The appellants are Milwaukee Area Joint Plumbing Apprenticeship Committee and seven labor organizations.
The ABC program approved by DILHR is entitled "Apprenticeship Standards for Associated Builders and Contractors of Wisconsin, Inc." It establishes a committee to administer and supervise the standards and provides that apprentices may enter an indenture with the committee. It contains almost thirty separate paragraphs covering sponsorship, applications, training, obligations of the employer and the apprentice, the term of training, probationary period, ratio of apprentices to skilled craftspersons, hours of work, wages, related school attendance, credit for previous experience, credit during the term of training, a complaint procedure, continuity of employment, examinations, cancellation of indentures, appeal procedure, etc. Attached to it are specific provisions applicable to particular trades.
The parties stipulated to the issue at the hearing which resulted in the DILHR decision. As described by the administrative law judge (ALJ), who conducted the hearing described in this opinion,
We immediately reject appellants' claim that the ALJ stated the issue too narrowly. Before DILHR issued. its final decision adopting the proposed decision of the ALJ, it gave all parties the opportunity to comment or to object to the proposed decision. Appellants lodged various objections to the proposed decision, but no objection was directed to the ALJ's statement of the issue, which we have quoted from his decision. It is too late to argue that the ALJ misdescribed the issue. The issue before us is as the ALJ described it.
Appellants contend that before it approved ABC's program, DILHR's policy was to administer a single construction
Appellants also contend that the program is inconsistent with DILHR's rules, and the ALJ should have admitted testimony by the staff of the legislature's Joint Committee for Review of Administrative Rules.
We reject appellant's contentions and affirm.
DILHR is responsible for regulating apprenticeships and apprenticeship indentures. Section 106.01(9), Stats. An apprentice enters a contract to receive from his employer, in consideration for his services, "instruction in any trade, craft or business." Section 106.01(1), Stats. The minimum term for the indenture, and the parties, form and content, as well as certain other terms, are prescribed by the statute. Section 106.01(3) through (5), Stats.
Section 106.01(5i)(a), Stats., provides in part:
Section 106.01(5i)(b), Stats., provides in part:
2. Hearing and Order on ABC's Program
In 1973, ABC applied to BAS for approval of an apprenticeship program. BAS denied approval because the program's standards failed to meet the state's standards in at least 50 respects.
Appellants sought a hearing under sec. 101.02, Stats., seeking invalidation of that approval.
Following the hearing, the ALJ found that apprenticeship programs provide Wisconsin industries with a continual supply of skilled workers, provide an additional career opportunity for many of the youth of the state, and serve as a protective measure for persons entering skilled trades training. The agreement or indenture between the employer and the apprentice is a basic part of the Wisconsin apprenticeship system. BAS must approve each indenture.
The ALJ found that employers, apprentices and potential apprentices throughout the state are interested in the indenture program. Because BAS has limited resources, it has encouraged industry participation in
The ALJ rejected appellants' argument that because it was employer-sponsored, approval of the ABC program was improper. He noted that sec. 106.01(5i)(a), Stats., specifically provides that an apprentice may enter an indenture with an employer organization, and he found that BAS has previously approved several employer-sponsored programs. He rejected appellants' argument that since they already have in place in Wisconsin a complex and effective program for indenturing, training and monitoring apprentices, it was duplicitous as well as improper to approve ABC's training program
The ALJ rejected appellants' argument that BAS engaged in rule-making when it approved the standards in ABC's apprenticeship program. The ALJ reasoned that in its
The ALJ did not explain why he used quotation marks when he referred to the standards in the
The ALJ denied appellants' request to invalidate BAS's approval of the ABC program. DILHR adopted
3. Scope of Appellate Review
The scope of our review is identical to that of the circuit court. Boynton Cab Co. v. DILHR, 96 Wis.2d 396, 405, 291 N.W.2d 850, 855 (1980). We therefore review DILHR's decision, not the circuit court's decision. We will uphold DILHR's factual findings if supported by substantial evidence. Section 227.57(6), Stats. When reviewing questions of law, we are not bound by DILHR's conclusions. Sauk County v. WERC, 165 Wis.2d 406, 413, 477 N.W.2d 267, 270 (1991). Because, however, DILHR is charged with the duty of regulating apprenticeships and apprenticeship indentures, sec. 106.01(9), Stats., its interpretation of ch. 106, Stats., is entitled to a degree of judicial deference. Lisney v. LIRC, 165 Wis.2d 628, 633-34 n.4, 478 N.W.2d 55, 56-57 n.4 (Ct. App. 1991).
We accord great weight to DILHR's interpretation of its own rules, unless the interpretation is plainly erroneous or inconsistent with DILHR's rules. Pfeiffer v. Board of Regents, 110 Wis.2d 146, 154-55, 328 N.W.2d 279, 283 (1983). Whether DILHR can approve the ABC program without following rule-making procedure is a question of law which we decide without deference to DILHR's view.
Section 106.01(5i)(a), Stats., plainly provides that an individual may enter an apprenticeship indenture with any organization of employees or association of employers, subject to DILHR's approval. It does not expressly authorize DILHR to grant or withhold approval of an apprenticeship "program" prepared by an association of employers or an organization of employees. Chapter 106, Stats., does not contain the word "program."
As the ALJ found, however, DILHR has approved many apprenticeship programs under its authority in sec. 106.01(5i)(a), Stats. DILHR's implied power, by virtue of sec. 106.01(5i)(a) to approve "programs," if it has a rule in place, is undisputed. We infer from the ALJ's decision (which DILHR adopted) that DILHR interprets Wis. Adm. Code sec. Ind. 95.01(1) to be such a rule. Section Ind. 95.01(1) provides:
DILHR knows the specific purpose of its own rule. See Pfeiffer, 110 Wis.2d at 155, 328 N.W.2d at 283 ("An administrative agency knows the specific purposes of the regulations it has promulgated."). DILHR's interpretation of Wis. Adm. Code sec. Ind. 95.01(1) as covering approval of apprenticeship programs proposed by employer associations, including those in the construction
Wisconsin Adm. Code sec. Ind. 95.01(1) does not distinguish between programs proposed by an organization of employees and programs proposed by an association of employers. Nor does it distinguish between apprenticeship programs for various industries. Specifically, it does not distinguish construction apprenticeship programs from other apprenticeship programs. It would be pointless for sec. Ind. 95.01(1) to authorize DILHR to adopt statewide apprenticeship standards covering matters constituting an apprenticeship program proposed by an employer association unless DILHR would entertain proposals for such programs.
We conclude that rule-making was unnecessary for DILHR to approve apprenticeship programs generally, and employer association programs in particular, before the ABC program could be approved.
5. BAS Approval of Program Not Itself a Rule
Section 227.01(13), Stats., defines a rule as
BAS's approval is not a rule, as defined in sec. 227.01(13), Stats. It is at most an order directed to a specifically named person,
Consequently, approval of the ABC program, without more, was not a rule-making procedure such that DILHR was required to follow the administrative rulemaking procedures in ch. 227, Stats.
Because the ALJ (and therefore DILHR) reasoned that the
a. DILHR Based Its Approval on Its Rules in the
DILHR contends that it would have abused its discretion had it based its decision on the
DILHR's contention is extraordinary. It contradicts the history of this case. It ignores its own decision. We reject it. The fact is that DILHR based its decision on the
In its post-hearing brief to the ALJ, counsel for BAS never raised the point regarding failure of the
Then, in accordance with sec. 227.46(2) and (4), Stats., DILHR gave all parties the opportunity to comment or object to the ALJ's proposed decision. Far from disputing the ALJ's reasoning, counsel for BAS urged
Thus, DILHR approved the ABC program on the basis of the "rules" contained in the
Whether DILHR abused its discretion when approving the ABC program by basing its decision on the
We conclude that the
Whether all or parts of the
It is immaterial that the
The subtitle of the
The elements of a rule are (1) a regulation, standard, statement of policy or general order, (2) of general application, (3) having the effect of law, (4) issued by an agency, (5) to implement, interpret or make specific legislation enforced or administered by the agency. Section 227.01(13), Stats.; Wisconsin Elec. Power Co., 93 Wis. 2d at 232, 287 N.W.2d at 118-19.
Chapter I of the
Chapter II is entitled "Policies and Procedures for State and Area Joint Apprenticeship Committee Programs." It describes how joint committees are established and their functions, their advisory nature and their power to develop apprenticeship standards, subject to adoption by BAS, and how the committees draw standards for a statewide apprenticeship program. Those provisions are informational and descriptive, and therefore are not rules. Section 227.01(13)(r), Stats. Chapter II also provides that when BAS adopts state standards recommended by a committee, all indentures "will have to meet the minimums of those standards." The latter provision meets the elements of and is a rule.
Chapter III, covering policies and procedures for individually sponsored apprenticeship programs, contains mandatory provisions regarding equal employment opportunity, selection, indenture processing, recordkeeping, indenture cancellation and apprentice layoffs, supervision, school attendance and progress. All of those provisions are rules. Chapter IV contains mandatory provisions regarding instruction, methods of providing paid related instruction, industry's obligation to see that related instruction is correct, and recordkeeping. Those provisions are also rules.
No showing has been made that the ABC program could not be approved on the basis of those provisions in the
7. Long-standing DILHR Interpretation
Appellants argue, however, that by approving ABC's program, DILHR has reversed a long-standing interpretation of its rules and its
Appellants' argument is an assertion of fact. We look to the record to test it. The record fails to show that the claimed fact exists. There is no evidence that DILHR has ever denied approval of a program merely because the program did not involve a joint committee. Appellants claim that DILHR "had consistently rejected similar [programs] by the ABC," but the ALJ found that DILHR only once rejected an ABC program, and it did
The ALJ had no reason to reach the likely cause of the lack of evidence for the "long-standing interpretation" claimed by appellants. The only reasonable inference is that an attorney general opinion is the likely cause. In 1945, DILHR's predecessor, the Industrial Commission, asked the attorney general whether the commission could require "that all apprentices in a given trade be indentured exclusively to a joint committee organized in that trade and... deny to an individual employer the right to enter into an apprenticeship indenture." 34 Op. Atty. Gen. 257, 258-59 (1945). The attorney general responded that sec. 106.01, Stats. (1945), recognizes that an apprentice may be indentured to an individual employer and that the commission could not require that all apprentices be indentured exclusively to a joint committee and deny an individual employer the right to enter an apprenticeship indenture. Op. Atty. Gen. at 259. The attorney general stated that such a requirement would be contrary to the intent, purposes and plain provisions of the statute. Id.
8. Wisconsin Administrative Code Ch. Ind. 95
We turn to appellants' claim that Wis. Adm. Code ch. Ind. 95 generally and its specific rules constitute an interpretation by DILHR that joint committees control
As we have said, an interpretation by DILHR of its own rules is entitled to great weight unless it is plainly erroneous or inconsistent with its rules. Pfeiffer, 110 Wis. 2d at 154-55, 328 N.W.2d at 283. However, nothing in the ALJ's opinion suggests that when BAS approved the ABC program it directly interpreted any part of Wis. Adm. Code ch. Ind. 95, in addition to its
Appellants assert that ch. Ind. 95 requires that joint committees control construction apprenticeships. But Wis. Adm. Code ch. Ind. 95 makes no express reference to the construction trades, except in Wis. Adm. Code sec. Ind. 95.10 regarding family-owned construction businesses. That provision hardly supports appellants' position.
Appellants assert that Wis. Adm. Code sec. Ind. 95.02 shows that joint committees control all apprenticeship programs in the construction industry. We disagree. Section Ind. 95.02(1) describes the function of joint committees as acting "in an advisory capacity to [DILHR] and to be parties to indentures as provided in s. 106.01(5i)(a), Stats." It does not provide that only joint committees may be parties to indentures. Indeed, such a provision or interpretation would contradict sec. 106.01(5i)(a) which expressly authorizes apprentices to enter an indenture with any "association of employers." Wisconsin Adm. Code sec. Ind. 95.02(2) provides that sec. Ind. 95.02 "does not apply to shop or plant sponsored apprenticeship programs...." Appellants
We reject appellants' contention that Wis. Adm. Code sec. Ind. 95.05 confers on joint committees exclusive control of construction apprenticeships. That section provides in relevant part: "In trades and communities having active area joint apprenticeship committees recognized by [DILHR], a copy of the application for approval of indentures will be referred to such committees by [DILHR] for recommendation. "
That procedure does not confer exclusivity on the joint committees. For example, the person who seeks an ABC program apprenticeship applies directly to the ABC committee, not to DILHR. In that case, referral by DILHR to a joint committee would be unnecessary, and Wis. Adm. Code sec. Ind. 95.05 would not apply. The rule directs DILHR, not apprenticeship programs, to refer applications, and the ABC program need not comply with the rule.
Nor may exclusivity for joint committees be based on Wis. Adm. Code. sec. Ind. 95.08, which recognizes the
We conclude that Wis. Adm. Code ch. Ind. 95 does not constitute an interpretation by DILHR that construction apprenticeships are controlled by the joint committee system in the construction industry.
9. Wisconsin Administrative Code Sec. ILHR 81.02
Appellants assert that Wis. Adm. Code sec. ILHR 81.02 is evidence that the joint committees control apprenticeships in the construction industry. Section ILHR 81.02 pertains only to plumbing apprenticeships.
Wisconsin Adm. Code sec. ILHR 81.02 is a far cry from conferring exclusive control over plumbing apprenticeships to the joint committee system. As provided in Chapter I of the
Moreover, we see no reason why an employer-sponsored apprenticeship program cannot accommodate Wis. Adm. Code sec. ILHR 81.02. If an employer-sponsored program must comply with Wis. Adm. sec. ILHR 81.02 (a point we need not decide) that would not confer exclusivity on the joint apprenticeship system, even with respect to plumbing apprenticeships.
10. Policy Statement
A policy statement may of course be a rule if it has the effect of law and is issued to implement, interpret or make specific legislation administered by the agency. Section 227.01(13), Stats. The ALJ rejected appellants' claim to exclusivity for the joint committees but did not make express findings regarding the 1973 statement.
That rejection by the ALJ is consistent only with an underlying or implicit finding that the 1973 policy statement was not intended to interpret DILHR's rules and
The record contains that evidence. The past director of BAS testified that DILHR released the 1973 statement after the United States Department of Labor approved ABC's national apprenticeship standards. ABC had publicized that approval and its own national standards, and DILHR feared Wisconsin contractors would believe they could employ apprentices under the national standards. DILHR believed that employment of apprentices under those standards would violate Wisconsin's apprenticeship law. The purpose of the policy statement was to ensure that only state-approved programs would operate in Wisconsin.
In light of that testimony, the policy statement did not mean that even in 1973 the joint apprenticeship committees had exclusive power over the selection, education and training of construction apprentices in Wisconsin. It meant that a Wisconsin employer must employ an apprentice under Wisconsin law. At that time a construction apprenticeship program was processed through a joint apprenticeship committee. The 1973 policy statement no more suggested exclusivity than would telling a person looking for a restaurant that there is only one in town.
11. Evidentiary Rulings
Appellants assert that the ALJ erred because he failed to admit evidence that in actual operation the ABC program is far removed from anything allowed under the statutes, DILHR's published rules or the
Appellants assert that the ALJ should have allowed testimony or documentary evidence regarding involvement by the legislature's Joint Committee for Review of Administrative Rules (JCRAR) after DILHR approved the ABC program. JCRAR's purpose is to "promote adequate and proper rules, statements of general policy and
We fail to see how any action by the JCRAR bears on the issue in this case: whether DILHR's approval was a rule such that it should have followed rule-making procedure. Any action by the JCRAR was after-the-fact and irrelevant to that issue.
Because we conclude that approval of the ABC program was not a procedure such that DILHR was required to follow rule-making procedure, we affirm the judgment of the circuit court.
By the Court.—Judgment affirmed.
Letter from M. M. Hanson, Field Representative, Federal Committee on Apprentice Training, to Henry Ohl, Jr., President, Wisconsin State Federation of Labor (Dec. 28, 1936), in drafting file for ch. 274, Laws of 1937, Wisconsin Legislative Reference Bureau.