Miller Brewing Company v. Department of Industry
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SUPREME COURT OF WISCONSIN Case No.: 94-1628 Complete Title of Case: Miller Brewing Company, Plaintiff-Respondent-Petitioner, v. Department of Industry, Labor and Human Relations, Equal Rights Division, Defendant-Appellant, Becky Kozera, Defendant-Co-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 203 Wis. 2d 380, 553 N.W.2d 837 (Ct. App. 1996) PUBLISHED Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: June 6, 1997 April 29, 1997 Circuit Milwaukee Michael Guolee JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the plaintiff-respondent-petitioner there were briefs by Ely A. Leichtling, Carmella A. Huser and Quarles & Brady, Milwaukee and oral argument by Ely A. Leichtling. For the defendant-appellant the cause was argued by Richard Briles Moriarty, assistant attorney general with whom on the brief was James E. Doyle, attorney general. For the defendant-co-appellant there was a brief and oral argument by Michael J. Edmonds, Milwaukee. Amicus curiae brief was filed by Marianne Goldstein Robbins, Leeann Gruwell Anderson and Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee for the Wisconsin State AFL-CIO. Amicus curiae brief was filed by Patricia J. Meunier and Schneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, Milwaukee for the Wisconsin Federation of Nurses and Health Professionals. Amicus curiae brief was filed by Robert K. Sholl, Patrick D. Dolan and Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee for the Wisconsin Manufacturers & Commerce. Amicus curiae brief was filed by Ann M. Barry, Jennifer S. Walther and Buchanan & Barry, S.C., Milwaukee for the Wisconsin State Council of the Society for Human Resource Management. No. 94-1628 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 94-1628 STATE OF WISCONSIN : IN SUPREME COURT FILED Miller Brewing Company, Plaintiff-Respondent-Petitioner, JUN 6, 1997 v. Marilyn L. Graves Clerk of Supreme Court Madison, WI Department of Industry, Labor and Human Relations, Equal Rights Division, Defendant-Appellant, Becky Kozera, Defendant-Co-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 N. PATRICK CROOKS, J. Miller Affirmed. Brewing Company ("Miller") seeks review of a published decision of the court of appeals1 which reversed and remanded a judgment of the Circuit Court for Milwaukee County, Michael Guolee, Judge. appeals held that Becky Kozera's ("Kozera") The court of claim under the Wisconsin Family and Medical Leave Act ("FMLA"),2 is not pre- 1 Miller Brewing Co. v. DILHR, 203 Wis. 2d 380, 553 N.W.2d 837 (Ct. App. 1996). 2 The Wisconsin FMLA is located at Wis. Stat. § 103.10 (1987-88). Section 103.10 provides in relevant part: 1 No. 94-1628 empted by § 301 of the federal Labor Management Relations Act 3 ("LRMA"). We agree that Kozera's state law claim is not pre- empted by federal law, and therefore affirm the decision of the court of appeals. (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. . . . . 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. . . . . (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. All future references are to the 1987-88 Statutes unless otherwise indicated. 3 Section 301 of the federal 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 Act . . . 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) (1988). All future references are to the 1988 Code unless otherwise indicated. 2 No. 94-1628 I. ¶2 The relevant facts are undisputed. Kozera as a laboratory technician. laboratory technicians' represented Workers for Local 9, UAW of Miller employs Kozera is a member of the bargaining purposes 4 unit collective (Amalgamated) at Miller, bargaining AFL-CIO. The which by is Brewery terms and conditions of Kozera's employment are governed by a collectivebargaining agreement ("CBA") between the union and Miller. ¶3 On February 9, 1990, Miller approved disability leave for Kozera during her pregnancy. substituted leave. her paid reserve Pursuant to the CBA, Kozera sick leave for this disability Miller expected Kozera to return to work on April 16, 1990, six weeks after the due date of her child. However, on March 12, 1990, Kozera verbally requested a six-week parental 5 family leave under the Wisconsin FMLA, 1990. to begin on April 16, Kozera also requested that, pursuant to the FMLA, she be allowed to substitute six-weeks of paid reserve sick leave for unpaid family leave. As of April 16, Kozera had 952 hours of paid reserve sick leave under the terms of the CBA. ¶4 Miller granted Kozera a six-week parental leave. However, the CBA provided that employees could substitute paid reserve sick leave only when they were in fact sick and had submitted a doctor's note acceptable to Miller. Since Kozera was substitution. not sick, Miller denied her request for 4 Before the administrative law judge ("ALJ"), Kozera and Miller stipulated to the relevant underlying facts of this case. 5 The federal Family Medical Leave Act was not in effect at the time Kozera's claim arose. See 29 U.S.C. § 2611-19 (1994 & Supp. 1995). 3 No. 94-1628 Miller had never allowed an employee to use paid reserve sick leave for any reason except personal injury or illness. ¶5 On April 13, 1990, Kozera filed a complaint with the Department of Industry, Labor and Human Relations ("DILHR"), Equal Rights Division ("ERD"), alleging that Miller had violated her rights under the FMLA, Wis. Stat. § 103.10(5)(b). In order to successfully establish a violation of § 103.10(5)(b), Kozera was required to prove that: (1) she was covered by the FMLA at the time she requested the leave; (2) she requested a substitution for family leave; (3) Miller provided the type of leave requested;6 (4) the substituted leave had accrued to her; and (5) Miller denied the substituted leave. See Leher v. Consolidated Papers, Inc., 786 F. Supp. 1480, 1485 (W.D. Wis. 1992) (relying on decisions of DILHR interpreting the FMLA). Kozera and Miller in effect stipulated to elements one, two, and five; therefore, only elements three and four were in dispute. ¶6 On May 10, 1990, the ERD issued an initial determination finding probable cause to believe that Miller had violated the FMLA. Accordingly, on June 8, 1990, a hearing was held before an administrative law judge ("ALJ") on the merits of Kozera's claim. The ALJ concluded that Miller had violated § 103.10(5)(b) by refusing to allow Kozera to substitute paid reserve sick leave for unpaid family leave, even though Kozera was not sick when she requested the leave. 6 The ALJ ordered An employer must provide leave that is definite and quantifiable in order for such leave to be available for substitution under the FMLA. See Richland School Dist. v. DILHR, 174 Wis. 2d 878, 895-96, 498 N.W.2d 826 (1993). 4 No. 94-1628 Miller to pay back pay, interest, attorney's fees to Kozera. and reasonable actual The ALJ did not make an explicit determination as to whether Kozera's claim was federally preempted by § 301 of the LRMA, despite the fact that Miller raised this issue. ¶7 On December 12, 1990, Miller petitioned the circuit court for judicial review of the ALJ's decision pursuant to Wis. Stat. § 227.52. The parties subsequently obtained a stay of the proceedings pending DILHR, Wis. 174 the 2d outcome 878, Richland N.W.2d 498 of 826 School Dist. (1993). v. Richland resolved the issue of whether Kozera could substitute paid sick leave even though she was not sick, since the court held that "sec. 103.10(5)(b) does not require that the employe satisfy the conditions of leave eligibility set forth in the collective bargaining agreement before substitution is allowed." 898. Consequently, federal pre-emption was the 7 only Id. at issue remaining before the circuit court. ¶8 On April 20, decision of the ALJ. 1994, the circuit court reversed the In its memorandum decision, the circuit court relied on Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 stated: created (1988), in which the United States Supreme Court "Section 301 governs claims founded directly on rights by collective-bargaining agreements, and also claims 'substantially dependent on analysis of a collective-bargaining agreement.'" Id. at 410 n.10. The circuit court also explained 7 Federal pre-emption was not at issue in Richland because the Richland School District is a political subdivision of the state, and therefore is not an "employer" within the meaning of the LMRA. See 29 U.S.C. §§ 142(3) & 152(2). 5 No. 94-1628 that in Richland, this court indicated that the FMLA cannot be the source of compensation for substitution. Therefore, the circuit court concluded that because the CBA is the source of compensation for substitution, directly on rights created by Kozera's the CBA, dependent upon an analysis of the CBA. claim and is is founded substantially Thus, the circuit court held that Kozera's claim was pre-empted under § 301. ¶9 Kozera § 227.58. and DILHR appealed pursuant to Wis. Stat. On July 9, 1996, the court of appeals reversed the circuit court's decision. The court of appeals indicated that § 301 pre-empts a state law claim only if adjudication of the claim would require interpretation agreement. of a collective-bargaining Miller Brewing Co. v. DILHR, 203 Wis. 2d 380, 387- 88, 553 N.W.2d 837 (Ct. App. 1996) (quoting Leher, 786 F. Supp. at 1483-84). The court determined that, in this case, it would not need to interpret the CBA to analyze Kozera's claim because the CBA unambiguously provided for the type of leave that may be substituted under the FMLA. In addition, the court concluded that, under the unambiguous terms of the CBA, such leave had accrued to Kozera. this agreement agreement." The court stated: "Lifting this fact from does not require interpretation of the Id. at 390 (quoting Leher, 786 F. Supp. at 1485). Accordingly, the court of appeals held that Kozera's claim was not pre-empted under § 301. Id. II. ¶10 The pre-emptive effect of § 301 is a question of law. International Ass'n of Machinists & Aerospace Workers, IAM Local 437 v. United States Can, 150 Wis. 2d 479, 487, 441 N.W.2d 6 No. 94-1628 710 (1989), cert. denied, 493 U.S. 1019 (1990). Although this court generally is not bound by an agency's interpretation of a question of law, this court will interpretation in certain situations. defer to an agency's UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996); State ex rel. Parker v. Sullivan, 184 Wis. 2d 668, 699, 517 N.W.2d 449 (1994). This court has identified three levels of deference or review which may be granted to an agency's conclusion of law: great weight deference, due weight deference, and de novo review. UFE, 201 Wis. 2d at 284; Jicha v. DILHR, 169 Wis. 2d 284, 290-91, 485 N.W.2d 256 (1992). De novo review applies if a legal question is presented and there is no real evidence of any special agency expertise or experience. See Coutts v. Wisconsin Retirement Bd., Nos. 95-1905 & 95-2228, slip. op. (Wis. S. Ct. May 22, 1997). We conclude that DILHR has no special expertise or experience in determining questions of federal pre-emption, and therefore determine that de novo review is applicable here. 8 8 In addition, DILHR did not make an explicit determination as to the issue of federal pre-emption in this case. 7 No. 94-1628 III. A. GENERAL PRINCIPLES OF FEDERAL PRE-EMPTION ¶11 The pre-emption doctrine is rooted in article VI of the United States Constitution, which is commonly referred to as the Supremacy Clause. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985). The question of whether federal law pre- empts state law is one of congressional intent. Brown v. Hotel & Restaurant Employees & Bartenders Int'l Union Local 54, 468 U.S. 491, 500 (1984). situations: Federal law pre-empts state law in three (1) where Congress explicitly mandates pre-emption of state law; (2) where Congress implicitly indicates an intent to occupy an entire field of regulation to the exclusion of state law; or, federal law. (3) where state law actually of with Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299-300 (1988); Brown, 468 U.S. at 501. burden conflicts establishing pre-emption. The defendant bears the Derby v. Brenner Tank, Inc., 187 Wis. 2d 244, 248, 522 N.W.2d 274 (Ct. App. 1994); see also Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777, 779 (3d Cir. 1992). ¶12 The case before us extent of § 301 pre-emption. scope of principles. a statute's involves a question as to the A court's interpretation of the pre-emptive effect is guided by First, the U.S. Supreme Court has indicated that: [I]n all pre-emption cases, and particularly in those in which Congress has "legislated . . . in a field which the States have traditionally occupied," we "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." 8 two No. 94-1628 Medtronic, Inc. v. Lohr, __ U.S. __, 116 S. Ct. 2240, 2250 (1996) (internal citations omitted). presumption against pre-emption. context of labor law, the Accordingly, there is a 9 See id. Supreme Court In particular, in the has recognized that "pre-emption should not be lightly inferred in this area, since the establishment of labor standards traditional police power of the State." 10 falls within the Lingle, 486 U.S. at 412 (quoting Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21 (1987)). Second, the Supreme Court has determined that "any understanding of the scope of a pre-emption statute must rest primarily on a 'fair understanding of congressional purpose.'" 9 In Medtronic, the Supreme Court used the words "assumption" and "presumption" interchangeably, as is demonstrated by the following quote: Although dissenting Justices have argued that this assumption should apply only to the question whether Congress intended any pre-emption at all, as opposed to questions concerning the scope of its intended invalidation of state law, we used a "presumption against the pre-emption of state police power regulations" to support a narrow interpretation of such an express command in Cipollone. That approach is consistent with both federalism concerns and the historic primacy of state regulation of matters of health and safety. Medtronic, Inc. v. Lohr, __ U.S. __, 116 S. Ct. 2240, 2250 (1996) (internal citations omitted). For a general discussion on the presumption against preemption, see Ronald D. Rotunda & John E. Nowak, 2 Treatise on Constitutional Law: Substance & Procedure § 12.4 (2d ed. 1992 & Supp. 1997). 10 We acknowledge, however, that when pre-emption is based on the primary jurisdiction of the National Labor Relations Board, there is a presumption in favor of federal pre-emption. See Brown v. Hotel & Restaurant Employees & Bartenders Int'l Union Local 54, 468 U.S. 491, 502-03 (1984). 9 No. 94-1628 Id. (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 530 n.27 (1992)). B. ¶13 SPECIFIC PRINCPLES OF § 301 PRE-EMPTION Congress did not expressly indicate whether, or what extent, it intended § 301 to pre-empt state law. 471 U.S. at 208. to Lueck, However, when it first considered the question of § 301 pre-emption in Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962), the Supreme Court concluded that Congress intended "doctrines of federal labor law uniformly to prevail over inconsistent local rules."11 Id. at 104. The Lucas Flour Court explained the purposes of § 301 pre-emption as follows: [T]he subject matter of s 301(a) "is peculiarly one that calls for uniform law." The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. . . . Id. at 103-04 (internal citations omitted). Court indicated role of that arbitration employees exhaust collective-bargaining court. § 301 in the pre-emption labor agreement preserves disputes, grievance In addition, the by procedures before the central ensuring set bringing forth a that in claim a in See Lueck, 471 U.S. at 219 (explaining that this "was one of the central reasons that underlay the Court's holding in 11 The Supreme Court has determined that state and federal courts have concurrent jurisdiction of § 301 claims; however, a court must apply federal law in adjudicating such claims. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403 n.2 (1988). 10 No. 94-1628 Lucas Flour . . . ."). Accordingly, § 301 pre-emption ensures that common terms in collective-bargaining agreements are not given different interpretations in different jurisdictions, and promotes "the peaceable, management disputes." ¶14 consistent resolution of labor- Lingle, 486 U.S. at 404. In a series of decisions made after Lucas Flour, the Supreme Court has determined that the pre-emptive scope of § 301 is extensive. (1994) See Livadas ("Within its v. Bradshaw, 512 U.S. 107, 122 n.16 proper unusual pre-emptive power."). recognized that § 301 scope, § 301 has been accorded However, the Supreme Court has pre-emption applies only purposes of such pre-emption will be fulfilled. where the As explained by the Livadas Court: [T[he pre-emption rule has been applied only to assure that the purposes animating § 301 will be frustrated neither by state laws purporting to determine 'questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement," nor by parties' efforts to renege on their arbitration promises by 'relabeling' as tort suits actions simply alleging breaches of duties assumed in collectivebargaining agreements. Id. at 122-23 (internal citations omitted). ¶15 Therefore, although the pre-emptive effect of § 301 is broad, "not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301 . . . ." Lueck, 471 U.S. at 211. In particular, the Supreme Court has determined that "it would be inconsistent with congressional intent under [§ 301] to preempt state rules that proscribe conduct, or establish obligations, independent of a labor contract." rights and Id. at 212; see also Livadas, 512 U.S. at 123 (Section 301 does not "pre-empt 11 No. 94-1628 nonnegotiable rights conferred on 12 matter of state law . . . ."). individual employees as a Accordingly, the Supreme Court has held that "an application of state law is pre-empted by § 301 of the [LMRA] only if such application requires interpretation of a collective-bargaining agreement." 486 U.S. at emphasized 413 that 'independent' (emphasis "it of is the rights added). legal Likewise, character under the the of a the Lingle, Court claim, has as collective-bargaining agreement, that decides whether a state cause of action may go forward." Livadas, 512 U.S. at 123-24. A state law claim is "independent" if it "does not require construing the collectivebargaining agreement." Lingle, 486 U.S. at 407 (emphasis added). ¶16 In addition, the Court has stressed that "when the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished." 124. and Livadas, 512 U.S. at As the Seventh Circuit, applying the principles of Lingle Livadas, has stated: "Therefore, when the collective bargaining agreement is merely a tangential consideration in the resolution of an otherwise independent state law action or where resort to its provisions is merely pro forma, we can say with confidence that such consultation 12 does not trigger § 301 Such a non-negotiable right, established independent of a collective-bargaining agreement, exists in this case. See Richland School Dist. v. DILHR, 174 Wis. 2d 878, 906, 498 N.W.2d 826 (1993) ("Even if there were a conflict between the collective bargaining agreement and FMLA, the latter would prevail."); see also infra p. 16-17. 12 No. 94-1628 preemption." Loewen Group Int'l Inc. v. Habericheter, 65 F.3d 1417, 1422 (7th Cir. 1995). ¶17 This court has similarly recognized such principles. In International Ass'n of Machinists, this court indicated that the test for § 301 pre-emption "is not esoteric, but practicaldoes the adjudication of the state-law claim depend on the interpretation of the collective-bargaining agreement?" Wis. 2d at 492 (emphasis added). 150 The court also determined that, under § 301, "[i]f the claim does not require substantial interpretation of application federal of a collective-bargaining law is not agreement, required." Id. the at 493 (emphasis added). III. ¶18 law In the present case, Miller argues that Kozera's state claim under the FMLA is pre-empted by § 301 because adjudication of the claim requires interpretation of the CBA. Specifically, Miller points to Richland, in which the court determined: [T]he phrase 'leave . . . provided by the employer' refers to any type of leave that has accrued to the employe. Section Ind. 86.03, Wis. Adm. Code. Only those types of leave which an employment contract allows an employe to accumulate over time are available for substitution. Leave which is indefinite or which cannot be quantified at the time of the FMLA leave request is not 'leave provided by the employer' under FMLA. 174 Wis. 2d at 895-96 (emphasis original). Miller contends that we must interpret the CBA in order to determine whether, under the requirements set forth in Richland, Kozera's paid leave had accrued to her and was the type substitution under the FMLA. 13 of leave available for No. 94-1628 ¶19 Additionally, Miller stresses that the Richland court determined: "If the employe is to receive wages or salary while on FMLA leave, the authorization for such compensation must come from a source other FMLA." Id. at 895. Miller claims that, consequently, Kozera has no independent right to substitute paid sick leave under the FMLA, because the CBA provides the only possible authorization substitution. pre-empted for compensation available for Miller contends that Kozera's claim therefore is under § 301, because it is "founded directly" on rights created by the CBA.13 ¶20 conclude We that reject Miller's interpretation arguments. of a Specifically, disputed we contract or term provision is not required in order to determine that Kozera had accrued paid leave required by Richland. that was definite and quantifiable, as The parties agree that, at the time she requested substitution, Kozera had 952 hours of paid reserve sick leave under the terms of the CBA. Therefore, the paid leave was clearly definite and quantifiable. leave had accrued to Kozera. Moreover, such Article VII, § 4(A) of the CBA provides in relevant part: Each employee shall be credited with a reserve of twenty (20) workdays' illness and injury leave with pay per contract year. . . . 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. 13 The United States Supreme Court has indicated that "[s]ection 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims 'substantially dependent on analysis of a collective-bargaining agreement.'" Lingle, 486 U.S. at 410 n.10. 14 No. 94-1628 (R.8 at 44-45.) employees Therefore, the CBA unambiguously indicates that covered by the agreement, accumulate paid leave over time. plain language of the CBA such as Kozera, The mere need to refer to the to determine this fact require us to construe a disputed contract term. 512 U.S. at 124-25. shall does not See Livadas, As the Livadas Court emphasized: "[W]hen the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished." we need not interpret the CBA in Id. at 124. order to Thus, since determine that Kozera's paid leave had accrued to her and was the type of leave available for substitution under the FMLA, Kozera's claim is not pre-empted by § 301. See id. at 124-25. Further, because Kozera has established she accrued paid leave that was definite and quantifiable, she has established all the elements of her claim under Wis. Stat. § 103.10(5)(b). ¶21 Our determination regarding pre-emption is directly supported by Leher v. Consolidated Papers, Inc., 786 F. Supp. 1480 (W.D. Wis. 1992), in which the plaintiff filed a claim with DILHR against violated the her employer, Wisconsin claiming FMLA by that the refusing employer had request to her substitute paid sick leave for unpaid family leave. court indicated that the plain language of the The Leher bargaining agreement between plaintiff's union and her employer provided that sick leave accrued to the plaintiff. "Lifting this fact from the interpretation of the agreement." 15 agreement The court concluded: does Id. at 1485. not require Therefore, the No. 94-1628 court held that § 301 of the plaintiff's claim under the FMLA. ¶22 LMRA did not pre-empt the Id. In addition, we conclude that simply because the CBA provides the authorization substitution does not for that mean compensation Kozera's directly" on rights created by the CBA. available claim is for "founded Rather, Kozera's claim is directly founded on a right created by the FMLAthe right to substitute paid leave for unpaid family leave. See Leher, 786 F. Supp. at 1485 ("[P]laintiff's claim based on the [FMLA] is not a claim founded directly on rights created by the collective bargaining agreement. . . ."). In other words, Kozera does not assert to that she has a right substitution understanding embodied in the CBA. because of an In fact, Kozera could not make such an assertion, because the CBA clearly provides that an employee must be sick in order to use paid reserve sick leave. It therefore follows that Kozera's right to substitute paid reserve sick leave is not directly founded on rights created by the CBA. Instead, the Wisconsin legislature, by enacting the FMLA, has given workers such as Kozera the right to substitute accrued paid conditions of leave for unpaid leave eligibility bargaining agreement are not met. family set leave, forth in even a if the collective- See Richland, 174 Wis. 2d at 898. ¶23 This nonnegotiable right right to which individual employees. substitution the under legislature the has FMLA conferred is a upon See id. at 906 ("Even if there were a conflict between the collective bargaining agreement and FMLA, the latter would prevail."). It 16 would be inconsistent with No. 94-1628 congressional intent under § 301 to pre-empt this state statute, which establishes rights independent of a labor contract. Livadas, 512 U.S. at 123; Lueck, 471 U.S. at 212. the mere fact that the CBA provides the See Therefore, authorization for compensation available for substitution under the FMLA does not mean that Kozera's claim is pre-empted by § 301. ¶24 Moreover, our decision does not frustrate the two main purposes which § 301 servesensuring that terms and provisions of collective-bargaining agreements are given uniform interpretations and preserving the central role of arbitration in labor disputes. In particular, since adjudication of Kozera's claim does not require us to interpret or construe the CBA, we do different not and risk giving possible a contract conflicting or provision interpretation which is applicable under federal law. at 1485. term from a that See Leher, 786 F. Supp. In addition, no one has suggested that Kozera is attempting to avoid arbitration by bringing a claim under the FMLA. Thus, since pre-emption applies only to ensure that the purposes behind § 301 will not be frustrated, see Livadas, 512 U.S. at 122-23, pre-emption does not apply here. ¶25 its In summary, we conclude that Miller has failed to meet burden Kozera's of claim establishing under the that § 301 FMLA. of the First, LMRA pre-empts Miller has not established that adjudication of Kozera's claim will require us to interpret a disputed term or provision of the CBA. Second, Miller has not proven that Kozera's claim is directly founded on rights created by the CBA. Third, Miller has not demonstrated that pre-emption will serve the purposes of § 301. 17 Therefore, No. 94-1628 Miller has not overcome the presumption against pre-emption. We further conclude that Kozera has established the elements of her claim under Wis. Stat. § 103.10(5)(b). Thus, we affirm the decision of the court of appeals, which remands this case to the circuit court. By the Court. The decision affirmed. 18 of the court of appeals is
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