1628
† Petition
for Review filed.
Complete Title
of Case:
MILLER BREWING COMPANY,
Plaintiff-Respondent, †
v.
DEPARTMENT OF INDUSTRY, LABOR AND
HUMAN RELATIONS, EQUAL RIGHTS DIVISION,
Defendant-Appellant,
BECKY KOZERA,
Defendant-Co-Appellant.
Submitted on Briefs: July 11, 1995
Oral Argument: ---
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: July 9, 1996
Opinion Filed: July 9, 1996
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: MICHAEL D. GUOLEE
so indicate)
JUDGES: Wedemeyer,
P.J., Sullivan and Schudson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the defendant-appellant Department of Industry, Labor and Human Relations,
Equal Rights Division, the cause was submitted on the briefs of James E.
Doyle, attorney general, and Richard Briles Moriarty, assistant
attorney general.
For
the defendant-co-appellant Becky Kozera the cause was submitted on the briefs
of Michael J. Edmonds of Milwaukee.
Respondent
ATTORNEYSFor
the plaintiff-respondent Miller Brewing Company the cause was submitted on the
briefs of Ely A. Leichtling and Carmella A. Huser of Quarles
& Brady, of Milwaukee.
Amicus
ATTORNEYSAmicus
Curiae brief was filed by Marianne Goldstein Robbins of Previant,
Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., of Milwaukee, for
Wisconsin State AFL-CIO.
Amicus
Curiae brief was filed by Patricia J. Meunier of Schneidman, Myers,
Dowling & Blumenfield, of Milwaukee, for Wisconsin Federation of Nurses
and Health Care Professionals.
Amicus
Curiae brief was filed by Robert K. Sholl and Susan B. Stein of Reinhart,
Boerner, Van Deuren, Norris & Rieselbach, S.C., of Milwaukee, for
Wisconsin State Council of the Society for Human Resource Management.
COURT OF APPEALS DECISION DATED AND RELEASED July 9, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1628
STATE
OF WISCONSIN IN COURT OF
APPEALS
MILLER BREWING
COMPANY,
Plaintiff-Respondent,
v.
DEPARTMENT OF
INDUSTRY, LABOR AND
HUMAN RELATIONS, EQUAL
RIGHTS DIVISION,
Defendant-Appellant,
BECKY KOZERA,
Defendant-Co-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County: MICHAEL D. GUOLEE, Judge. Reversed and cause remanded with directions.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
SULLIVAN,
J. At issue in this case is whether a claim under the Wisconsin
Family and Medical Leave Act (FMLA), see § 103.10, Stats.,[1]
challenging an employer's refusal to allow an employee to substitute her paid
sick leave for the six-weeks of unpaid family leave provided for by
§ 103.10(5)(b) of the FMLA, is preempted by § 301 of the federal
Labor Management Relations Act (LMRA), see 29 U.S.C 185(a)(1990).[2] We conclude that the state law claim is not
preempted by § 301 of the LMRA.
Accordingly, we reverse the circuit court judgment holding otherwise and
remand the matter to the circuit court for resolution consistent with this
opinion.
I. Background.
A. Stipulated
historical facts.[3]
Becky Kozera is a
laboratory technician employed by the Miller Brewing Company, a Milwaukee-based
corporation. On March 4, 1990, she gave
birth to a daughter. Prior to the
child's delivery, on February 9, 1990, Miller Brewing approved a disability
leave for Kozera, expecting her to return to work on April 16, 1990, six weeks
after the anticipated delivery date of her child. Kozera used paid reserve sick leave for her disability leave as
allowed under her union contract.
On March 12, 1990,
Kozera verbally requested an additional six-weeks of parental family leave
pursuant to § 103.10(3), Stats. She also requested the use of six-weeks of
paid reserve sick leave for use during her family leave. As of April 16, 1990, Kozera had 952 hours
of paid reserve sick leave under the terms of her union contract.
Under the union's
collective bargaining agreement, employees are only able to use paid reserve
sick leave when they are in fact sick and they have submitted a doctor's note
acceptable to the company. Kozera was
not disabled or in any way unable to work because of a health condition from
April 16, 1990, to May 29, 1990.
Further, she did not submit a doctor's note regarding proof of
disability after April 16, 1990.
Miller Brewing granted
Kozera six-weeks of family leave from April 16, 1990, through May 29, 1990;
however, it did not allow her to use paid reserve sick leave during her family
leave. Miller Brewing had never allowed
an employee to use paid reserve sick leave for any reason except personal
illness or injury.
B. Procedural
history.
Kozera filed a complaint
with the Equal Rights Division of the Wisconsin Department of Industry, Labor,
and Human Relations, alleging that Miller Brewing had violated the FMLA when it
did not allow her to use her paid reserve sick leave during the six-weeks of
family leave. The Equal Rights Division
issued an initial determination finding probable cause to believe Miller Brewing
had violated the FMLA by its denial.
After a hearing on June
8, 1990, an administrative law judge found that Miller Brewing had violated
§ 103.10(5)(b), Stats., by
refusing to allow Kozera to substitute paid reserve sick leave for unpaid
family leave between April 16 and May 29, 1990. The administrative law judge then awarded Kozera the six-weeks of
paid sick leave and reasonable attorney's fees incurred by her.
Miller Brewing then
petitioned the Milwaukee County Circuit Court for judicial review of the
administrative law judge's decision.
The circuit court concluded that Kozera's state law claim under the FMLA
was federally preempted by § 301 of LMRA, and reversed the administrative
law judge's decision. Pursuant to
Chapter 227, Stats., Kozera
appealed the circuit court judgment to this court.
II. Analysis.
The only issue before us
is whether § 301 of the LMRA preempted Kozera's state law claim under the
FMLA. We reject the circuit court's
ruling and conclude that the claim is not preempted.
A. Standard of
review.
Kozera appeals from the
circuit court judgment pursuant to § 227.58, Stats.[4] In reviewing her claim, however, we review
the administrative agency's decision, not the circuit court's. Jocz v. DILHR, 196 Wis.2d 273,
289‑90, 538 N.W.2d 588, 592 (Ct. App. 1995). “Nonetheless, we apply the same standard and scope of review as
that which the [circuit] court employed when it reviewed the agency's
decision.” Id. at 290,
538 N.W.2d at 592. Further, “[t]he
subsections of § 227.57, Stats.,
delineate the specific scope of review we use to resolve each issue.” Id.
Federal preemption of a
matter deprives a state court or agency of subject matter jurisdiction. Dykema v. Volkswagenwerk AG,
189 Wis.2d 206, 210, 525 N.W.2d 754, 756 (Ct. App. 1994), cert. denied,
116 S. Ct. 60 (1995). This question
raises an issue of law and therefore the general scope of our review is set
forth by § 227.57(5), Stats.[5] Further, when the decision of an agency
deals with the agency's “subject matter jurisdiction to decide an issue, our
review is de novo and we will not give any deference to the agency's
decision on that issue.” Jocz,
196 Wis.2d at 291, 538 N.W.2d at 593.
B. Federal preemption.
Whether § 301 of the
LMRA preempts a state law claim is not a simple question; it requires reference
to federal law. International
Ass'n of Machinists & Aerospace Workers, IAM Local 437 v. United States Can
Co., 150 Wis.2d 479, 487, 441 N.W.2d 710, 713 (1989), cert. denied,
493 U.S. 1019 (1990). The issue is
further clouded because in drafting the LMRA, Congress “did not state
explicitly whether and to what extent it intended § 301 of the LMRA to preempt
state law.” Allis-Chalmers Corp.
v. Lueck, 471 U.S. 202, 208, 105 S. Ct. 1904, 1910, 85 L.Ed.2d 206, 213
(1985).[6]
In a series of cases,
the United States Supreme Court has discussed § 301's preemptive effect on
state law claims. E.g., Lingle
v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403‑06, 108 S.
Ct. 1877, 1880‑81, 100 L.Ed.2d 410, 417‑19 (1988). “The common thread running through the
Court's analyses is that `an application of state law is preempted by
§ 301 ... only if such application requires the interpretation of a
collective bargaining agreement.'” Leher
v. Consolidated Papers, Inc., 786 F. Supp. 1480, 1483-84 (W.D.
Wis. 1992) (citation omitted). As has
been noted, “[f]ederal labor policy does not prevent states from granting
substantive rights independent of the collective bargaining agreement to its
workers, as long as the claim can be resolved without interpreting the
agreement itself.” Id.
at 1484 (citation omitted).
The first step in
determining whether § 301 preemption applies is to examine the elements of
Kozera's claim to determine whether we must interpret her collective bargaining
agreement with Miller Brewing. Id.
at 1484. The elements of her claim
under § 103.10 of the FMLA are: (1) that she was covered by the FMLA at
the time of her request; (2) that she requested a substitution for family
leave; (3) that Miller Brewing provided the type of leave requested; (4) that she had accrued the substituted
leave and; (5) that Miller Brewing denied her request for substituted
leave. Id. at 1485
(citing unpublished decisions of the Wisconsin Department of Industry, Labor,
and Human Resources interpreting the FMLA).
It is undisputed that
Kozera was covered by the FMLA, that she requested a substitution for family
leave, and that Miller Brewing denied her request for substituted leave. The controversy in this case is whether we
must interpret Kozera's collective bargaining agreement with Miller Brewing to
determine the type of leave Miller Brewing provided and whether that leave had
accrued to Kozera.
Miller Brewing argues
that § 301 preempts because Kozera's claim is founded directly upon the
collective bargaining agreement and that resolution of her state law claim
depends upon an analysis of the agreement.
Kozera argues, however, that her claim is based solely on her statutory
right to substitute paid sick leave for unpaid family leave, not on an
interpretation of her collective bargaining agreement. We agree with Kozera.
In Livadas v.
Bradshaw, 114 S. Ct. 2068, 129 L.Ed.2d 93 (1994), the Supreme Court
observed “that § 301 cannot be read broadly to pre‑empt
nonnegotiable rights conferred on individual employees as a matter of state law ....” Id. at 2078, 129 L.Ed.2d at
109. Kozera's claim is just such a
non-negotiable right.
Under
§ 103.10(5)(b), Stats.,
“[a]n employe[e] may substitute, for portions of family leave ... paid or
unpaid leave of any other type provided by the employer.” We agree with Miller Brewing that we must
refer to the collective bargaining agreement to determine whether Miller
provided Kozera any type of “paid or unpaid leave.” Section 103.10(5)(b), Stats. This reference does not, however, invoke §
301 preemption. If a collective
bargaining agreement's terms are unambiguous, “the bare fact that [the] ...
agreement will be consulted in the course of state-law litigation plainly does
not require the claim to be extinguished.”
Livadas, 114 S. Ct. at 2078, 129 L.Ed.2d at 110.
The collective
bargaining agreement unambiguously provides for reserve paid sick leave to be
accumulated by Miller Brewing employees governed by the agreement.[7] We need not interpret this unambiguous
provision of the agreement. Hence, it
is clear that Miller Brewing did provide the type of substituted leave that
Kozera requested under the FMLA.
Further, we need not
interpret the agreement to determine whether the reserve paid sick leave had
accrued to Kozera. The plain language
of the agreement provides the conditions of sick-leave accrual, and both
parties stipulated that Kozera had accrued 952 hours of paid reserve sick leave
under the terms of the agreement. We
need go no further to analyze Kozera's claim.
“Lifting this fact from this agreement does not require interpretation
of the agreement.” Leher,
786 F. Supp. at 1485.
III. Summary.
In short, we conclude
that Kozera's claim derives solely from
§ 103.10(5)(b), Stats. This minimum labor standard expressly
permits substitution of unpaid family leave for the type of paid sick leave
provided by Kozera's collective bargaining agreement. We need not interpret Kozera's collective bargaining agreement
with Miller Brewing to analyze her claim.
Kozera has proven each element of her claim under the FMLA, and this
claim is not preempted under § 301 of the LMRA. Accordingly, the trial court erred when it reversed the
administrative law judge's decision awarding Kozera the six-weeks of paid
reserve sick leave and attorney's fees.
We reverse the trial court judgment and remand the matter to the trial
court for resolution consistent with this opinion.
By the Court.—Judgment
reversed and cause remanded with directions.
[1] The claim in this
case arose in 1990; thus, we use the version of § 103.10, Stats., in effect at that time. Section 103.10, Stats. (1989-90), provides in relevant part:
(3) Family leave. (a) 1. In a 12-month
period no employe may take more than 6 weeks of family leave under
par. (b)1 and 2.
2. In a
12-month period no employe may take more than 2 weeks of family leave for the
reasons specified under par. (b)3.
3. In a
12-month period no employe may take more than 8 weeks of family leave for any combination
of reasons specified under par. (b).
(b) An
employe may take family leave for any of the following reasons:
1. The
birth of the employe's natural child, if the leave begins within 16 weeks of
the child's birth.
2. The
placement of a child with the employe for adoption or as a precondition to
adoption under s. 48.90(2), but not both, if the leave begins within 16
weeks of the child's placement.
3. To care
for the employe's child, spouse or parent, if the child, spouse or parent has a
serious health condition.
(c) Except
as provided in par. (d), an employe shall schedule family leave after
reasonably considering the needs of his or her employer.
(d) An
employe may take family leave as partial absence from employment. An employe who does so shall schedule all
partial absence so it does not unduly disrupt the employer's operations.
....
(5) Payment for and restrictions upon leave. (a) This section does not entitle an
employe to receive wages or salary while taking family leave or medical leave.
(b) An employe may substitute, for portions of family leave or medical leave, paid or unpaid leave of any other type provided by the employer.
[2] Section 301 of the
LMRA provides:
Suits for violation of contracts
between an employer and a labor organization representing employees in an
industry affecting commerce as defined in this Chapter ... may be brought in
any district court of the United States having jurisdiction of the parties,
without respect to the amount in controversy or without regard to the
citizenship of the parties.
29 U.S.C. 185(a) (1990).
[3] The parties stipulated to the facts before the administrative law judge. The administrative law judge's decision adopted these stipulated facts.
[4] Section 227.58, Stats., provides:
Appeals. Any party, including the agency, may secure a review of the final judgment of the circuit court by appeal to the court of appeals within the time period specified in s. 808.04(1).
[5]
Section 227.57(5), Stats.,
provides:
The court shall set aside or modify the agency action if it finds that the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action, or it shall remand the case to the agency for further action under a correct interpretation of the provision of law.
[6] We also note that the drafters of the FMLA were concerned with the question of federal preemption. See Gabrielle Lessard, Comment, Conflicting Demands Meet Conflict of Laws: ERISA Preemption of Wisconsin's Family and Medical Leave Act, 1992 Wis. L. Rev. 809, 819‑20 (discussing state legislature's awareness of possible federal preemption of the FMLA).
[7] Article VII, § 4
of the collective bargaining agreement is entitled “Illness and Injury,” and
provides in relevant part:
(A) Each
employee shall be credited with a reserve of twenty (20) workdays' illness and
injury leave with pay per contract year.
It is understood that the days of leave taken shall be applied against
and in lieu of the weekly benefits provided for employees in Article VIII,
Section 2(C). Any unused leave under
this Section at the end of the contract year shall be accumulated and carried
over into the succeeding contract year but the maximum leave to be so
accumulated shall not exceed one-hundred-sixty (160) working days.
....
(D) All illness and injury leave earned after June 1, 1977, under this Section up to a maximum of one-hundred-sixty (160) days that has not been used for the purposes set forth herein may be accumulated and shall be paid to the employee at the time of retirement at the rate in effect at that time.