Opinion
February 7, 1956 —
March 6, 1956.
APPEALS from eleven judgments of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Lyman C. Conger and Edward J. Hammer, both of Kohler.
For the respondent Industrial Commission there was a brief by Austin T. Thorson and Arnold J. Spencer, both of Madison, and oral argument by Mr. Thorson.
For the individual respondents there was a brief by Max Raskin of Milwaukee, and David Rabinovitz of Sheboygan, and oral argument by Mr. Raskin.
Eleven separate actions were commenced by the Kohler Company to review awards of unemployment compensation to Raymond E. Majerus, John L. Zanskas, James C. Dekker, James H. Lacy, Donald L. Ramaker, Robert E. Wilcox, Raymond W. Reseburg, Vernon Bichler, Clarence J. Wield, Vernon V. Clark, and Robert Kretsch. In each of the cases one of the above-named defendants and the Industrial Commission of Wisconsin were named as defendants. The individual defendants had been employed by the Kohler Company in its enameling department for various periods prior to April 23, 1952, when they were discharged. Thereafter each filed a claim for benefits under the Unemployment Compensation Law. The plaintiff opposed each claim on the ground that the employees had each been discharged for misconduct. The claims were first heard by a commission deputy, who denied compensation in each case on the ground that the employee's action in refusing to work was a deliberate and intentional disregard of his duties and obligations to the employer. Each of the employees then requested a hearing before an appeal tribunal as provided by sec. 108.09, Stats. The commission appointed one of its examiners as the appeal tribunal, and hearings were scheduled to be held at Sheboygan, where the cases were consolidated for hearing under a stipulation that any testimony received would be considered testimony in each of the cases. Separate decisions by the appeal tribunal were made and filed in each case. Except for dates of hearing and appearance, the first appeal tribunal decision was as follows:
"The employer alleged that the employee was ineligible for unemployment benefits, on the ground that he was discharged for misconduct connected with his employment. The commission deputy's initial determination denied benefits on the ground alleged. The employee appealed. . . .
"Based on the applicable records and testimony in this case the appeal tribunal makes the following
"Findings of Fact
"The employer is engaged in the business of manufacturing bathtubs, sinks, and other enameled ware. The employee worked as an enameler in the employer's enamel department for about five years. He worked with a partner and their work consisted of preparing the pieces to be enameled and placing them in a furnace where they were heated to a high degree. After the pieces had been heated to the proper degree they were removed from the furnace, covered with powdered enamel, and returned to the furnace. After a short time they were again removed from the furnace and a second coating of powdered enamel was applied, after which they were returned to the furnace. When the baking process was completed the pieces were removed from the furnace. The ware was heated to a temperature of approximately 1750 degrees Fahrenheit. The temperature in the vicinity of the employee's place of work ranged from 100 to 250 degrees Fahrenheit, and the employee and others doing similar work wore protective clothing against the extreme heat.
"The enamel shop is ventilated by various types of fans which cause a complete change of air in the shop every 1.76 minutes. In addition to these there were 28 `barrel' or `man cooling' fans; and small desk fans were placed near the furnaces. The `barrel' fans were 27 inches in diameter and were so located that they moved air toward the furnaces in front of which the men were working. They had been in use in the enamel shop for several years.
"The employer had been experiencing a considerable amount of spoilage of enamelware caused by dirt getting onto it during the enameling process, and decided to conduct an experiment to determine whether this was caused by the `barrel' fans. Without consulting the men in the department or their union representatives the employer caused these fans to be turned off on April 7, 1952. After these fans were turned off the employee, who was an officer of the union that was the collective-bargaining agent of the employees, asked the superintendent of the enamel shop how long the fans were to be turned off, and was told that they would be off for a week. On April 11 a meeting was held between the union executive committee (of which the employee was a member) and the employer with regard to the `barrel' fans, and the employee asked the employer how long the fans would be turned off. He was not given any definite answer and told the employer that he was willing to go along with the experiment for a time, but not indefinitely. About the same time the employee told the superintendent of the enamel shop that he and the men would go along with the experiment for another week, until April 19. During that week the employee and the union representatives were not informed as to the progress of the experiment. The employee received complaints during that week from the men in the enamel shop with regard to the fans being turned off, which he reported to the superintendent of the enamel shop. On April 19 the employees of the enamel shop held a meeting, after which the following communication was sent to the employer:
"`The fans in the enamel shop were shut off without saying anything in advance to the (union). When an inquiry was made, we were told that they would be shut off for one week, during which time the company wanted to experiment with the amount of dirt in ware, if any, the fans are responsible for.
"`When the week was over and the fans were still not put back into operation, we were told upon inquiry that the experiment was inconclusive the first week because of too much rain and that another two-week period would be required. Accordingly, they were shut off all last week, during which period of time there were several warm days, and are intended to be shut off all this week.
"`The matter of the fans was thoroughly discussed at the meeting of all enamelers held . . . on Saturday, April 19, 1952. These men have been extending and overexerting themselves in working full shifts all this while that the fans have been out of operation to co-operate with the company, but they feel that to do so any longer would be injurious to their health.
"`As a result, these men voted unanimously that if the fans are not turned on by 8 o'clock Tuesday morning, April 22, 1952, they will no longer force themselves to complete any six-hour shift when they begin to feel sick, dizzy, or otherwise feel as if they cannot take it any longer and that continuing to work without fans would be injurious to their health.'
"The employer had a practice of requiring all enamelers who left their jobs for any reason to secure an `Employee's Absence Permit' card, but this practice had not been followed consistently in the past. This card provided a space for the foreman's approval of the absence, the destination of the employee, and his reason for leaving the job. On the card was a rule section which contained the printed phrases, `sent back to job' — `sent home,' with a space beneath for the signature of the company representative who made the decision.
"The enameling department operated around the clock in four six-hour shifts. The hours of the first shift were from 5:30 a. m. to 11:30 a. m., the second shift from 11:30 a. m. to 5:30 p. m., the third shift from 5:30 p. m. to 11:30 p. m., and the fourth shift from 11:30 p. m. to 5:30 a. m. On April 21, 46 men worked on the third shift. During the course of that shift 24 of them reported that they were sick and were sent to the company's medical department. Of these, 4 were sent home by the company doctors as being too sick to work, 8 had their cards marked `sent back to job,' and 12 received no specific directions from the doctors and went home. On the fourth shift (11:30 p. m., April 21, to 5:30 a. m., April 22) 48 men worked and 4 of them were sent home by their supervisors because they were sick. On April 22, 47 men worked on the first shift. During the course of that shift 21 men claimed that they were sick and were sent to the company's medical department. Of these, 6 were sent home by the company doctors as being too sick to work, and the remaining 15 had their cards marked `sent back to job.' On that same day 49 men worked on the second shift. During the course of that shift 42 men claimed that they were sick and were sent to the company's medical department. Of these, 15 were sent home by the company doctors as being too sick to work, and 27 had their cards marked `sent back to job.' On the third shift that day 39 men were at work. Of these only one claimed that he was sick and he returned to work after reporting to the medical department. On the fourth shift that day (11:30 p. m., April 22, to 5:30 a. m., April 23) 44 men were at work and one of them was sent home by his supervisor because of illness. The `barrel' fans were reconnected and put back in operation on April 22, 1952.
"On the eight shifts on April 21 and 22, 95 enamelers claimed that they were ill out of a total of 370 who worked on those days. On three shifts, namely, the third shift on April 21 and the first and second shifts on April 22, 87 claimed that they were ill out of a total of 142 at work on those shifts. On the other five shifts during those two days only 8 claimed that they were ill out of 228 at work. Of the 87 who reported that they were ill on the three shifts above mentioned, 25 were sent home on the recommendation of the company doctors, 12 went home who did not have any specific directions marked on their cards, and 12 went home whose cards were marked `sent back to job.' Only the 12 who went home whose cards were marked `sent back to job' were discharged.
"On April 21, 1952, the employee worked on the third shift (5:30 p. m. to 11:30 p. m.). At approximately 8:30 p. m. he felt sick and told his foreman that he wanted to go home. His foreman told him that he had no authority to send him home, and suggested that he take a shower bath. While the employee was in the shower room the foreman gave him an `Employee's Absence Permit' card and told him to report to the company's medical department, which the employee did. A company doctor examined the employee three times during a period of about fifteen minutes. The first examination disclosed that the employee's temperature was 99 degrees Fahrenheit, his pulse rate 128, and his blood pressure 168 over 114. A few minutes later the doctor re-examined him and found his blood pressure to be 150 over 100. The doctor then told him to go into another room away from other people, to sit there quietly, and not to talk to anyone. About ten minutes later the doctor again examined the employee and found that his blood pressure was 140 over 90 and his pulse rate 108. The employee remarked that he had a headache and that his stomach was upset, and the doctor gave him some pills. The doctor then returned the "Employee's Absence Permit' card to him and the employee left the medical department with the understanding that he had permission to go home.
"As the employee left the medical department he met the enamel-shop superintendent who asked him where he was going. The employee replied that he was going home. The employee then noticed that the doctor had marked his `Employee's Absence Permit' card as `sent back to job.' He returned to the medical department and told the doctor that he did not feel well and did not want to go back to work, and that he wanted the doctor's permission to go home. The doctor told him that he could go home if he wanted to, but that if he did he would be acting on his own judgment and responsibility. The employee then saw the personnel director and other representatives of management (who had come to the plant when they were informed that a group of men claimed they were ill) and told them that he wanted to go home. They informed him that he could go home, but that he would be doing so on his own responsibility, that the union had instigated the stoppage of work, and that he had five minutes to go back to work. The employee said that two hours had elapsed since he became sick on the job, and that he would go back and try to work. He returned to the enamel shop, noticed that it was after 10 p. m., and, since his shift ended at 11:30 p. m., told the superintendent that he was going home, and left the premises. He was not allowed to work the following day, and was discharged the day thereafter.
"The employer contended that the employees of the enamel shop were malingering, that their actions constituted an unlawful conspiracy to interfere with the operations of the enamel shop in order to enforce their demands on the employer, and that those men who went home when they were `sent back to job' by the doctors were discharged for misconduct connected with their employment. The basis for this contention was that the employees, by their memorandum to the employer, had indicated that they would cease work under certain circumstances. To meet this anticipated situation the employer adopted the new procedure of requiring all workers who claimed that they were sick to report to the medical department for examination. This was a departure from the procedure that had previously been followed, since before April 21 employees in the enamel shop who claimed that they were sick were allowed to go home when they notified their foreman that they were ill, without first being required to report to the medical department.
"Obviously, not all of the men who claimed that they were sick were feigning illness, because 25 of them went home on the recommendation of the company doctors. The fact that 25 men were found by the doctors to be too sick to continue at work negates the contention that the activity of the workers was a conspiracy of feigned illness, and shows clearly that the working conditions were such as to cause illness.
"It is undisputed that the heat to which the workers were exposed was intense. It is reasonable to conclude that it was more intense when the `barrel' fans were not in operation than when they were in operation for they would not otherwise have been used over an appreciable period. The conditions under which the men worked were extremely hazardous and a fainting or dizzy spell might result in a serious, if not fatal, injury. Under the circumstances, it would have been unwise for the men to continue to work, or for the employer to insist that they continue to work, when they felt ill. Under such conditions the degree of illness need not be great, and considerable latitude should be left to an employee's discretion as to whether or not he is able to continue at work.
"The employer maintained that the communication of April 19 was an ultimatum that a mass illness was being planned for the purpose of forcing the reconnection of the `barrel' fans. The communication could properly be interpreted as notification to the employer that the workers had extended and overexerted themselves while the `barrel' fans were not in operation, and that they would no longer continue to do so and would not complete their shifts when they felt ill. There was nothing improper or irregular in the employees' notifying the employer that the working conditions were unsatisfactory, and that they would not continue to work under the circumstances described in the communication.
"After the employer received the communication of April 19, it decided that all employees who claimed illness would be sent to the medical department for examination, and that any employee who went home without being ordered home by the company doctors would be discharged. Twelve employees on a total of three shifts went home without being `sent home' by the doctors. These employees were not told that if they went home they would be discharged, although most of them were told that if they went home they did so on their own responsibility.
"The company doctors who examined the employees testified that on the basis of their examinations they could not positively state that the employees were not ill, and told them to use their own judgment as to whether or not they should continue to work; but that in the doctors' opinion (on the basis of an incomplete examination) those who were not `sent home' were able to return to work. The doctors made it clear to the employees that they were not being forced to return to their jobs.
"The employee in this case informed his foreman about 8:30 p. m. on April 21, that he was ill and, after he had taken a shower bath, reported to the medical department. He had definite symptoms of illness when he stopped working. Even after he had taken a shower bath and had not worked for at least thirty minutes, the first examination by the company doctor disclosed a slight fever and elevated blood pressure and pulse rate. His blood pressure and pulse rate decreased by the time of the second and third examinations after which, in the doctor's opinion, he was able to return to work.
"The employee's physical condition was obviously abnormal at the time of the first examination, and it is not clear why he was not sent home at that time rather than given two additional examinations. The conclusion is inescapable that the employee was ill when he stopped working and at the time that he reported to the medical department, and, under past practice and custom, would without question have been allowed to go home. The fact that he was subjected to three examinations indicates that there was serious doubt by the doctor that the employee's physical condition was such that he was able to continue to work.
"The employer failed to establish that the employee was a party to a conspiracy for the purpose of interfering with the orderly operations of the employer's business. The employee was sick when he stopped working, when he was examined by the company doctor, and when he left the plant. In view of the extremely hazardous nature of his work he could not reasonably have been expected to continue at work in view of his physical condition. His leaving his job before the end of his shift, under the circumstances, did not constitute a wanton and substantial disregard of the employer's interests.
"The appeal tribunal therefore finds that the employee was not discharged for misconduct connected with his employment, within the meaning of section 108.04 (5) (a) of the statutes.
"Decision
"The commission deputy's initial determination is reversed. Benefits are allowed accordingly."
The other decisions were identical except as to length of employment, the nature of the claimed illness, the medical reports, and the circumstances under which the other employees left the factory.
The employer made application for a review by the Industrial Commission of the findings of the examiner. This application was a joint application for a review in each of the cases, and was in the following language:
"The undersigned hereby makes application for a review of the findings of the examiner in the above cases issued on the 24th day of February, 1953.
"The specific findings appealed from are as follows:
"Findings Which Petitioner Claims are Unwarranted by the Evidence
"1. The employee . . . left his work before the end of his shift because he was ill and his leaving under the circumstances did not constitute a wilful and substantial disregard of the employer's interests.
"2. It is undisputed that the heat to which the workers were exposed was intense. It is reasonable to conclude that it was more intense when the `barrel' fans were not in operation than when they were in operation.
"3. The fact that 25 men were found by the doctors to be too sick to continue at work negates the contention that the activity of the workers was a conspiracy of feigned illness, and shows clearly that the working conditions were such as to cause illness.
"4. The temperature in the vicinity of the employee's place of work ranged from 100 to 250 degrees Fahrenheit.
"5. The conditions under which the men worked were extremely hazardous and a fainting or dizzy spell might result in a serious, if not fatal, injury.
"Conclusions of Law Which Petitioner Claims are Erroneous
"1. There was nothing improper or irregular in the employee's notifying the employer that the working conditions were unsatisfactory, and that they would not continue to work under the circumstances described in the communication.
"2. Under such conditions the degree of illness need not be great, and considerable latitude should be left to an employee's discretion as to whether or not he is able to continue at work.
"3. The employer failed to establish that the employee was a party to a conspiracy for the purpose of interfering with the orderly operations of the employer's business.
"4. The examiner erred in rejecting Exhibit 144 (Rec. 350) — a copy of the charge filed by these appellants with the National Labor Relations Board — which contains statement at variance with and impeaching their testimony in this case."
The Industrial Commission modified some of the language in the decisions of the appeal tribunal but affirmed the decision in each case that the employee was entitled to benefits. The present actions were brought in the circuit court for Dane county to reverse the awards affirmed by the commission. Separate judgments were entered in said court on the 31st day of May, 1955, confirming the awards, and the plaintiff appealed from said judgments.
Upon these appeals, which were consolidated for hearing, the plaintiff makes two main contentions. The first is that the commission based its decisions on several errors of law rather than upon findings of fact. The second contention is that there is no credible evidence to support the commission's finding that the discharged employees were sick and that the record as a whole renders incredible the testimony of the employees that they were sick.
Apparently the same arguments were made to the trial court. In effect, the trial court held that this is a fact case; that the commission found that the employees were sick; that there was sufficient evidence to support that finding and that it cannot be held as a matter of law that there was misconduct on the part of the employees.
The appellant contends that the trial court oversimplified the issues. We agree with the trial court. The question to be determined by the commission was whether the men were sick at the time they left the factory or if they were feigning sickness as claimed by the employer. The question for determination upon these appeals is whether or not there is sufficient evidence in the record to sustain that finding of sickness.
At the time each of the employees left his work he complained of illness. Each reported to the medical department and told a doctor there that he was sick. Each was given a medical examination. The average time spent by the doctors in an examination was five or six minutes. In each case the blood pressure, temperature, and pulse rate were recorded. Medication was prescribed for eight of the eleven individual defendants. Two of the eleven were under the care of private physicians at the time, and so informed the doctors. The two company doctors who made the examinations were witnesses at the hearing. They did not testify that the employees were not ill, nor did any other witness testify that the employees were not ill when they left their work.
The question of the quantum of evidence to support a finding of fact by the Industrial Commission is thoroughly discussed in Hills Dry Goods Co. v. Industrial Comm. 217 Wis. 76, 258 N.W. 336. Following the discussion of the quantum of proof required, the court made this statement (p. 85):
"We may point out in this connection that application of the test suggested excludes the consideration of all questions relating to the weight of the evidence. When the test is applied and it is found that there are facts in evidence which if unanswered would warrant the commission in making the finding complained of, this court can go no further. The weight of the evidence and credibility of the witnesses under such circumstances are wholly for the commission."
The necessary quantum of proof to support the finding by the commission that the employees were sick was introduced by the claimants. The employer calls attention to 13 different circumstances that render the employees' claims, that they were too sick to continue to work, incredible. There are in the record many queer and suspicious circumstances. However, they all go to the credibility of the witnesses. We cannot weigh the evidence or judge the credibility of the witnesses. Those matters are for the commission.
We can assume, without deciding, that some of the conclusions of law complained of by the plaintiff were erroneous. However, that would not change the result. If the employees were sick when they left work, as the commission found, then their leaving did not constitute misconduct and the commission's determination on that issue must be affirmed.
By the Court. — Judgments affirmed.