In the matter of the unemployment benefit claims of
VERNON E. ALBRECHT et al., Employees
Involving the account of
HARLEY-DAVIDSON MOTOR CO., INC., Employer
The employer alleged that the employes were ineligible for benefits beginning in week 25 of 1972, on the ground that they left or lost their employment because of a strike or other bona fide labor dispute in active progress in the employer's establishment. The commission deputy's initial determinations in each case denied benefits. The employes appealed. Hearing was held at Rhinelander on March 8, 1973, before an examiner, acting as an appeal tribunal. On March 28, 1973, the appeal tribunal issued its decision affirming the initial determinations denying benefits accordingly. The employes petitioned the commission for review of the appeal tribunal decision.
Based on the applicable records and evidence in this case and after consultation with the examiner, the Industry, Labor and Human Relations Commission makes the following
The employer is a corporation engaged in the business of manufacturing recreational vehicles such as motorcycles, snowmobiles, and golf carts. Five plants are maintained to carry on its manufacturing business and three of them are located in the Milwaukee area, one in Tomahawk, and one in a foreign country. One of the Milwaukee plants is the headquarter plant for all operations and several hundred workers are employed in that facility. The other two Milwaukee plants are located 18 and 25 miles away from the headquarter plant. The Tomahawk plant is located about 254 miles from the Milwaukee plants.
All production workers employed in the Milwaukee plants and the Tomahawk plant are members of the same union - Allied Industrial Workers AFL-CIO. The Milwaukee production workers are members of Local No. 209 and the Tomahawk production workers are members of Local No. 460.
On June 6, 1972 (week 24), production workers at the Milwaukee plants went out on strike against the employer over terms and conditions of the employment contract that expired on that date. Picket lines were then maintained by the striking employes at the three Milwaukee plants. Because the employer was prevented by picket lines from moving parts manufactured at the Tomahawk plant to the Milwaukee plants or to move supplies from the Milwaukee plants to the Tomahawk plant, notices were given to 62 Tomahawk employes, the employes involved herein, that their employment would cease Friday afternoon June 9, 1972 (week 24), because of the strike at the Milwaukee plants. The employes involved herein then registered for work at a public employment office and filed claims for benefits. The employer asserted that they were ineligible for benefit payments on the ground that they had lost their employment because of a strike in active progress in the establishment in which they were employed. The active progress of the strike extended through June 30, 1972 (week 27), and all employes were notified to return to work on Monday, July 10, 1972 (week 29).
Section 108.04(10) of the statutes provides, as follows:
"(10) LABOR DISPUTE. An employe who has left (or partially or totally lost) his employment with an employing unit because of a strike or other bona fide labor dispute shall not be eligible for benefits from such (or any previous) employer's account for any week in which such strike or other bona fide labor dispute is in active progress in the establishment in which he is or was employed."
The Tomahawk employes involved herein were employed in the manufacture of component parts for golf carts, snowmobiles, and motorcycles assembled at the Milwaukee plants. These included, plastic body, front center section and right and left wing of golf carts, windshields, fenders, fairings, saddlebags and tour pack. for motorcycles, and plastic cowls and dashboards for snowmobiles.
All components manufactured at the Tomahawk plant were transported by truck to the Milwaukee plants on a daily basis. The employer maintained three highway trailers and one tractor for this purpose. One trailer was always at the Tomahawk plant being unloaded or loaded, one was always at the Milwaukee plant being unloaded or loaded, and the third trailer was attached to the tractor that hauled it between Milwaukee and Tomahawk either carrying the component parts manufactured at Tomahawk or raw materials picked up at the Milwaukee plants for use at the Tomahawk plant. Two truck drivers, headquartered in Tomahawk, drove the tractor between Milwaukee and Tomahawk, and they helped unload and load the trailers at the Tomahawk and Milwaukee plants.
Production schedules for the Tomahawk operations were established at the Milwaukee headquarters to synchronize and integrate with production schedules at the Milwaukee assembly plants. Payroll records were maintained at the Milwaukee headquarters and paychecks were distributed weekly from there to the Tomahawk employes based on time cards forwarded from the Tomahawk plant. All ordering of raw materials for use in the Tomahawk plant was done in the Milwaukee headquarter plant. All engineering work was done in Milwaukee. All bookkeeping work was done in Milwaukee. Daily contact was necessary between Tomahawk and Milwaukee for production control and for adjusting schedules. Also, some parts made in Milwaukee were transported to Tomahawk for use in the manufacture of component parts and then were returned to Milwaukee for final assembly. However, there is a separate supervisor for each plant.
Although workers in the Milwaukee plants belonged to a different local of the same international union to which the employes working in Tomahawk belonged, holiday benefits for both locals, company seniority benefits, pension benefits and the master insurance contract were the same, and there was some similarity in the contracts as to the hospital and surgical insurance benefit program. However, separate contracts are negotiated with each union local, members of one do not have seniority in the others for promotion or transfer purposes, and each union local had different bargaining committees.
In Spielmann v. Industrial Comm. (1540), 236 Wis. 240, 295 N.W. 19 the Wisconsin Supreme Court held that two plants, although located 40 miles apart, constituted one establishment because of their functional integrality, general unity and physical proximity. However, in Schaeffer v. Industrial Comm. (1960), 11 Wis. (2d) 358, the Court held that a plant owned by an employer located 80 miles away, where a strike or labor dispute was in active progress, was not part of the same establishment. The court said, in part, at page 364, as follows:
"We are of the opinion that the legislature must have had something in mind besides mere interdependence of production when it employed the term 'establishment' in enacting sec. 108.04(10), Stats. This is because it is difficult to visualize a situation where a strike in one plant will result in the closing down of another plant of the same employer except where there is interdependence of production. Therefore, if the legislature had intended that in all such cases of closing down, because of a strike or labor dispute involving a particular employer, an employee should be barred from unemployment compensation, there would have been no necessity for limiting the location of the strike, or labor dispute, to the particular 'establishment' in which he is or was employed."
At page 366 of the Schaeffer case the Court further said:
"We are now satisfied, from the context in which the word 'establishment' appears in sec. 108.04(10), Stats., it was not employed by the legislature as meaning a 'permanent commercial organization,' and that a more-limited meaning was obviously intended."
In Schaeffer the Court cited Nordling v. Ford Motor Co. (1950), 231 Minn. 68; 42 N.W. (2d) 576, which held that the Spielmann test of functional integrality, general unity, and physical proximity should not be adopted as an absolute test in all cases of this type because "the solution of the problem lies in determining from all the facts available whether the unit under consideration is a separate establishment from the standpoint of management or for the more-efficient production of goods." Although citing the Nordling case, which appeared to dilute the three-pronged test of functional integrality, general unity, and physical proximity as an absolute test that was formulated in Spielmann, the Court declined to abandon such test but did amplify its position by stating at page 367 that:
". . . we are of the opinion that unity of employment is deserving of more weight than unity of management in considering the factor of unity." (Emphasis supplied)
The Court further said in Schaeffer that whether two plants of the same employer constitute one ''establishment", presents a question of fact for the determination of the Industrial Commission, and its finding on such issue would be controlling on reviewing courts except that a line of demarcation necessarily has to exist beyond which the issue ceases to be one of fact and becomes one of law when under any reasonable interpretation of the statute this is not the case.
Although there was a high degree of functional integrality in the instant case and substantial unity of employment, because of the considerable distance between the Milwaukee plants where the strike took place and the Tomahawk plant where the employes herein were employed, a serious question exists as to whether there was such "physical proximity" that constitute the plants at such locations as the same "establishment", within the meaning of section 108.04(10) of the statutes.
With respect to proximity of operations, no formalization of the element of physical distance into a mathematical certitude has, as yet, been adopted by the Court (Liberty Trucking Company v. Department of Industry, Labor and Human Relations, et al. (1972), 57 Wis. (2d) 331).
Webster's New International Dictionary, Second Edition Unabridged (1940), defines "Proximity" at page 1995, as follows:
"Quality of state of being next or very near in time, place, causation, influence, relationship, etc.; immediate or close propinquity.
Syn. - Nearness, vicinity. - PROXIMITY, PROPINQUITY, PROXIMITY denotes simple nearness, and is used with reference to either persons or things; PROPINQUITY, as here compared, connotes close neighborhood, and commonly refers to personal vicinity . . ."
73 C.J.S. 272 defines "proximity" as follows:
"A term defined as meaning the quality or state of being next or very near in time, place, custom, influence, relationship, etc.; immediate or close propinquity. It has been held synonymous with 'juxtaposition".
51 C.J.S. 481 defines "juxtaposition", as follows
"A placing or being placed in nearness or contiguity, or side by side, as a juxtaposition of words; a placing or being placed side by side."
Further, as pointed out in the Liberty Trucking Company case, supra, no element of functional integrality, general unity or physical proximity is controlling with respect to the definition of "establishment," as such term is used in section 108.04(10) of the statutes.
The fact of the matter in the instant case is that the employes involved herein were not on strike against the employer, they did not support the strike, and they had a different union contract of employment with a different expiration date from the union contract of those employes who had gone out on strike against the employer at a place of employment 254 miles away. To find that there was physical proximity of operations between two plants separated by a distance of 254 miles, constituting them the same "establishment" under the labor dispute provision of the unemployment compensation law, supra, would do violence to the plain meaning of the word "proximity".
Under all of the circumstances of this case the employes involved herein cannot be deemed to have lost their employment because of a strike in active progress in the establishment in which they are or were employed.
The Commission therefore finds that the employes involved herein did not lose their employment with the employer in weeks 24, 25, 26 and 27 of 1972, because of a strike in active progress in the establishment in which they are or were employed, within the meaning of section 103.04(10) of the statutes.
The decision of the Appeal Tribunal is reversed. Accordingly, the employes are eligible for benefits.
Dated and mailed July 27, 1973
LD 510
/s/ John C. Zinos, Commissioner
/s/ Philip E. Lerman, Commissioner
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