Petition for Writ of Certiorari — Universal Foods Corp. v. Wisconsin Labor & Industry Review Commission
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Supreme Court, U.S,
$61*101 FILED
NO. JUL 17 1992
SUPREME COURT OF THE | Wrrice OF THE CLERK x |
UNITED STATES OF AMERICA
OCTOBER 1990 TERM
UNIVERSAL FOODS CORPORATION,
Plaintiff-Petitioner,
vs.
STATE OF WISCONSIN LABOR &
INDUSTRY REVIEW COMMISSION
and BARBARA DAMATO,
Defen_ants-Respondents.
PETITION FOR WRIT OF CERTIORARI TO ‘HE
SUPREME COURT OF THE STATE OF WISCONSIN
PETITION FOR WRIT OF CERTIORARI
COUNSEL OF RECORD FOR
UNIVERSAL FOODS CORPORATION:
ATTORNEY DANIEL J. STANGLE
OTJEN, VAN ERT, STANGLE,
LIEB & WEIR, S. C.
700 N. Water Street, Suite 800
Milwaukee, WI 53202
(414) 271-7271
Other members of Bar
of Wisconsin:
ATTORNEY THOMAS M. ROHE
OTJEN, VAN ERT, STANGLE,
LIEB & WEIR, S.C.
QUESTIONS PRESENTED FOR REVIEW
Le Did this Court in Lingle vs.
Norge Division of Magic Chef, 486 U.S.
399, 108 S. Ct. 1877, 100 L.Ed. 2d 410
(1988) intend to allow a state law cause
of action expressly governed by the terms
of a collective bargaining agreement?
2. Is an interpretation or analysis
of a collective bargaining agreement
necessary in order for a state agency to
decide whether an employee has a valid
claim under Wis. Stats. Section
102.35(3), so as to cause pre-emption by
Section 301 of the Labor Management
Relations Act, 29 U.S.C. Section 185?
ole
LIST OF ALL PARTIES
All of the parties to this
proceeding are listed in the caption on
the cover. Universal Foods Corporation
is a corporation without ae parent
company. All of the subsidiaries of
Universal Foods Corporation are wholly
owned subsidiaries. There are no
partially owned subsidiaries of Universal
Foods Corporation.
wtte
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES 7s + « « « Swe
REFERENCE TO OTHER REPORTS
OF OPINIONS DELIVERED IN
Tow eat sf fg lg fg wl WEE
GROUNDS FOR JURISDICTION .... viii
STATUTES INVOLVED ........ 1x
STATEMENT OF THE CASE .....e..-etl
Cite. oe 5 « @« « « «& « ba
POINT A: THE WISCONSIN
DECISION DIRECTLY
CONFLICTS WITH
SUPREME COURT AND
FEDERAL APPELLATE
ot 6) y Sl i |
CONCLUSION a ae |
Da Te. « « « ~« « « -« « « AwW1°158
-iii-
TABLE OF AUTHORITIES
CASES
1. Allis Chalmers vs. Lueck, 471 U.S.
202, 210, 213, 220, 105 S. Ct. 1904,
L.Ed. 2d 206 (1985)
-. Si, 38; 27, 38, 32
2. Hanks vs. General Motors Corporation,
859 F. 2d 67, 69 (8th Cir. 1988)
p. 23
3. Harris vs. Alumax Mill Products,
Inc., 897 F. 2d 400, 403 (9th Cir.
1990)
p. 23
4. Jackson vs. Liquid Carbonic Corp.,
863 F. 2d 111, 118-121 (list Cir.
1988)
-~iv-
5.
6.
Ve
8.
Johnson vs. Beatrice Foods Company,
921 F. 2d 1015, 1020 (10th Cir.
1990)
p. 23
Kirby vs. Alleghany Beverage Corp.,
811 F. 2d 253, 255-6 (4th Cir. 1987)
p. 19
Lingle vs. Norge Division of Magic
Chef, Inc., 486 U.S. 399, 411, 413,
418-9, 422, 108 S. Ct. i877, 100
L.Ed. 2d 410 (1988)
23
Litton Financial Printing Division
vs. NLRB, No. 90-285, , U.S.
, £238 8. Cb... 2235. L.Ed. 2d
(Decided June 13, 1991)
p. 22
-V=-
9. Magerer vs. John Sexton & Company,
912 F. 2d 525, 527, 529 (lst. Cir.
1990)
10. Miller vs. AT & T Network Systems,
850 F. 2d 543, 550-1 (9th Cir. 1988)
p. 19
11. Sluder vs. United Mine Workers of
America, 892 F. 2d 549, 554-6
(7th Cir. 1989)
p. 23
12. -Stikes vs. Chevron USA, Inc., 914 F.
2d 1265, 1269-1270 (9th Cir. 1990)
p. 19
13. Universal Foods Corporation vs. LIRC,
Wis. , 467 N.W. 2d 793
(Wis. App. 1991)
p. 10, 24
-_ oe
STATUTES
Labor Management Relations Act,
Section 301, 29 USC Section 185
p. 7, 11-12, 16, 20
Mass. Gen. Laws Ch. 152 Section 75b
p. 16
Sec. 102.23(1)(a), Wis. Stats.
p. 9
Sec. 102.35(3), Wis. Stats.
Sec. 809.62(1), Wis. Stats.
Db. 10-1
-vii-
13
REFERENCE TO OTHER REPORTS OF
_OPINIONS DELIVERED IN THIS CASE
The decision of the State of
Wisconsin Court of Appeals is’ being
published. Universal Foods Corporation
vs. Labor & Industry Review Commission,
Wis. , 467 N.W. 2d 793 (Wis.
App. 1991).
GROUNDS FOR JURISDICTION
The State of Wisconsin Court of
Appeals entered its decision in this
matter on February 12, 1991. A timely
Petition for Review was filed with the
Supreme Court of the State of Wisconsin,
on March 12, 1991. This Petition for
Review was denied on April 30, 1991,
which constitutes entry of the order
denying discretionary review, referred to
in Supreme Court Rule 13.1. This Court
is given jurisdiction over this matter by
-viii-
28 U.S.C. Section 1257.
STATUTES INVOLVED
1. 29 U.S.C. Section 185(a).
Suits for violation of contracts
between an employer and the labor
organization representing employees in an
industry affecting commerce as defined in
this chapter, or between any such labor
organizations, 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.
2. Section 102.35(3), Wis. Stats.
Any employer who without reasonable
cause refuses to rehire an employe who is
injured in the course of employment,
where suitable employment is available
within the employe’s physical and mental
wfgee
limitations, upon order of the department
and in addition to other benefits, has
exclusive liability to pay to the employe
the wages lost during the period of such
refusal, not exceeding one year’s wages.
In determining the availability of
suitable employment the continuance in
business of the employer shall be
considered and any written rules
promulgated by the employer with respect
to seniority or the provisions of any
collective bargaining agreement with
respect to seniority shall govern.
3 Section 102.23, Wis. Stats.
(1) (a).
The findings of fact made by the
commission acting within its powers
shall, in the absence of fraud, be
conclusive. The order or award granting
or denying compensation, either
-xX=-
interlocutory or final, whether judgment
has been rendered on it or not, is
subject to review only as provided in
this section and not under Ch. 227 or S.
801.02. Within 30 days after the date of
an order or award made by the Commission
either originally or after the filing of
a Petition for Review with the Department
under S. 102.18 any party aggrieved
thereby may by serving a complaint as
provided in Par. (b) in filing the
summons and complaint with the Clerk of
the Circuit Court commence, in Circuit
Court, an action against the Commission
for the review of the order or award, in
which action the adverse party shall also
be made a defendant. If the Circuit
Court is satisfied that a party in
interest has been prejudiced because of
an exceptional delay in the receipt of a
-xi-
copy of any finding or order, it may
extend the time in which an action may be
commenced by an additional 30 days. The
proceedings shall be in the Circuit Court
of the county where the plaintiff
resides, except that if the plaintiff is
a state agency, the proceeding shall be
in the Circuit Court of the county where
the defendant resides. The proceedings
may be brought in any Circuit Court if
‘all parties stipulate and that court
agrees.
4. Section 809.62(1).
A party may file with the Supreme
Court a Petition for Review of an adverse
decision of the Court of Appeals pursuant
to s. 801.10 within 30 days of the date
of the decision of the Court of Appeals.
Supreme Court review is a matter of
judicial discretion, not of right, and ,
-xii-
ECE OO a
—-> -~—
. -
will be granted only when special and
important reasons are presented. The
following, while neither controlling nor
fully measuring the Court’s discretion,
indicates criteria that will be
considered:
(a) A real and significant .question
of federal or state constitutional law is
presented.
(b) The petition for review
demonstrates a need for the supreme court
to consider establishing, implementing or
changing a policy within its authority.
(Cc) A decision by the supreme court
will help develop, clarify or harmonize
the law, and
1. The case calls for’ the
application of a new doctrine rather than
merely the application of well-settled
principles to the factual situation; or
-xiii-
2. The question presented is a
novel one, the resolution of which will
have statewide impact; or
3. The question presented is not
factual in nature but rather is a
question of law of the type that is
likely to recur unless resolved by the
supreme court.
(ad) The court of appeals’ decision
is in conflict with controlling opinions
of the United States Supreme Court or the
supreme court or other court of appeals’
decisions.
(e) The court of appeals’ decision
is in accord with opinions of the supreme
court or the court of appeals but due to
the passage of time or changing
circumstances, such opinions are ripe for
reexamination.
-xiv-
I. STATEMENT OF THE CASE
The employee, Barbara Damato, began
working for the employer, Universal Foods
Corporation, in 1983. She worked for
approximately 6 weeks at which time she
was permanently laid off. A-93-94.1 She
was called back to work in October, 1984,
and worked approximately 4 weeks, at
which time she was again issued a notice
of lay-off. On the same date that she
was notified of her lay-off, she reported
that she had a problem with her arm. A-
94. The problem with Ms. Damato’s arm
eventually resulted in elbow surgery. A-
76. She was officially terminated,
effective November 15, 1985, after having
been laid off for a year. A-91, A-97-98.
From May 1, 1985 through April 30,
1988, the employer was subject to a
lwe will cite to the appropriate
pages in the Appendix to this Petition.
collective bargaining agreement with
Brewery Workers, Local 9 UAW, AFL-CIO,
which covered the plant in which the
applicant worked. The pertinent
provisions of that collective bargaining
agreement are as follows:
"3.02: Notice of
permanent job vacancy shall be
posted and the applicant with
greatest seniority shall
receive the job vacancy,
provided he is capable and
qualified to perform the
— work.
Whenever the phrase
‘capable and qualified’ is used
in this Article or elsewhere in
this contract, the individual
employee affected shall be
entitled to a fair trial in
performing the work, accept in
the following cases: . .. (c)
where he has a known handicap
which might prevent him from
performing the job
satisfactorily or safely.
4.02: If further
reductions are necessary in the
department, then regular
employees will be assigned or
laid off in accordance with
their seniority. The employee
with the least seniority will
be assigned or laid off first
and so on in that order,
provided the retained employees
are capable and qualified of
performing the remaining work.
4.03: . . . Employees
hired after May 1, 1969, and
laid off who have more than
-3-
five (5) years seniority shall
forfeit all seniority rights
after thirty-six (36)
consecutive months of lay-off,
and all employees with less
than five (5) years of
seniority shall forfeit all
seniority rights after twelve
(12) consecutive months of lay-
off.
4.05: When work is again
available, employees will be
recalled in the order of
seniority.
16.01: Where a grievance
may arise by reason of an
interpretation of this
Agreement, the parties to this
Agreement shall make all
reasonable efforts to settle
the same between them in the
-4-
foliowing order and procedure:
(Whereupon provisions are set
forth for a grievance and
arbitration procedure) ..."
A-115-124.
There was a dispute between the
employer and the employee as to whether
the employee was up for recall, and a job
available, prior to November 15, 1985,
when the employee would have forfeited
aljJ seniority rights pursuant to Article
4.03 of the collective bargaining
agreement. The employer claimed that
production never increased to the extent
that employees with seniority similar to
Ms. Damato’s were called back to work.
The employer gave examples of employees
who had more seniority than Ms. Damato,
and who lost their seniority at the same
time. A-96-98. According to the
employer, she was terminated, pursuant to
-5-
Article 4.03 of the collective bargaining
agreement. A-97-98.
The employee testified that Bernard
Frederick, the production superintendent
of the employer’s Packaging Department,
called her in October 1985 and asked if
she could come back to work. The
employee allegedly told him about the
cramp she was still having in her arn,
and that she would contact her doctor to
see what he thought. Her doctor
allegedly advised her to give it a try.
When she called Mr. Frederick back, he
allegedly stated, "Never mind, we don’t
need you", and told her to keep in touch
with him. A-77-78.
There was also a dispute between the
employer and the employee as to whether
the employee would have been capable of
performing work at the employer, assuming
it was available. A-83-85, A-88, A-99-
102.
The employee never grieved her
termination. A-81-82.
On February 9, 1988, the employee
filed an Application for Hearing before
the State of Wisconsin Department of
Industry Labor & Human Relations,
claiming an unreasonable refusal to
rehire within the meaning of Section
102.35(3), Wis. Stats. A hearing was
held before an administrative law judge
of that Department on January 23, 1989.
A-72. At chis hearing, counsel for the
employer, Universal Foods Corporation,
objected to the Department’s
Jurisdiction, on the grounds that the
case was preempted by Section 301 of the
Labor Management Relations Act and Lingle
v. Norge Division of Magic Chef, Inc.,
486 U.S. 399, 108 S. Ct. 1877, 100 L.Ed.
-7-
2d 410 (1988). A-74-75. The
administrative law judge indicated that,
until the Department of Industry, Labor
and Human Relations advised him
otherwise, he was obliged to conduct
hearings in these types of cases. A-74-
73. The administrative law judge
dismissed the Application for Hearing on
its merits. Findings of Fact and Order
of Administrative Law Judge Thomas R.
Jones, dated April 21, 1989. A-66-71.
The employee appealed the
administrative law judge’s decision to
the State of Wisconsin Labor & Industry
Review Commission (hereinafter LIRC),
which reversed. Findings of Fact and
Conclusions of Law of LIRC. (hereinafter
"Decision of LIRC") A-53-65. LIRC found
that the employer had unreasonably
refused to rehire the employee within the
meaning of Section 102.35(3), Wis.
- BA
A
Stats., and ordered the payments of money
based upon that finding. A-60-62.
Universal Foods began this action
for judicial review of the Decision of
LIRC in the Circuit Court for Milwaukee
County, pursuant to Section 102.23(1) (a),
Wis. Stats. The issue of whether the
applicant’s claim under 102.35(3), Wis.
Stats., was preempted by Section 301(a)
of LMRA was thoroughly briefed before the
Circuit Court. The Circuit Court, the
Honorable Francis T. Wasielewski
presiding, held that no interpretation of
the collective bargaining agreement was
necessary for LIRC to reach its decision.
Therefore, the employee’s claim under
Section 102.35(3), Wis. Stats., was not
preempted. A-46-48.
The Circuit Court’s decision was
timely appealed to the State of Wisconsin
Court of Appeals. The issue of federal
-9-
—
preemption was thoroughly briefed once
again before the Court of Appeals. The
Court of Appeals indicated that no
interpretation of the collective
bargaining agreement was required for
LIRC to decide this case. Hence, the
employee’s claim under Section 102.35(3),
Wis. Stats., was not preempted. A-13-16.
Aithough initially not recommended
for publication, the publication
committee of the Court of Appeals has
ordered that the opinion be published in
the official reports. A-5-6. It is
presently being published. Universal
Foods Corporation vs. _ LIRC, Wis.
___, 467 N.W. 793 (Wis. App. 1991).
Universal Foods timely filed a
Petition for Review to the Supreme Court
of the State of Wisconsin. In Wisconsin,
Supreme Court review is a matter of
judicial discretion. Section 809.62(1),
-10-
Wis. Stats. The preemption issue was
fully explored in the Petition for
Review. A-125-157. On April 30, 1991,
the Supreme Court of Wisconsin denied the
Petition for Review. Order of Supreme
Court, State of Wisconsin, dated April
30, 1991. A-1-2.
II. ARGUMENT
A. THE WISCONSIN DECISION DIRECTLY
CONFLICTS WITH SUPREME COURT AND FEDERAL
APPELLATE PRECEDENT.
The published decision of the
Wisconsin Court is in conflict with Allis
Chalmers vs. Lueck, 471 U.S. 202, 105 S.
ct. 1904, 85 L. Ed. 2d 206 (1985) and
Lingle vs. Norge Division of Magic Chef,
Inc., 486 U.S. 399, 108 S. Ct. 1877, 100
L. Ed. 2d 410 (1988). Under Lueck and
Lingle, a state cause of action is
preempted by Section 301 of the Labor
Management Relations’ Act, 29 U.S.C.
-ll-
Section 185, if its resolution requires
an analysis, consideration or
interpretation of a collective bargaining
agreement. Lueck, supra, 47 U.S. at 213,
220; Lingle, supra, 486 U.S. at 418-9,
422.
The Wisconsin statute involved in
this case specifically indicates that the
provisions of a collective bargaining
agreement shall govern:
"In determining the
availability of suitable
employment .. . any written
rules promulgated by the
employer with respect to
seniority or the provisions of
any collective bargaining
agreement with respect to
seniority shall govern."
Section 102.35(3), Wis. Stats.
-12-
In this case, the employer
specifically tried to prove that there
was no suitable work available to the
employee under the terms of the
collective bargaining agreement. A-93-
106. Under the terms of the statute,
LIRC was required to analyze and consider
the terms of the collective bargaining
agreement in coming to its decision as to
whether there was an unreasonable refusal
to rehire. Section 102.35(3), Wis.
Stats.
The language used by LIRC in its
written decision, makes clear that it did
analyze and consider the agreement:
"The Commission majority
concludes that a job was
available and that the
applicant was up for recall
under the union contract
procedure... .
The Commission, however,
has ruled that the employer
unreasonably refused to rehire
the applicant during the
contract recall period. The
employer has not shown that
today the applicant would not
be entitled under the union
contract to the work which she
can perform if the employer had
not refused to rehire her in
October of 1985."
A-56-57, A-60-61.
LIRC made specific findings with
respect to the employee’s rights under
the collective bargaining agreement. It
would have been open to further evidence
concerning what the employee’s' rights
would have been, had she been rehired.
The parties were litigating, and LIRC was
deciding, the employee’s rights under the
-14-
collective bargaining agreement. This is
specifically prohibited by the preemption
doctrine of Lueck and Lingle.
The Wisconsin court held that no
interpretation of the collective
bargaining agreement was necessary for
LIRC to decide this case. A-13-16.
This decision is in direct conflict
with Magerer vs. John Sexton & Company,
912 F. 2d 525 (list Cir. 1990). Magerer
involved a Massachusetts statute which
was worded very similar to the Wisconsin
statute:
"(3) In the event that any
right set forth in this section
is inconsistent with an
applicable collective
bargaining agreement, such
agreement shail prevail."
-15-
Mass. Gen. Laws Ch. 152 Section
75b; Magerer, 912 F. 2d at 527
fn. 1.
In finding that the cause of action
under the Massachusetts statute was
preempted, the lst Circuit distinguished
the Illinois statute upheld in Lingle.
Claims under the Massachusetts statute,
by its express terms, were subject to the
terms of any applicable collective
bargaining agreement. To the extent that
the collective bargaining agreement
governed the conduct underlying’ the
plaintiff’s clain, the claim would
require interpretation of the collective
bargaining agreement, and therefore, was
preempted by Section 301. Magerer, 912
F. 2d at 529. This same logic applies to
the Wisconsin statute. It also, by its
express terms, indicates that the
-16-
provisions of the collective bargaining
agreement shall govern.
Where the resolution of a state law
claim is substantially dependent upon an
analysis, or is inextricably intertwined
with consideration of the terms of the
collective bargaining agreement, the
claim is preempted. Allis Chalmers vs.
eer, 473 U.S. at 213, 220. In this
case, LIRC had to find that the employee
was up for recall under the collective
bargaining agreement, before it could
find an unreasonable refusal to rehire.
There was no other way to decide the case
under the terms of the Wisconsin statute.
Hence, the evaluation of the claim was
substantially dependent upon and
inextricably intertwined with a
consideration of the terms of the
collective bargaining agreement.
-l17-
Lueck also specified that state law
rights and obligations that can be waived
or altered by agreement of the private
parties are preempted by those
agreements. 471 U.S. at 213. In this
case, the length of time that employees
may retain seniority rights while on lay-
off, and the order upon which employees
are to be recalled after lay-off, are
terms which may be waived or altered by
agreement of the private parties
involved. A-116-120; Articles 4.02, 4.03
and 4.05. The employee’s claim under
Section 102.35(3), Wis. Stats., depends
upon these terms of the collective
bargaining agreement. Hence, it is
preempted.
Under the Wisconsin statute, the
ultimate finding which LIRC is called
upon to make is whether the employer’s
action in refusing to rehire the employee
-18-
XE
was "reasonable". Section 102.35(3),
Wis. Stats. "Reasonableness" requires
that everything be taken into account.
Where the reasonabieness of an employer’s
conduct vis-a-vis an employee is at
issue, it necessarily requires an
analysis of the terms of the collective
bargaining agreement. Such actions are
preempted. Stikes vs. Chevron USA, Inc.,
914 F. 2d 1265, 1269-1270 (9th Cir.
1990); Jackson vs. Liquid Carbonic Corp.,
863 F. 2d 111, 119 (ist Cir. 1988);
Miller vs. AT & T Network Systems, 850 F.
2d 543, 550-1 (9th Cir. 1988); Kirby vs.
Alleghany Beverage Corp., 811 F. 2d 253,
255-6 (4th Cir. 1987).
It is difficult to determine how the
Wisconsin Court came to the conclusion
that no interpretation of the collective
bargaining agreement was required to
decide the dispute in this case. The
-i19-
full analysis of the Wisconsin Court is
contained in a single paragraph, which is
somewhat conclusory. A-15-16. It relies
upon language from Lingle, which
specifies that a state law claim is
preempted by Section 301 of LMRA, only if
such application requires the
interpretation of a collective bargaining
agreement. Lingle, supra, 486 U.S. at
413. It concludes that, because no
interpretation was required here, there
is no preemption. A-16.
It is a polite deception to say that
no interpretation of the collective
bargaining agreement was necessary to
decide this case. LIRC was required to
make a series of findings about the
collective bargaining agreement to come
to its decision. It explicitly found
that the employee had enough seniority
under the collective bargaining agreement
-20-
to be recalled vis-a-vis other employees.
A-56-57; A-119-120, Article 4.05. It
found that Article 4.03 gave the
applicant a one-year recall period,
during which she would not forfeit her
seniority rights. It held that this
pe, icd did not expire until November 15,
1985. A-56-67, A-60-61, A-118-119,
Article 4.03. It found that’ the
applicant was "capable and qualified" to
perform the work within the meaning of
Article a A-59-60, A-115-116,
Article 3.02.
In order to make these findings,
LIRC had to define the terms of the
collective bargaining agreement. By
defining these terms, LIRC was invading
the field of federal labor law. If every
state court and administrative agency was
free to define collective bargaining
agreements, it would lead to an erosion
-21-
of the federal labor law principles
promoting the uniform interpretation of
collective bargaining agreements. Lueck,
471 U.S. at 210.
In the recent decision of Litton
Financial Printing Division vs. NLRB, No.
90-285, __—Ssp U.S. __, 111 S. Ct. 2215,
L.Ed. 2d. _ — (Decided June 13,
1991), this Court refused to defer to the
NLRB’s interpretation of a collective
bargaining agreement, since it would risk
the development of conflicting
principles. (p. 8 on Westlaw) What is
true for the NLRB is particularly true of
state agencies and courts. To allow
agencies and courts from fifty states to
define collective bargaining agreement
terms would create chaos in the field of
federal labor law.
The Federal Courts of Appeals have
held that state law causes of action are
-22-
preempted under Section 301(a) of LMRA if
the state law claim - requires
scrutinizing, evaluating, studying,
taking account of, referring to,
considering, or analyzing a collective
bargaining agreement. Johnson vs.
Beatrice Foods Company, 921 F. 2d 1015,
1020 (10th Cir. 1990); Harris vs. Aluma~x
Mill Products, Inc., 897 F. 2d 400, 403
(9th Cir. 1990); Sluder vs. United Mine
Workers of America, 892 F. 2d 549, 554-6
[vom « Cie. 1989); Jackson vs. Liquid
Carbonic Corporation, 863 F. 2d 111, 118-
121 (lst Cir. 1988); Hanks vs. General
Motors Corporation, 859 F. 2d 67, 69 (8th
Cir. 1988). LIRC did all of these. This
case law would suggest that the meaning
of "interpretation" as used by this court
in Lingle, 486 U.S. at 411, is much
broader than the narrow reading given by
the Wisconsin Court.
-23-
Since the Wisconsin Court’s decision
is being published, Universal Foods
orpo lon _vs. s, . Wie... ,
467 N.W. 2d 793 (Wis. App. 1991), the
analysis of the Wisconsin Court will be
the law in Wisconsin, unless certiorari
is granted in this case. In Wisconsin,
claims under Section 102.35(3), Wis.
Stats., will continue to be governed by
the terms of collective bargaining
agreements, and state agencies will
continue to analyze and consider the
terms of collective bargaining agreements
in deciding these claims. Wisconsin law
will be at variance with federal
preemption doctrine, as set forth in
Lueck and Lingle, and as_ specifically
applied by the lst Circuit in Magerer vs.
John Sexton & Company, 912 F. 2d 525 (1st
Cir. 1990). In order to avoid this
situation, the petitioner, Universal
-24-
Foods, respectfully requests that
certiorari be granted in this matter, and
that the Decision of the Court of Appeals
in Wisconsin be reversed.
lil. CONCLUSION
For the foregoing reasons, the
petitioner, Universal Foods, respectfully
requests that the Court grant a writ of
certiorari to the Supreme Court of
Wisconsin, and reverse the Decision of
the Court of Appeals of Wisconsin.
Respectfully submitted:
Counsel of Record
for Plaintiff-Petitioner,
Universal Foods Corporation
DANIEL J. STANGLE
OTJEN, VAN ERT, STANGLE,
LIEB & WEIR, S.C.
Other counsel:
THOMAS M. ROHE
OTJEN, VAN ERT, STANGLE,
LIEB & WEIR, S.C.
-25-
APPENDIX
1. Order of Supreme
Court of the State
f Wisconsin
denying Petition
for Review, dated
April 30, 1991
Remittitur Order of
Court of Appeals,
dated May 1, 199]
Publication Order of
Wisconsin Court of
Appeals, dated
April 9, 1991
4. Acknowledgment of
Supreme Court of
Wisconsin of receipt
of Petition for
Review, dated
March 12, 1991
Decision of the Cour
of Appeals of
Wisconsin, dated
February 12, 1991
6. Judgment of
Milwaukee County
Circuit Court,
dated July 25, 199
A-i
Page
an
7. Memorandum Decision
of Milwaukee
County Circuit
Court, dated
July 10, 1990 > © « «© « AWS
¥ 75 “cy + } .+
naiine I I | ‘ ,
, ‘
i ‘ A ii A h wv
and Order of State
1f Wisconsin Labor
& Industry Review
. "yy ; em e c
COMMISSion . ° ; ; :, : ; aS
} ; indin ¥< f } +
‘ se | AAG > | A |
‘
ind Order
a | 7
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AU Lil. Lat te
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I
} aie a a -
iif iJ Lng . . . Aen sa
’ Lleé + ‘ ' Ra rr +h? 1
i . \ ; LIV é ele e' s,Q L111 1 ;
_ . Tr . /
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Agreement, Re 3! nd¢
y A : ’
‘ ,
Exhibit 5, Article
/ A . 4
»e UZ, GS.eVa, te ' P
; A t
4.05 and 6.0] , ss BOW Lio
er : ‘
Petition for Review
cy ’ > ,
to Supreme Cou: |
} \¥ , , cy
WJ \ ii Rahy i" 4, ¢
> "
‘ ; > . . . yy ~~ -& ;
»
Office of the Clerk
SUPREME COURT
STATE OF WISCONSIN
Madison, April 30, 1991
To Hon. Francis Wasielewski
Milwaukee County Circuit Court
901 N. 9th St., Rm. 414
Milwaukee, WI 53233
James A. Beaudry
Beaudry & Beaudry
P. O. Box 311
Hales Corners, WI 53130-0311
Daniel J. Stangle
Thomas M. Rohe
Otjen, Van Ert, Stangle,
Lieb & Weir, S.C.
700 N. Water St., #800
Milwaukee, WI 53202
Lowell E. Nass
Asst. Attorney General
P.O. Box 7857
Madison, WI 53707-7857
The Court today announced an order in
your case as follows:
No. 90-1734 Universal Foods Corp. v.
LIRC and Damato L.C.#89CV014059
A petition for review pursuant
to sec. 808.10, Stats., having been filed
on behalf of plaintiff-appellant-
A-1
ttre! Militia
COURT OF APPEALS
OF WISCONSIN
P. O. BOX 1688
MADISON, WI 53701-1688
DISTRICT 1
REMITTITUR
UNIVERSAL FOODS CORPORATION,
PLAINTIFF-APPELLANT,
APPEAL NO. 90-1734
V.
T. Ct. NO. 89-CV-014059
LABOR & INDUSTRY REVIEW COMMISSION,
and BARBARA DAMATO,
DEFENDANTS~-RESPONDENTS.
THIS CAUSE WAS AN APPEAL TO REVIEW
THE JUDGMENT OF THE CIRCUIT COURT OF
MILWAUKEE COUNTY. UPON CONSIDERATION, IT
IS ORDERED AND ADJUDGED BY AN OPINION
FILED ON FEBRUARY 12, 1991, THAT:
JUDGMENT AFFIRMED.
MTS Wrote Decision/Opinion
RAF Wrote Dissenting Opinion
PANEL: HON. MICHAEL T SULLIVAN
HON. WILLIAM R MOSER
HON. RALPH ADAM FINE
—V——
THE APPEAL RECORD IS HEREBY RETURNED
TO THE CLERK OF CIRCUIT COURT FOR
MILWAUKEE COUNTY.
1 CERTIFY THAT THE ABOVE
IS A CORRECT TRANSCRIPT OF
THE ORIGINAL ORDER AND
JUDGMENT OF THE COURT IN
THE ABOVE-ENTITLED CAUSE.
DATED: MAY 01, 1991.
/S/MLG
MARILYN L. GRAVES
CLERK, COURT OF APPEALS
DISTRICT I
Office of the Clerk
COURT OF APPEALS
231 E. STATE CAPITOL
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
TELEPHONE 608-266-1880
APRIL 9, 1991
To:
JAMES A. BEAUDRY
BEAUDRY & BEAUDRY
Pe Oe BOA Jae
HALES CORNERS, WI 53130-0311
DANIEL J. STANGLE
THOMAS M. ROHE
OTJEN, VAN ERT, STANGLE,
LIEB & WEIR, S.C.
700 N. WATER STREET
SUITE 800
MILWAUKEE, WI 53202-4206
LOWELL E. NASS
ASSISTANT ATTORNEY GENERAL
You are hereby notified that the Court
has entered the following order:
#90-1734 UNIVERSAL FOODS
CORPORATION v. LIRC & BARBARA DAMATO
wa
BEFORE EICH, CHM., FINE, ANDERSON,
LAROCQUE AND SUNDBY, JJ., PUBLICATION
COMMITTEE.
THE COURT HAVING FILED ITS OPINION
IN THE ABOVE-ENTITLED APPEAL AND THE
COURT HAVING CONCLUDED PURSUANT TO RULE
809.23 THAT THE OPINION SHOULD BE
PUBLISHED,
IT IS ORDERED THAT THE OPINION IN
THE ABOVE-ENTITLED APPEAL BE PUBLISHED IN
THE OFFICIAL REPORTS.
Marilyn L. Graves
Clerk of Court of Appeals
SUPREME COURT
OF WISCONSIN
P, O. BOX 1688
MADISON, WI 53701-1688
TELEPHONE (608) 266-1880
MARILYN L. GRAVES
CLERK
MARCH 12, 1991
TO: THOMAS M ROHE
OTJEN, VAN ERT, STANGLE,
LIEB & WEIR, S.C.
700 N. WATER ST., STE 800
MILWAUKEE, WI 53202-4206
RE: DISTRICT I
UNIVERSAL FOODS v. LIRC,
90 1734
(Opinion 2/12/91)
DEAR THOMAS M ROHE
THIS WILL ACKNOWLEDGE RECEIPT
OF THE PETITION FOR REVIEW WHICH HAS BEEN
FILED IN THE ABOVE MATTER PURSUANT TO
SEC. 8908.10, STATS. AND RULE 809.62 OF
THE RULES OF APPELLATE PROCEDURE. PLEASE
NOTE THAT THE CASE NUMBER AND THE
DESIGNATIONS OF THE PARTIES WILL REMAIN
IDENTICAL IN THE SUPREME COURT TO THE
A-7
DESIGNATIONS IN THE COURT OF APPEALS,
OTHER THAN THE PARTY FILING THE\PETITION
FOR REVIEW SHOULD ADD PETITIONER TO THE
PREVIOUS DESIGNATION. IF THE PETITION FOR
REVIEW IS GRANTED AND ADDITIONAL BRIEFS
ARE REQUIRED, THF BRIEFS WILL BE FILED
PURSUANT TO RULE 809.19 [9] AND WILL
THEREFORE HAVE THE SAME COLOR COVERS AS
THE BRIEFS WHICH THE PARTIES FILED WITH
THE COURT OF APPEALS.
BECAUSE THE COURT OF APPEALS
MAY ON ITS OWN MOTION RECONSIDER ITS
DECISION WITHIN 30 DAYS OF THE FILING OF
A PETITION FOR REVIEW, WE WILL BE
FURNISHING THE COURT OF APPEALS WITH A
COPY OF YOUR PETITION FOR REVIEW.
IF YOU HAVE ANY £QUESTIONS
REGARDING PROCEDURES ON THE PETITION FOR
REVIEW, PLEASE DO NOT HESITATE TO CONTACT
THIS OFFICE.
oe
YOURS VERY TRULY,
(signed)
MARILYN L. GRAVES
CLERK OF SUPREME COURT
PRESIDING JUDGE, COURT OF APPEALS,
DIST. 1
DANIEL J STANGLE
LOWELL E NASS
JAMES A BEAUDRY
a wy Sr cana
COURT OF APPEALS
DECISION
DATED AND RELEASED
February 12, 1991
No. 90-1734
STATE OF WISCONSIN
IN COURT OF APPEALS
DISTRICT I
UNIVERSAL FOODS CORPORATION,
Plaintiff-Appellant,
Vv.
LABOR & INDUSTRY REVIEW COMMISSION,
and BARBARA DAMATO,
Defendants-Respondents.
APPEAL from a judgment of the
circuit court for Milwaukee county:
FRANCIS T. WASIELEWSKI, Judge. Affirmed.
Before Moser, P.J., Sullivan
and Fine, JJ.
SULLIVAN, J. This is an appeal
from a worker’s compensation = award.
A-10
Barbara Damato began working for the
Universal Foods Corporation in 1983. Her
pay, seniority, and conditions of
employment were covered by a union labor
agreement. Damato operated a packaging
machine that required repetitive motions.
Due to the repetitive motions, she
suffered a compensable injury to her left
wrist on November 15, 1984, for which she
received worker’s compensation and
disability payments. Also on November 15,
1984, she was laid off due to lack of
work, as waS appropriate for her
seniority status under the union
contract. Her accumulated seniority
amounted to just under one year due to
other previous layoffs. The circuit court
affirmed an order of the co-defendant,
Labor _and Industry Review Commission
(LIRC), which reversed the administrative
law judge’s findings and dismissal order.
A-il
LIRC found, and the circuit court agreed,
that Universal Foods Corporation was
unreasonable in refusing to rehire Damato
and liable to her for payment of lost
wages pursuant to sec. 102.35(3), Stats.
We affirm.
Universal asserts three issues
On appeal: (1) whether sec. 301 of the
Labor Management Relations Act, 29 U.S.C.
sec. 185 preempted LIRC from interpreting
the collective bargaining agreement; (2)
whether LIRC’s findings are supported by
sufficient evidence; and, (3) whether
Universal was deprived of due process
because of the lack of adequate notice as
to the unreasonable refusal to rehire
claim.
The appellate court’s review of
agency decisions is identical to the
circuit court. West Bend Co. v. LIRC,
149 Wis. 2d 110, 117, 438 N.W. 2d 823,
A-12
>
<
Matter
evie
red
w
r
.
vw
vv
vv
vw
The
seniority or the provisions of
any collective bargaining
agreement with respect to
seniority shall govern.
applicable provision of the
collective bargaining agreement states:
Damato had just under one year seniority
at the time of layoff; therefore, she
forfeited "seniority rights after 12
4.03: . ; ; Employees
hired after May 1, 1969, and
laid off who have more than
five (5) years of seniority
shall forfeit all seniority
rights after 36 consecutive
months of layoff, and all
employees with less than five
(5) years of seniority shall
forfeit all seniority rights
after twelve (12) consecutive
months of layoff.
A-15
t
4
~
C
Cc
—
Ai
rs
i
ry
ecessa
r
|
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Ce
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>
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+
suf
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A
vic
is sufficient. West Bend, 149 Wis. 2d at
117-18, 438 N.W. 2d at 827. Even if
contrary to the great weight and clear
preponderance of the evidence, the
findings will be upheld. Id. at 118, 438
N.W. 2d at 827.
To establish an_-— employer’s
liability under sec. 102.35(3), Stats.,
the employee has the burden of showing:
(1) that she was an employee; (2) that
she sustained a compensable injury; (3)
that she applied for rehire; and, (4)
that the employer refused to rehire her
because of the injury. West Bend, 149
Wis. 2d at 126, 438 N.W. 2d at 830-31.
The burden then shifts to the employer to
show a reasonable refusal to rehire. Id.
at 123, 438 N.W. 2d at 829. In order to
meet this burden, the employer must show:
(1) that the employee could not do the
work she applied for; and (2) that no
A-17
| ale es a On:
other suitable work was available. Id. at
126, 438 N.W. 2d at 831. Medical proof
that an employee is unable to perform a
job is necessary for the employer to
sustain its burden. Id. at 126, 438 N.W.
2d at 830 . The second element need not
be reached if the employer fails to
establish, with medical evidence, the
first element. See id. at 126, 438 N.W.
aa at $31.
The first two factors of
Damato’s prima facie case were not
disputed. LIRC found the third and fourth
factors were sufficiently established by
the testimony in the record.
It is the function of the
commission, not the reviewing
courts, to determine the
credibility of witnesses, and
it is for the commission to
weigh conflicting testimony and
A-18
decide who should be believed.
Section 102.23(6), Stats. We
are bound to accept the
findings of the commission
unless the evidence was
insufficient or incredible as a
matter of law.
Link. Indus., Inc. v. LIRC, 141 Wis. 2d
551, 558, 415 W.W. 2c S74, S77 (Ct. App.
1987). LIRC’s determination that the
employer’s representative, Mr. Frederick,
called Damato about a job in October 1985
was not incredible as a matter of law.
Damato was released and available for the
work as of July 1985. Just to be sure she
cleared the work available in October
with her doctor. However, as found by
LIRC, Mr. Frederick "blocked her
opportunity to show her ability to
perform the offered work." LIRC_ then
appropriately examined whether the
A=-19
:
employer met the shifted burden of the
other two factors. LIRC found no
persuasive answer in the record why Mr.
Frederick would call Damato to see if she
waS available to take a job if someone
with her seniority was not up for recall.
A job was found to be available and
Universal presented no medical proof that
Damato was unable to perform this job.
Universal did not meet its burden. These
findings are not insufficient or
incredible as a matter of law. Just as
the circuit court correctly "confirmed"
LIRC’s order, we do the same and uphold
the factual determinations of LIRC.
Finally, Universal claims that
it did not receive adequate notice of the
phone call in October 1985 which was the
basis for the unreasonable refusal to
rehire claim. Therefore, Universal
asserts that it was deprived of due
A-20
process. Supposedly, Universal was
surprised by Damato’s testimony taken
before the administrative law judge about
the October phone conversation with Mr.
Frederick which evidenced Universal’s
unreasonable refusal to rehire. However,
at the hearing, after Damato’s "surprise
testimony," Darrell Foeii, Universal’s
director of labor relations, testified as
follows:
Q. [Attorney Beaudry,
Damato’s counsel, on cross-
examination]: Now, you were
present in this hearing when my
client testified that Mr.
Frederick called her in October
of 1985 to come back to work?
A. [Darrell Foell]: Yes.
Q. Do you have any reason
to dispute her testimony?
A. Yeah, I do.
A-21
Q. What is your reason?
A. Well, when I heard it
from Ms. Damato before, I
called Mr. Frederick and asked
him, and he said he never
called her back.
Q. Now, Mr. Frederick is
available to testify here
today; isn’t he?
A. I have no idea; he’s a
retiree.
If Mr. Foell, director of labor
relations for Universal, knew about
Damato’s testimony early enough to call
Mr. Frederick and ask him what happened,
it could only have been Universal’s
choice not to present Mr. Frederick on
rebuttal. In addition, there was timely
notice of the hearing. The notice of
hearing, received by Universal, as well
as their counsel, indicated that the
A-22
"issue to be heard" was the "refusal to
rehire 102.35(3)." Universal had actual
notice of this issue. Their voluntarily
inadequate or limited presentation to the
tribunal does not amount to denial of due
process . See, e.g., Riemer v. Riemer, 85
Wis. 2d 375, 377-78, 270 N.W. 2d 93, 95
(Ct. App. 1978).
7 LIRC’s findings and
conclusions, properly based on state law,
sec. 102.35(3), Stats., are affirmed.
By the Court. -- Judgment
affirmed.
Not recommended for publication
in the official reports.
No. 90-1734
FINE, J. (dissenting). This is a
state-law claim brought under. section
102.35(3), Stats. Section 102.35(3)
imposes liability on an employer who,
"without reasonable cause[,] refuses to
rehire an employe [sic] who is injured in
the course of employment," provided it is
determined that "suitable employment is
available" for that employee. Section
102.35(3) also requires that eri in
determining the availability of suitable
employment ... the provisions of any
collective bargaining agreement with
respect to seniority shall govern."
Pursuant to this command, the Labor anc
Industry Review Commission applied the
collective bargaining agreement between
Universal Foods Corporation and the union
representing Barbara Damato in order to
ascertain her rights under that agreement
A-24
and thus whether Universal Foods
unlawfully refused to rehire her. The
Commission determined from the collective
bargaining agreement her accumulated
seniority at the time of her injury and
concluded that she had a one-year recall
period. State-law claims between
employees and employers that require the
application of collective bargaining
agreements are pre-empted by section
301(a) of the Labor Management Relations
Act of 1947, 29 U.S.C. sec. 185(a). I
respectfully dissent from the majority’s
conclusion to the contrary.1
lwe must reverse if Damato’s state-law
claim against Universal Foods is
pre-empted by section 301(a) of the Labor
Management Relations Act. Accordingly, I
do not discuss the other issues raised by
Universal Foods on this appeal.
A-25
Section 301(a) 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
Although suits within the ambit of
section 301(a) may also be brought in
state court, Charles Dowd Box Co. v.
Courtney, 368 U.S. 502 (1962), section
301(a) pre-empts the application of state
law "if such application requires the
interpretation of a collective-bargaining
A-26
agX t," Lingle v
agreement, single v.
M c ‘ Chef T ~ ARE
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pre-empted by
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—~ rhe a ba wal 4 +
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he test of pre-emption
collective bargaining
yuous and thus requires
but, rather, whether
e state remedy requires
Thy + —_ v7 - A> +
hus, 3 State-law tort
= + + on
, in employee for the
+ " } } ; . “ ‘
11th handling > f 1
S union. Allis-Chalmers
471 U.S. 202, 216-218
Lueck v. Aetna Life
» 24 559, 342 N.W. 2d
which specifically
ot onl T 9 - oo. aa | .
lmers, Lingle, 486 U.S.
at 405-406, reaffirms that section 301(a)
prevents the states from applying their
"individualized local rules when called
upon to enforce" collective bargaining
agreements, id., 486 U. S . at 404 n. 3,
and that "‘the pre-emptive force of sec.
301 is so powerful as to displace
entirely any state cause of action ‘for
violation of contracts between an
employer and a labor organization,’’"
id., 486 U.S. at 406 n. 5 (quoting
Franchise Tax _ Bd. of California vv.
Construction Laborers Vacation Trust for
Southern California, 463 U.S. 1, 23
(1983) (quoting section 301(a)). Thus,
and with specific relevance here, a
state~law claim is pre-empted by section
301(a) when resolution of that claim "is
substantially dependent upon analysis of
the terms of an agreement made between
the parties." Allis-Chalmers, 471 U.S. at
A-29
220. Stated another way, a state-law
claim with respect to rights within the
rh
ey
ambit fe) collective bargaini
Beatrice Foods Co., 921 F.
1015, _—————, ~ 1990 WESTLAW 197766 at 18-
(LOtThH Cir. 1990) interpreting Lingle
Justice Donald W. Steinmetz’s dissent
Lueck 1S instructive:
Because any duty allegedly
Violated by Allis-Chalmers in
the present case was
Specifically sreated by the
labor contract, and would not
ov sco oOr TT, . a n+ _ +
exist absent such contract, it
miliat 17 writ ; } - , + r
must fall within the ambit of
sec. 30] of the Labor
\
‘yy
|
>)
ng
Management Relations Act
(LMRA), which governs’ labor
agreements. Without the
existence of the labor contract
conferring disability benefits
upon union members, there can
be no action in this case on a
failure to pay such benefits. A
finding of bad faith will
necessarily be premised on a
finding that a labor agreement,
governed by federal law, has
been violated. To do as the
majority holds fragments
deferral labor law.
116 Wis. 2d at 578, 342 N.W. 2d at 708
(emphasis in original). Similarly, here,
the determination of whether "suitable
employment," as that term is defined by
section 102.35(3), was available for
Damato requires an analysis and
} Naa
application of the seniority rules in the
collective bargaining agreement; there
can be no finding that Universal Foods
has violated section 102.35(3) without
reference to that agreement. Since
Damato’s claim under section 102.35(3) in
effect seeks to enforce the seniority
provisions of the collective bargaining
agreement, and since the claim’s
resolution is dependent upon the terms of
that agreement, the claim is pre-empted
by federal law. I would reverse.
STATE OF WISCONSIN
CIRCUIT COURT
MILWAUKEE COUNTY
UNIVERSAL FOODS CORPORATION,
Plaintiff,
JUDGMENT
Case No. 89-CV-014059
LABOR AND INDUSTRY REVIEW COMMISSION
and BARBARA DAMATO,
Defendants.
The above action having come on for
hearing before the Court, Universal Foods
Corporation, plaintiff, appearing by
Thomas M. Rohe, Barbara Damato,
defendant, appearing by James A. Beaudry,
and the Labor-~ and Industry Review
Commission, defendant, appearing by
Donald J. Hanaway, Attorney General, by
Lowell EB. Nass, Assistant Attorney
General; and the Court having considered
the matter upon the record and written
arguments of counsel, and having on the
Awd
10th day of July, 1990, rendered its
written decision,
IT IS ORDERED AND ADJUDGED that the
order of the Labor and Industry Review
Commission, dated October 3, 1989, be,
and same hereby is, in all respects
confirmed.
Dated at Milwaukee, Wisconsin, this
25th day of July, 1990.
BY THE COURT:
(signed)
FRANCIS T. WASIELEWSKI
Circuit Judge, Branch 17
STATE OF WISCONSIN
CIRCUIT COURT
MILWAUKEE COUNTY
UNIVERSAL FOODS CORPORATION,
Plaintiff,
vs. Case No. 89-CV-014-059
LABOR AND INDUSTRY REVIEW
COMMISSION AND BARBA®A DAMATO,
Defendants.
MEMORANDUM DECISION
Nature of Proceedings
This is an action for judicial
review, under sec. 102.23, Wis. Stats.,
of a workman’s compensation order of the
defendant, Labor and Industry Review
Commission (hereinafter "LIRC") dated
October 3, 1989, determining that the
plaintiff, Universal Foods Corporation
(hereinafter "Universal"), is liable to
the defendant, Barbara Damato
(hereinafter "Damato"), for the payment
A~35
of lost wages pursuant to sec. 102.35(3),
Stats., and awarding Damato a certain sum
as compensation for such lost wages. In
so acting, the LIRC reversed the findings
and dismissal order of the administrative
law judge, (hereinafter "ALJ") dated
April 21, 1989.
ISSUES
The court finds that the issues in
contention between the parties have been
properly defined by the LIRC, and
therefore adopts the LIRC’s statement of
the issues, as its own, as follows:
1) Is there credible and substantial
evidence to support the Commission’s
(LIRC) findings that the employer refused
to rehire the claimant (Damato) without
reasonable cause in violation of sec.
102.35(3), Stats.?
2) Is the claim under sec. 102 .35(3),
Stats., pre-empted by sec. 301(a) of the
A-36
Labor Management Relations Act where no
interpretation of the collective
bargaining agreement was required?
Applicable Statute
Section 102.35(3), Stats., provides:
Any employer who without
reasonable cause refuses to
rehire an employe who is
injured in the course of
employment, where suitable
employment is available within
the employe’s physical and
mental limitations, upon order
of the department and in
addition to other benefits, has
exclusive liability to pay the
employe the wages lost during
the period of such refusal, not
exceeding one year’s wages. In
determining the availability of
suitable employment the
A-37
continuance in business of the
employer shall be considered
and any written rules
promulgated by the employer
with respect to seniority or
the provisions of any
collective bargaining agreement
with respect to seniority shall
govern.
Factual Background
The Court adopts the factual
background, of Damato’s work history with
Universal, from the October 3, 1989
decision of the LIRC, as follows:
"The applicant (Damato)
began workiig for the employer
(Universal) in 1983. She
operated a packaging machine
and did repetitive work. Her
pay, seniority and conditions
of work were covered under a
A-38
union labor
suffered a
agreement.
(left wrist carpal
an injury
1984.
she received
date
Prior to
compensable
tunnel)
inj
4. Aik
compensation payment for t
injury and result
disability. On vember
1984, she was laid ff due
.,
lack of WOrK as
appropriate under the un
contrac for worker with
seniority. The employer
not rehired her. The issue
be resolved is whether
employer unreasonably refu
- cr r<¢ a en oe a Qa Y cri eh —
= s . 4 - Wiwesiddbl
meaning f section 102.35(3)
the Statutes. .
ct
a
Y
O
In October of 1985, the
employer’s representative, Mr.
Frederick, called the applicant
about a job which required
lifting of 25 pounds. This was
within the applicant’s one-year
union contract recall period,
which did not expire until
N > = Qe WW
November 15, 1985.
Frederick that she would check with her
doctor and call him back. That same day,
after receiving the approval of her
doctor to return to work, she called
Frederick back to accept his offer of
employment. However, Frederick said in
reply that Universal di not need her
anymore.
Standard of Review
In reviewing the decision of the
LIRC, this Court is bound by statute to
uphold the factual findings of the LIRC
if they are supported by substantial and
credible evidence. Section 102.23 Wis.
Stats. If there is relevant, credible
and probative evidence upon which a
reasonable person could rely upon to
reach the conclusion made the LIRC, the
LIRC’s findings must be upheld. Princess
House Inc. v. DILHR, 111 Wis. 2d 46, 54
(1983). The LIRC’s determinations on
issues of law are not binding on this
Court, however, case law requires that
legal determinations of the LIRC be
upheld if the Court finds that such
determinations are reasonable. Jenks v.
Wisconsin Department of Industry Labor
and Human Relations, 107 Wis. 2d 714 (Ct.
App. 1982).
Decisio
- The first issue is whether the LIRC’s
findings are supported by substantial and
credible evidence. Before the LIRC, the
plaintiff, Damato bore the burden of
establishing a prima facie case DY
=
my
meeting the requirements of a four prong
+
‘el
=]
=
test: (J a statutory
employee at the time of her injury; (2)
that she suffered a compensable injury;
(3) that she was able to return to work;
her without reasonable 1use.
Whether Universal was guilty of an
unreasonable refusal to rehire Damato,
pursuant to sec. 102.35(3), Stats., was a
question of fact the LIRC to decide.
Link Industries Inc. v. LIRC, 141 Wis. 2d
>] ’ 558 qa App. 198 / } . That the rArSseu
and second elements of Damato’s prima
facie case were established before the
LIRC 1s not disputed.
A-42
The LIRC found that the third factor
was established by the "medical opinions
of Dr. Zupnik and Dr. Wartinbee, dated
June and July of 1985, respectively,
that the applicant could perform the
offered work." (LIRC 10/3/89 decision, at
3.) The LIRC found the fourth factor was
established by the testimony of Damato.
Based on her testimony that Frederick had
called to offer her her job back, while
she was still within the union contract’s
recall period, the LIRC concluded "that a
job was available and that the applicant
was up for recall under the_- union
contract procedure. Otherwise, the
conversation With Mr. Frederick would not
have occurred." (Id. at 2.)
Thus, the LIRC determined that
Damato had established her prima facie
case. The burden then shifted to
Universal to show some reasonable cause
A-43
for its refusal to rehire her. This
Universal did not do. Universal contends
that all Frederick was doing, when he
called Damato, was checking on her
health, not offering to rehire her.
In attempting to prove this
contention, Universal relies upon the
testimony of Mr. Darrell Foell,
Universal’s representative. According to
Universal, Foell’s testimony established
"that employees with the applicant’s
Seniority were not recalled by November,
1985, and indeed employees with more
seniority than the applicant lost their
seniority lost their seniority at the
Same time applicant did." (Universal’s
1/19/90 brief at 9.)
The LIRC weighed this’ testimony
against that of Damato and determined
be-
that Damato’s test
credibility of a witness and the weight
to be given testimony, and reasonable
inferences drawn from that testimony, are
for the LIRC to determine. The Court may
not substitute its judgment for that of
the LIRC. Section 102.23(6), Stats. The
LIRC found Damato’s testimony credible is
supported by substantial and credible
evidence in the record. Therefore, even
though evidence may have been presented
by Universal that might lead to a
different conclusion, this Court may not
substitute its judgment on findings of
fact made by the LIRC when the findings
are supported by credible and substantial
evidence, as is the case here.
The fact that conflicting evidence,
on factual questions, was presented for a
determination to the LIRC, is not a
sufficient ground to overturn the
findings of the LIRC. Eastex Packaging
Co. v. ILHR Department, 89 Wis. 2d 739,
745 (1979).
II. The second issue is whether Damato’s
sec. 102.35(3), Stats. claim is
pre-empted by sec. 301(a) of the Labor
Management Labor Relations Act. Damato
contends her claim was not pre-empted,
because the LIRC did not have to
interpret the collective bargaining
agreement (hereinafter "CBA"). Universal
contends that her claim was pre-empted,
because the LIRC interpreted the CBA, in
reaching its decision. Universal argues
the LIRC was precluded from interpreting
the CBA, to grant Damato relief, pursuant
to the holding of Lingle v. Norge
Division of Magic Chef, Inc., 486 U.S.
__, 100° L.Ed. 2d 410, 422-3, 108 S.Ct.
1877 (1988).
The Court agrees with Universal that
Lingle does preclude judges, and by
A-46
implication state agencies, from
interpreting CBA’s when determining
questions of state law involving
labor-management relé -ions. According to
Lingle, such interpretations remain
"firmly in the arbitral realm. . . ." 100
L.Ed. at 422. Universal contends that it
was necessary for the LIRC to interpret
the CBA to reach its decision. Thus,
because the LIRC exceeded its
jurisdiction, by interpreting the CBA,
Universal argues this Court must overturn
the LIRC’s determination.
Damato argues, and the Court agrees,
that the LIRC did not have to interpret
the CBA to reach its decision. Since the
LIRC accepted the testimony of Damato,
regarding her being called back to work,
the LIRC did not have to construe the CBA
to arrive at its decision. The LIRC did
not interpret the CBA. And therefore no
A-47
pre-emption takes. place. It is the
opinion of the Court that the LIRC did
ts
fe:
not interpret the CBA in arriving at
determination. Therefore, Damato’s state
law claim was not pre-empted.
III. Universal has raised two additional
issues it claims are determinative in
this action for judicial review: (1) "Was
the employer’s right to due _ process
violated by a lack off adequate notice?;
and (2) Is a refusal to rehire an
employee who loses her seniority under a
collective bargaining agreement
reasonable?" (Universal’s 1/19/90 brief,
at 5.)
(1) In sum, Universal contends that a
"lack of adequate notice deprived the
employer of due process." (Id. at 11.)
Universal argues that it came to the
hearing prepared to dispute Damato’s
allegations of an unreasonable refusal to
A-48
rehire in February of 1987, but that it
was unprepared to dispute Damato’s
allegations of an unreasonable refusal to
rehire in November of 1985. Universal
argues that had it been put on proper
notice, it would have produced Frederick,
to refute Damato’s testimony. If, as
Universal claims, it was unfairly
prejudiced and deprived of due process,
that alone might be a sufficient ground
for the Court to reverse the LIRC’s
determination, as Universal argues,
citing Bituminous Casualty Co. v. DILHR,
97 Wis. 2d 730, 734 (1979).
However, the Court finds the
Bituminous, case is distinguishable from
the facts of this action, because there,
the employer did ask for an opportunity
to present evidence at the time of the
hearing. That did not occur in the case
at bar. Further, as Damato contends, and
A-49
the Court concurs, Universal’s due
process argument is without merit.
First, as clearly demonstrated by
the record, Universal knew of the
Frederick - Damato phone calls of
October, 1985, before the hearing, but
waived its opportunity for rebuttal by
failing to produce Frederick at the
hearing. Allen v. Allen, 78 Wis. 2d 263,
270 Claeys F Secondly, even assuming
Universal was Surprised by Damato’s
presentation, it is well settled law,
that, the right to any of the particular
elements of a fair hearing may be waived.
Appleton Electric Co. v. Minor, 91 Wis.
2d 825, 832 (1979). Finally, Universal,
upon timely notice, voluntarily appeared
and failed to ask for an adjournment to
bring in Frederick for rebuttal
testimony. Upon these facts, it is the
opinion of the Court that Universal was
A-50
not denied its right to procedural due
process. Riemer v. Riemer, 85 Wis. 2d
375, 377-78 (Ct. App. 1978).
(2) The second issue raised by Universal
be also without merit. The LIRC did not
base its decision on an interpretation of
the CBA. Instead, the LIRC’s decision was
based primarily on the credible and
substantial testimony of Damato.
Conclusion
It is the opinion of the Court that
the LIRC’s October 3, 1989 order is
supported by credible and substantial
evidence. Therefore, the entire order of
the LIRC, in this matter, dated October
3, 1989 is CONFIRMED. Counsel for the
defendant, LIRC, shall draw the
appropriate order and submit it under the
five (5) day rule.
Dated at Milwaukee, Wisconsin this 10th
day of July, 1990.
(Signed)
Francis T. Wasielewski.
Circuit Court Judge Presiding
. -
Yeas
BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
BARBARA DAMATO
14803 West National Avenue
New Berlin, Wisconsin 53151
Applicant,
Claim No. 84-57446
S. S. No. 378-68-2329
RED STAR YEAST PLANT
Universal Foods
325 North 27th Street
Milwaukee, Wisconsin 53208
Employer.
SEE ENCLOSURE AS TO
TIME LIMIT ON FURTHER
APPEAL.
On April 21, 1989, an Administrative
Law Judge of the Worker’s Compensation
Division of the Department of Industry,
Labor and Human Relations (hereafter the
Department) issued a decision which
dismissed the applicant’s compensation
claim for the employer’s alleged refusal
A-53
="
to rehire her, within the meaning of
section 102.35(3) of the Statutes. A
timely petition for Commission review was
filed on the applicant’s behalf, pursuant
to section 102.18(3) of the Statutes. An
Answer to the petition was filed on
behalf of the employer.
The Commission reviewed the record,
applicable law and the written arguments
cof the parties. The Commission also
consulted with the Administrative Law
Judge regarding the credibility and
demeanor of the witnesses. Based upon
this review, the Commission majority
determines that the Administrative Law
Judge’s decision should be reversed based
upon the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant began working for the
employer in 1983. She operated a
packaging machine and did _ repetitive
A-54
a
work. Her pay, seniority and conditions
of work were covered under a union labor
agreement. She suffered a compensable
injury (left. wrist carpal tunnel) with an
injury date of November 15, 1984. Prior
to this hearing, she received primary
compensation payments for that injury and
resulting disability. On November 15,
1984, she was laid off due to a lack of
work, aS was appropriate under the union
contract for workers with her seniority.
The employer has not rehired her. The
issue to resolve is whether the employer
unreasonably refused to rehire her,
within the meaning of section 102.35(3)
of the Statutes. The Commission majority
determines that this ‘question must be
answered in the affirmative.
An applicant establishes a prima
facie case by showing the _ following
factors: (1) that she was a statutory
A-55
employe at the time of her injury, (2)
that she suffered a compensable injury,
(3) that she was able to return to work,
and (4) that the employer refused to hire
her. If these~ four factors are
established, the burden shifts to the
employer to show that either suitable
work was not available which the employe
could perform, or that the employer had
reasonable cause not to rehire her.
The applicant established the four
factors of her prima facie case. The
first two factors were not disputed. The
third and fourth factors were established
by the following facts. In October of
1985,- the employer’s representative, Mr.
Frederick, called the applicant about a
job which required lifting of 25 pounds.
This was within the applicant’s one-year
union recall period, which did not expire
until November 15, 1985. The Commission
A-56
majority concludes that a job was
available and that the applicant was up
for recall under the union contract
procedure. Otherwise, the conversation
with Mr. Frederick would not have
occurred.
The medical opinions of Dr. Zupnik
and Dr. Wartinbee, dated in June and July
of 1985, respectively, were that the
applicant could perform the offered work.
Sometime between July and November 27,
1985, the applicant’s condition worsened
because Dr. Olson performed a _e second
surgery around that date in November.
However, even considering that her
condition worsened, the applicant still
established her prima facie case. fThis
is true because the employe offered to
Mr. Frederick to clear the job
opportunity through her physician, but
Mr. Frederick did not allow her that
A-57
opportunity. He, in effect, blocked her
Opportunity to show her ability to
perform the offered work.
The burden then shifted to the
employer to show that suitable work was
not available which the applicant could
perforn, or that the employer had
reasonable cause not to rehire her.
The employer asserted that in
October of 1985, the applicant’s
seniority was not sufficient for a
recall. The Commission majority finds
this reason pretextual. As discussed
previously, if her seniority was not yet
up for recall under the union contract,
then why would Mr. Frederick call her for
a job? There is no persuasive answer to
this question in the record.
In conference with the
Administrative Law Judge, the Judge
expressed sympathy with the employer.
A-58
The Judge felt that if the applicant
mentioned recurring problems to Mr.
Frederick, then Mr. Frederick probably
thought there was no use in attempting to
place the applicant in the job, based
upon Mr. Frederick’s assumption that she
probably could not perform the lifting
required in the position. The judge also
felt that the employer may have called
the employe just to see how she was
doing, rather than to offer work. Tne
Commission majority sees no persuasive
evidence in the record to support the
Administrative Law Judge’s suppositions.
Furthermore, an employer has the burden
of proving that the applicant was not
able to perform the offered work. The
employer does not meet this burden by
simply assuming the applicant’s inability
to work, especially when the employer has
refused to allow the applicant to consult
f A-59
with her physicians to establish her
ability to perform the offered work.
Such unfounded assumptions by employers
are precisely the type of = conduct
prohibited by the statute.
The applicant has lifting
restrictions in effect today. However,
work is available at the employer’s
business which she can perforn. In
consultation with the Administrative Law
Judge, the Commission learned that the
Judge agreed the record showed that the
employer has work which the applicant
would be able to perform, even with her
current restrictions. Nonetheless, the
Judge feit that since the applicant was
not returned to work within her contract
recall period, she had no entitlement to
those jobs. The Commission, however, has
ruled that the employer unreasonably
refused to rehire the applicant during
A-60
her contract recall period. The employer
has not shown that today the applicant
would not be entitled under the union
contract to the work which she can
perform if the employer had not refused
to rehire her in October of 1985.
Therefore, the applicant’s current
physical condition provides no basis for
denying or limiting compensation to which
she would otherwise be entitled under
section 102.25(3) of the Statutes.
As of January 23, 1989, (the date of
hearing), the applicant still has found
no other employment. She is, therefore,
entitled to the statutory maximum of one
year’s lost wages. This amounts to
$22,308. Her attorney is entitled to 20
percent of the amount awarded herein.
Attorney’s fees are thereby set at
$4,461.60.
NOW THEREFORE, this
ORDER
That within 30 days of the date of
this Order, the employer shall pay the
applicant the sum of $17,846.40, and
shall pay the applicant’s attorney the
sum of $4,461.60. This decision is being
issued as a final Order only as to the
issue resolved herein.
Dated and mailed at
Madison, Wisconsin, this
3rd day of October, 1989.
(signed)
Kevin C. Potter, Chairman
(signed)
Carl W. Thompson,
Commissioner
PAMELA I. ANDERSON, COMMISSIONER
(dissenting)
I am unable to agree with the result
reached by the majority herein and I
dissent.
I agree with the Administrative Law
Judge that the employer did not violate
section 102.35(3). The employer
testified that they did not get to the
employe’s seniority for the year the
applicant was gone. This would be from
November 1984 to November 1985. While I
agree with the majority, it would have
been very helpful to have Mr. Frederick
at the hearing to testify about the
October conversation, I do not believe it
was crucial to establishing what work was
available. Since they had not reached
the applicant’s seniority by November of
1985 when her recall rights under the
contract ran out, then they also could
A-63
not have offered her work in October of
1985.
The majority assumes that the call
from Frederick offered the employe a job,
and then when she wanted to check with
her doctor, Frederick said "never mind,"
we do not need you. The Administrative
Law Judge believed that Frederick had
called only to check on how the employe
was doing. The Administrative Law
Judge’s opinion is more than sympathy for
the employe where the employer testified
that the employe did not have sufficient
seniority for recall before November 15,
1985. After that date, the emplvoye had
lost her union recall rights which she
did not even grieve. The employe also
had additional surgery and more permanent
restrictions on what she could do for the
employer.
I am convinced that the employer did
not unreasonably refuse to rehire the
employe. For these reasons, I would
affirm the Administrative Law Judge
decision and deny the penalty of one
year’s wages.
(signed)
Pamela I. Anderson, Commissioner
CC:
James A. Beaudry, Attorney
2363 South 102nd Street
West Allis, Wisconsin 53227
Daniel J. Stangle, Attorney
Otjen, Van Ert, Stangle,
Lieb & Weir, S.C.
First Financial Centre
700 North Water Street, Suite 800
Milwaukee, Wisconsin 53202-4206
140-CD7423
A-
65
STATE OF WISCONSIN
DEPARTMENT OF INDUSTRY, LABOR
AND HUMAN RELATIONS
WORKER’S COMPENSATION DIVISION
P. O. BOX 7901
MADISON, WISCONSIN 53707
(608) 266-1340
378-68-2329
84-57446
Barbara Damato
14803 W. National Ave.
New Berlin, WI 53151
Applicant
James A. Beaudry
2363 S. 102nd St.
West Allis, WI 53227
~ Applicant Attorney
Red Star Yeast Plant
Universal Foods
3245 Ne 27tR St.
Milwaukee, WI 53208
Employer
Otjen, Van Ert, Stangle,
Lieb & Weir, S.C.
First Financial Centre
700 N. Water St., Suite 800
Milwaukee, WI 53202-4206
Respondent Attorney
>
1
66
Hearing was held January 23, 1989 in
Milwaukee, Wisconsin.
>
)
APPEARANCES:
Applicant, in person,
and by Attorney James
A. Beaudry;
Respondent by
Attorney Daniel J.
Stangle of Otjen,
Van Ert, Stanale,
Lieb & Weir, S.C.
67
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FINDINGS OF FACT
The applicant began working for
respondent in 1983. She operated a
packaging machine and did repetitive
work. Her pay, seniority and conditions
at work were covered under a union labor
agreement. The applicant was laid off due
to lack of work November 15, 1985 along
with other workers with her seniority.
Her accumulated seniority amounted to
just under one year due to other, prior
layoffs. The applicant and the other
workers with her seniority were not
recattea during the following year. The
applicant’s left wrist injury required
medical treatment during the layoff. She
received worker’s compensation as_ set
forth above. The medical restrictions the
applicant was under due to the left wrist
problem would have kept her from any work
she was qualified for at the company had
A-69
work existed in 1985 and should work
exist at present. The company terminated
~ ~n?Pi ran v7 - ae : , +. a-
the applicant when her seniority ran out
xT es on } - r¢ ) on mT} scm + a .
November 15, 1985. The applicant did not
contest under the labor contract the
“7 \ wile + "-ALIIN , . <> » o .
company’s act of counting worker’s
compensation leave as part of her layoff
cT
ime. Due to the cessation of temporary
total disability at the time of the
termination (the subject of a later claim
by the applicant against the insurance
company,) the company was not aware that
her status was anything other than layoff
when the termination was made. Because of
all these factors, the business decision
to terminate the applicant at the
expiration of her seniority was made with
reasonable cause and was not in any way
an act of discrimination due to the fact
the applicant had incurred this’ work
A-70
Injury. The claim for benefits pursuant
to sec. 102.35(3), is dismissed.
NOW, THEREFORE, this
ORDER
That the pending claim made pursuant
to sec. 102.35(3), Should be, and hereby
is, dismissed.
Dated at Madison,
Wisconsin, this 21st day
of April A.D., 1989.
(signed)
Thomas R. Jones
Administrative Law Judge
DEPARTMENT OF INDUSTRY,
LABOR AND HUMAN RELATIONS
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AIVNOUNRL rl VI rINUUBT I VWWoO
, ? 020
January 23, 1989
PRESIDING:
LIONOT RTT TOMA C NRC
HONORABLE THO MAS R. JONES
rer. CMpamMTiIIGT neo
Al INI »DLRATIVE LAW JUDGE
BARBARA R. HOFFMEIER, RPR
OFFICIAL REPORTER
(pages 6 & 7)
1984, and seven appears to be her
termination entry that shows that she was
terminated under the contract as of
November 20, 1985. Is that the date of
the termination, Mr. Stangle?
MR. STANGLE: The effective date
is November 15th, Your Honor. If you
would look at the third box from the left
on the top line, effective date, November
15th, 1985.
JUDGE JONES: OkKay. I have it.
I’ll just circle that with my blue pen.
That’s how it is on the exhibit now. So,
those are received 1 through 7. Mr.
Beaudry, how do you want to begin on your
case?
MR. BEAUDRY: I would like to
call the claimant as a witness.
BARBARA | DAMATO, called for
examination herein, after having been
AW-73
first duly sworn by the Administrative
Law Judge, was examined and testified as
follows:
MR. STANGLE: Your Honor, just
So it’s preserved for the record, we have
objected to the department’s jurisdiction
as we believe this case is pre-empted by
Lingle vs. Norge and section 3.01 of the
Federal Labor Management Relations Act.
JUDGE JONES: I’m familiar with
that Federal case, but the last I heard
it was reversed by the Supreme Court.
MR. STANGLE: That’s not
entirely accurate. The case was
substantially circumscribed and your
determination is dependent on your
interpretation of the bargaining
agreement.
JUDGE JONES: Maybe that’s it.
So far, the State of Wisconsin through
its Worker’s. Compensation Division and
A-74
the Labor and Industry Review Commission
has taken the position we can still hold
the hearings on discharges. So, until
they tell me different, I have to hold
the hearings.
MR. STANGLE: I appreciate that.
I would like the record preserved so I
don’t waive that on appeal.
JUDGE JONES: Mr. Beaudry, you
can go ahead.
DIRECT EXAMINATION
BY MR. BEAUDRY:
Q State your name.
A Barbara Ann Damato.
Q What is your address?
A 14803 West National Avenue, New
Berlin.
Q In 1984 you were employed by Red
Star Yeast; is that correct?
A Yes.
Q And what was your job there?
A-75
(pages 9-11)
JUDGE JONES: Well, lets back
up. I missed the date when she got her
doctor’s release. Ask that question
again.
Q (By Mr. Beaudry) When did the doctor
release you to return to work?
A Dr. Wartinbee, sometime in July, I
believe. He told me I could try going
back to work.
JUDGE JONES: July of what year,
1986?
THE WITNESS: No, I think it was
‘85. I’m not really sure.
JUDGE JONES: You first were off
from November of ’84 to June 29, 1985.
Then you had your elbow surgery in
November of ’85?
THE WITNESS: Correct.
JUDGE JONES: So, thinking back-
THE WITNESS: It was June of
"85.
JUDGE JONES: So you are saying
you were released to return to work in
late June of 1985?
THE WITNESS: Right. He told me
I could try going back to work.
JUDGE JONES: Your doctor then
was who?
THE WITNESS: Dr. Wartinbee.
JUDGE JONES: Pick it up from
there, please.
Q (By Mr. Beaudry) Now, did you have a
discussion with someone from Red Star
Yeast about your returning to work?
A Yes, I did, with my boss.
Q What was his name?
A Bernie Frederick.
Q When was that discussion?
A That was in October of ’85 when he
called me in to ask me if I could come
back to work.
Q What did you tell him at that time?
A I told him that knowing with the
cramps I was still having in my arn, I
would contact Dr. Wartinbee at the time
to see what he thought. Bernie said I
Should give him a call. I called my
doctor, and he said, "Go ahead and try
it, and I called Bernie back, and he
Said, "Never mind, we don’t need you."
This was for returning to the bagger
department, working in the bagger
department.
Q Did you have any further discussion
with him at that time?
A No. He just said I should stay in
touch with him.
Q Now, did you have a discussion with
him at a later time about returning to
work?
A Yes, I did, in December of ’85.
Q You spoke with Bernard Frederick; is
that correct?
A Yes, I did.
Q What was the conversation that you
had with him?
A Well, I had called him because I was
told by an employee that I worked with
that I was terminated, and I called
Bernie, and I said, "Do you need me for
work?" And he-= said, "No, you. are
terminated." And I said, "Why am I
terminated?" He said, "Because you were
on lay-off, and you weren’t able to come
back within a year’s time from a
lay-off." I said, "I wasn’t laid off, I
was injured." And he said, "You will have
to take it up with your union," and he
A-79
wouldn’t have any further conversation
with me.
Q You agree that your gross wage at
the time you were injured was $441.60 per
week?
A Yes.
Q Were you willing to go back to work
in October when you discussed it with Mr.
Frederick?
QO Are you aware of the fact that lower
seniority employees returned to work at
that time?
MR. STANGLE: Object, leading
and suggestive, assumes facts not in
evidence.
JUDGE JONES: Sustained.
Q (By Mr. Beaudry) Have you ever been
called to work by them since that time?
A No.
A-80
Q I want to show you what’s' been
marked as Respondent’s
(pages 14-18)
A I don’t recall any names, and I
didn’t write any down.
Q Was your second conversation with
Bernie Frederick or was it with Darrell
Foell?
A I spoke with Bernie Frederick.
Q You were a member of the collective
bargaining agreement in November of 1984
and even as late as November of 1985?
A Yes.
Q You did file a grievance over your
termination, didn’t you?
A I didn’t understand how to do it,
and everybody I talked to told me to do
something different, so I went to my
attorney.
Q You had a different lawyer at that
time?
rt
p44
A No, I did not. I was told I was
fired.
Q Just answer the question I’m asking,
please. If your lawyer has a additional
questions, I’m sure he will be able to
ask them.
You never went to Universal
Foods or Red Star Yeast or brought in
medical reports about your condition, did
you?
A No, I didn’t.
Q In fact, the worker’s comp. carrier,
Kemper Insurance, paid you disability
payments as late as 1987; isn’t that
true?
A Into ‘87.
Q Right. And at the present time you
have got permanent restrictions from Dr.
Olson; isn’t that true?
A Yes.
Q And what are those restrictions, Ms.
Damato, as you understand them?
A I don’t even remember.
Q Isn’t it true that when Dr. Olson
released you to return to work in 1986,
he started you out with a two pound
lifting restriction and said you could
build up to five pounds?
A Yes, I do recall that.
Q He never increased the restrictions,
has he?
A I never seen him to increase them.
QO So as far as Universal Foods and Red
Star Yeast were concerned, if they were
to take you back, they would have to
provide you work that you wouldn’t lift
over five pounds; isn’t that true?
A No, I would be willing to trying
something else.
Q Do you think the company should try
to give you work that’s heavier than what
the doctor told you you could do?
A I was willing to go back in October
when Bernie called me. This was my job. I
would be willing to try it.
MR. STANGLE: I have no other
questions, Your Honor.
EXAMINATION
BY JUDGE JONES:
Q At the company you ran a machine
that packaged the yeast?
A Yes.
Q Were you making those little foil
packages that people see in supermarkets?
A Yes.
Q You did things like watch the
machine and fill up the tray with
packaging material?
A Yes.
Q And if there was a problem, you
would call somebody?
A Yes, a problem with the machinery,
we would have to call somebody.
Q A little problem like a jam-up, you
knew how to --
A -- take care of it.
QO Was there lifting on that machine
job?
A Some but not very much. They were
teaching me how to run the scale before I
bee
got njured which involved a lot of
lifting.
Q So the job you were on when you got
your arm trouble was the scale job?
A No. It was the packaging, the
JUDGE JONES: Any redirect?
MR. BEAUDRY: Yes, I have one
REDIRECT EXAMINATION
BY MR. BEAUDRY:
Q In 1985, how did you contact Mr.
Frederick about returning to work?
A In October of 1985?
Q Yes.
A I called him by phone. It was after
he called me though I called him back.
Q And what was the type of work that
you understood from your conversation
with him was available to you?
A To work on the bagger.
Q That’s the packaging machine you
were on when you were hurt?
A No, this is a bigger bagger.
MR. BEAUDRY: That’s all the
questions I have.
JUDGE JONES: If he called you
to ask about the bagger job, how is that
that you diane go back to that job; was
something agreed between the two of you?
A-87
THE WITNESS: You mean when he
called me to ask me to come to run the
bagger?
JUDGE JONES: Right.
THE WITNESS: When I called him
back, he said, "Never mind, we don’t need
you," after my doctor told me to go ahead
and try running the bagger. The bagger is
run with twenty-five to fifty pound bags,
I believe. It’s not like you are doing it
alone. There is somebody there to help
you, and I was more than willing to try.
JUDGE JONES: Anything more, Mr.
Stangle?
MR. STANGLE: Not with this
witness.
JUDGE JONES: If Mr. Beaudry
wins benefits for you, he can get a
twenty percent fee. Has he told you about
that?
(pages 22-37)
the state of Washington, Idaho,
California, Maryland, Texas, Minnesota,
New Jersey, Missouri, Indiana.
JUDGE JONES: ee eI let Mr.
Stangle ask the questions, but I want to
know one thing: How is it that Mr.
Bernard Frederick signed her termination
notice? What was his position at the
company?
THE WITNESS: Mr. Frederick was
at the time in 1985 the production
superintendent of the packaging
department for the plant on Greves
Street. He was her -- not her immediate
Supervisor -- or -- but he would have
supervised Scott Burns (phonetic), Al Bop
(phonetic), a variety of other front-line
supervisors who would have directly been
responsible for the packaging department,
and as the production superintendent and
A-89
as the production superintendent of the
packaging department he is responsible --
one of the responsible individuals for
Signing it. Bill Rutter is the plant
Manager and his name is also on the
document.
JUDGE JONES: How do you spell
that Rutter name?
THE WITNESS: R-u-t-t-e-r.
JUDGE JONES: What is Mr.
Frederick’s relationship with the company
at this time?
/ THE WITNESS: He’s a retiree.
JUDGE JONES: Is this’ Rutter
still with the company?
THE WITNESS: Yes, Mr. Rutter is
still the plant manager.
JUDGE JONES: Okay, you can
continue Mr. Stangle.
Q (By Mr. Stangle) As director of
labor relations, the personnel files and
A-90
work records are in your personal custody
and control?
A Yes, sir.
Q At my request you reviewed Ms.
Damato’s personnel record and have it
with you today?
Q Were you able to determine whether
or not she was subject to lay-off before
her injury claim of November 15, 1984?
A Yes, sir. According to the file, she
would have been handed a lay-off slip on
November the 15th indicating that she was
to be laid off at the end of that shift
that day, and that is consistent with
what took place with a number of other
employees with seniority about the same
length of time.
Q Were you able to find the names of
any other individuals who were laid off
on the same date?
A Yes, a Phil Sporansa (phonetic),
Terry Sagrim (phonetic), Nancy Usoff
(phonetic), in addition to a number of
others. There are approximately eight to
ten employees who were laid off on either
November 15th .r November 16th of 1984.
Q Mr. Foell, as director of labor
relationships, you were familiar with the
collective bargaining agreement that
applied to the personnel at the Greves
Street facility?
Q You were involved with negotiations
of that contract?
A I have been since November of 1978.
Q Is there any distinction made in the
contract for individuals who are off work
for more than a year for lay-off as
opposed: to industrial injury and personal
illness?
A There certainly is, and there are a
number of different distinctions that
take place in the collective bargaining
agreement under I believe it’s section
4.03, an employee who has less than five
years of service will lose his or her
seniority upon being continuously laid
off for twelve months and an employee
with more than five years of service does
not lose his or her seniority until they
have been laid off for thirty-six months.
Q That has nothing to do with whether
you are injured at work or not, does it?
A Strictly in relationship to lay-off
due to lack of work.
Q Now, in Ms. Damato’s case
approximately how much did she actually
work in 1983?
A Well, according to the records that
we have, Ms. Damato worked for
approximately six weeks in 1983 at which
A-93
time she was permanently laid off. She
would not have achieved seniority at that
point in time, but due to the way we
handled operations of that nature, we do
attempt to call people back to work if
there is an opening so long as that
individual would not have lost his
seniority. In this case it would be
twelve months of continuous lay-off. She
was called back to work just short of
losing her first several weeks of
accumulation of work in October of 1984
and worked approximately four weeks at
that time at which time she was again
issued a notice of lay-off, and later on
that same date reported that she had a
problem with her arm, that was the last
day of work.
Q In reviewing Ms. Damato’s personnel
file, were you able to come across any
>
|
94
return to work slips form any doctor
whatsoever?
A None at all.
Q Now, we have had marked as exhibits
1 through 4 various doctor’s reports
including those from Dr. Zupnik, and you
had occasion to review these in my office
before the hearing, I believe, those
particular copies, the copies of then,
correct?
A Yes, that’s correct.
Q Prior to today, Mr. Foell, did
Universal Foods have any of those reports
in its possession?
A Universal had none of these reports
in its possession. They were obviously
forwarded by Ann Hamptom (phonetic) who
is an employee of Kemper our worker’s
compensation insurance carrier, and she
did not forward them to us.
Q So even as late as today, there is
no return to work slip from any doctor
showing that this claimant is ever fit to
work?
A That’s correct. I was not aware of
her ever being able to return to work.
Q Are there other individuals who were
laid off at the time she was that lost
their seniority and have been discharged?
A Yes, there’s an individual named
Phil Sporansa who was hired on January
9th of 1984 who lost his seniority on
January 15th -- November 15th of 1985,
the same date that Ms. Damato’s seniority
was terminated. Another employee named
Colleen Korlakowski (phonetic) who had
been laid off for a substantial period of
time also in 1985. Colleen did not quite
lose work due to being laid off for
twelve continuous months. She was offered
a return to work on or about November lst
A-96
of 1985 and refused to return to work at
that time and therefore lost her
seniority, but there also was one other
individual whose name I have forgotten at
this point who lost her seniority at the
same time.
Q Ms. Damato’s seniority date was
November 2, 1983?
A That’s correct.
Q These other individuals that lost
their jobs actually had more seniority
than she did?
A That’s not the case of Phil
Sporansa. He did not, but the other ones
did.
Q Had you had a conversation with Ms.
Damato regarding potential -- or after
November 15th of 1984?
A Yes, sometime in the middle of
February of 1986 I received a call from
Ms. Damato. She told me that she
A-97
understood that her name had been removed
from the seniority list and she wanted to
know why, and I responded to her at that
time that her name had been removed
because she had been on lay-off for
twelve months and under the collective
bargaining agreement a person with less
than five years of seniority lost her
seniority after twelve continuous months
of lay-off, and she responded that well
that wasn’t right. She wasn’t on lay-off,
and I said, "Well, our record shows you
were on lay-off, and if you disagree with
it, you ought to contact Jay Caplan
(phonetic) who is the president of the
local union and talk to him."
0 You heard Ms. Damato testify about
the physical restrictions given to her by
) 1 son?
A-98
Q She testified the last time she saw
Dr. Olson he restricted her to five
pounds of lifting, true?
A Yes. I heard that.
Q Is there any work available for her
at Universal where she would be
restricted to five pounds of lifting?
A Well, the only conceivable job that
I can think of that could be performed
under those agreements where the person
can’t lift as much as five pounds would
be in the packaging job that she had been
working on at the time that she was
injured, and even there, there’s a
serious question as to whether she would
be able to do the job with a five pound
weight restriction, but factually, our
entry level job today is the bagger job
and that job is one which results in
quite a number of claimed injuries. It is
bagging fifty pounds of crumbled yeast.
A~39
The first portion of the operation
involves a wrist flexion to close the top
of the bag and insert it into a heat
sealing unit. That portion of the job is
performed for twenty minutes. The
individual then goes into the next
portion of the job where they pick up
fifty pound bags by themselves at a rate
of four a minute and deposit them on a
pallet, and you work at that for
approximately twenty minutes and then you
go to operate a fork-lift truck for
approximately twenty minutes and then
repeat the rotation throughout the day.
With a five pound weight
restriction, there’s no way that Ms.
Damato could do that job.
Q With her seniority -- Lets assume
that there wasn’t a problem for a moment
with the collective bargaining agreement
and the discharge in November of 1985.
A-100
Lets assume for purposes of this question
that she still is on the rolls as an
employee. Under the collective bargaining
agreement with her seniority of three
months total work, is there any job that
She could go to other than the bagger
job?
A No, none at all.
Q That would be the the only one the
collective bargaining agreement would
allow you to put her in?
A That’s correct. That wasn’t the case
in 1983 because the contract’ read
differently in 1983. At that point in
time we had two separate departments, the
packaging department and the
manufacturing department. The bagging
operation was in the manufacturing
department, and we hired individuals into
the packaging department in 1983. In 1985
we did not because in our May 1985
A-101
contract negotiations we reached = an
agreement with the union that for hiring
purposes the plant would be treated as
having one seniority list and employees
would have to come into the open job. The
open job we have is a bagging job.
JUDGE JONES: This worker, Ms.
Damato, are you saying that following one
year after her November 15th, 1984
lay-off, she had not been recalled by the
company?
THE WITNESS: That’s correct.
JUDGE JONES: When did people of
her seniority get recalled?
THE WITNESS: The first time
that we had any recall for someone with
her seniority was well into February of
1986. In fact, one of the individuals
whose seniority date was November ist of
1983, I believe it’s Lisa Trapp
(phonetic) was recalled and laid off and
A-102
on from July of 1985 through roughly June
of 1986.
JUDGE JONES: Well, if you took
some other employees back in February of
1986 who apparently had been off long
enough to lose their seniority --
THE WITNESS: No.
JUDGE JONES: No?
THE WITNESS: No one had been
off long enough to lose their seniority.
We had some -- We had recalls in February
of ‘86, that if these individuals had
been on the seniority list yet they would
have been eligible for recall at that
time. What I’m saying, sir, is that
Universal Foods Corporation in its yeast
manufacturing division had some rather
troubling times through 1985 and 1986 and
employees like Lisa Trapp and Nancy Usoff
and Terry Sagrim all individuals whose
seniority dates were within roughly one
A-103
week of that held by Ms. Damato were
recalled and laid off and recalled and
laid off repeatedly during this period of
time. It was not until June of 1987 that
those individuals obtained more than
roughly three months of work during any
calendar year.
JUDGE JONES: But you are saying
you didn’t really have any recalls until
February of 1986, right?
THE WITNESS: We had recalls in
June, July, August, September, October,
November, December, each one of these
years -- months during this period of
time, but those recalls lasted for a week
at at time, very short periods of cine.
They typically were situations where
somebody would be off with a worker’s
compensation claim, they would be off on
vacation, they would be off on _ sick
leave, and we needed one person to fill
A-104
in. So one of these people would be
called back. However, we never got to the
position where Barbara Damato would have
been eligible for recall because she was
too low on the seniority list. In fact,
there were at least three people who lost
their seniority about November 15th or
November 16th of 1985 because they had
been laid off for twelve months. Barbara
Damato was not singled out or picked out
of any group.
JUDGE JONES: Let me break in.
I’m a simple guy. You have to answer
short questions with me. You are saying
up until the time of her termination
there was never a recall specifically for
Ms. Damato, right?
THE WITNESS: That’s correct.
JUDGE JONES: And that was
because you were -- the people you were
recalling were ahead of her in seniority?
A-i05
THE WITNESS: That’s correct.
JUDGE JONES: You never happened
to get to her?
THE WITNESS: That’s correct.
JUDGE JONES: So a year goes by,
and since she has been off a whole year,
she was removed from the roll?
THE WITNESS: That’s correct.
JUDGE JONES: That was that?
THE WITNESS: That’s right.
JUDGE JONES: You didn’t hire
back other people after her who had been
gone beyond their seniority time?
THE WITNESS: That’s right, we
did not.
JUDGE JONES: Anything more, Mr.
Stangle?
MR. STANGLE: No.
JUDGE JONES: Mr. Beaudry.
A-106
CROSS~-EXAMINATION
BY MR. BEAUDRY:
Q You indicate that Lisa Trapp -- Is
she still an employee with your company?
A That’s correct.
Q She was hired the same week that
Barbara Damato was, correct?
A Lisa Trapp, if my name is correct;
was hired the day before Ms. Damato was
hired.
Q You mentioned three other people
that were hired during that week that are
still employees?
A Yes, Nancy Usoff and Terry Sagrinm.
Q When was Nancy Usoff hired?
A I believe October 24th of 1983.
Q How about Terry Sagrim?
A I believe October 23rd of 1983.
Q Now, you were present in this
hearing when my client testified that Mr.
A-107
Frederick called her in October of 1985
to come back to work?
A Yes.
Q Do you have any reason to dispute
her testimony?
A Yeah, I do.
Q What is your reason?
A Well, when I heard it from Ms.
Damato before, I called Mr. Frederick and
asked him, and he said he never called
her back.
Q Now, Mr. Frederick is available to
testify here today; isn’t he?
A I have no idea; he’s a retiree.
Q If, in fact, she had gone back to
work in October of ‘85, that would have
extended her seniority an additional one
year’s time; is that correct?
A That’s correct.
Q And ultimately she would have gotten
probably partial call backs in the
A-108
following year that would have further
extended it just like Lisa Trapp had?
A Well, based on what I know today,
having seen these reports, I doubt that
she would have been permitted to come
back to work had Bernie called her back
in because, just as Ms. Damato said, she
would have had tc come back at the
bagging job, and according to this, she
had a five pound weight restriction.
There’s no way she could do the bagging
job.
Q You were here when she answered that
her doctor said she could try the bagging
job?
A Yes, I heard that.
Q You just told us that this is the
first time you saw these reports; is that
correct?
A That’s correct.
A-109
Q Isn’t it fair to assume that her
medical condition did not have anything
to do with your decision to recall or not
recall?
A Well, it is true her medical
decision -- or condition had nothing to
do with it. It was strictly a lay-off.
Q Especially those reports. You never
saw them?
A That’s correct.
Q If an employee is injured under your
collective bargaining agreement and
unable to return for a whole year, is
their seniority terminated?
A No.
Q Their seniority is only terminated
if there wouldn’t have been work
available for them; is that correct?
A That’s correct.
Q Now, at this time there is
approximately seven or eight’ people
A-110
working for Universal Foods that would
have lower seniority than Barbara Damato;
isn’t that correct?
A If she had retained her seniority;
that’s correct.
Q Some of those people were laid off
at the time she was and later called
back?
A No, no these were all new hires.
Q When were they hired?
A Some of them were hired in 1986,
some of them in 1987 - and again in 1988.
Q Now, when your employees are gone
for more than a year on lay-off, isn’t
at, in fact, the case where you
frequently call these people and ask them
to return to work if they were good
employees?
A We -- When we have eisktedee who are
on the seniority list, when their name
comes up on the list to be recalled, they
A-111
are recalled whether they are good
employees or not good employees because
they have seniority, and they are
entitled to be recalled at that point.
Q What about employees who have been
laid off for a year and are off your
seniority list but you concluded they
were good employees when they did work,
don’t you phone them and ask them if they
want a job back?
A No. We would be in violation of
affirmative action rules and policies if
they were to go about hiring from some
private hiring list. We do all of our
hiring of new employees from job
applicants, and we do not retain people
on a list for preferred hiring.
Q Even if they are outstanding
employees, they are not -- just never
going to come back to your company?
A-112
A They could come back to our company
if they applied for employment.
Q Could Barb Damato return to your
company if she had applied and her doctor
authorized her to work?
A Barbara Damato as with anybody else
who would apply for work and would seek
employment, would be given’ every
consideration and accordance with their
ability to perform the duties of the job.
Q Why didn’t you tell her that then in
February of 1986 when you spoke to her?
A She didn’t have a question about
whether she could be hired at that point.
Q You didn’t suggest that to her?
A I suggested that she contact Jay
Caplan who is her union steward to deal
with the question that she raised with me
which is why was she taken of of the
seniority list.
aW“ii3
MR. BEAUDRY: That’s all the
questions I have.
3.02 Notice of permanent job vacancy
shall be posted and the applicant with
the greatest seniority shall receive the
job vacancy, provided he is capable and
qualified to perform the work. Jobs will
be posted for a three (3) day period.
Employees may place their names on a list
which will be continuously available in
the plant office for any job opening
which may arise during any absences from
work.
Whenever the phrase "capable
and qualified" is used in this Article or
elsewhere in this contract, the
individual employee affected shall be
entitled to a fair trial in performing
the work, except in the following cases:
(a) Where he does not possess
the proper license required on the job.
(b) Where the job requires
mechanical skill, but he has not had
A~1i5
prior acceptable experience in that
mechanical branch.
(c) Where he has a—- known
handicap which might prevent him from
performing the job’ satisfactorily or
safely.
4.02 If further reductions are
necessary in the department, then regular
employees will be assigned or laid off in
acordance with their’ seniority. The
employee with the least seniority will be
asSigned or laid off first and so on in
that order, provided the retained
employees are capable and qualified of
performing the remaining work.
In the event assignments are
necessary to provide work for the more
senior employees, the employee must
accept the assignment or receive an
optional layoff. This layoff will be
considered as a regular layoff.
A-116
When a classification is
reduced, employees in that classification
by assignment shall be assigned out by
seniority first. If a further reduction
is necessary, it will be by seniority.
The employee whose job is eliminated will
be assigned to the job vacated by the
least senior employee in that
classification.
When a temporary job opening of
one (1) week or more occurs in a
classification, the most senior trained
and capable employee who has_ been
assigned out of that classification and
retains job rights in that classification
shall be assigned to the opening unless
his job classification and shift is
filled by assignment in which case he
will be assigned to his own job and the
employee he displaces will be assigned to
the opening.
A-117
If a permanent job opening
occurs and there is an employee working
in the Plant with rights to that specific
job classification and Shitt, the
employee will be returned to that job and
the opening will not be posted.
4.03 Seniority shall be defined as
length of service with the Company as
determined by the employee’s hiring date.
Seniority shall not be - subject’ to
adjustment for regular layoff except for
layoff of six (6) consecutive months,
when seniority will no longer accumulate
until recall. Seniority shall be subject
to adjustment for leaves of absence in
excess of forty-four (44) working days in
any (1) one contract year for reasons
other than illness, injury, military
service, or union service.
An employee who quits or is
discharged for cause shall forfeit all
A-118
seniority rights. Employees hired after
May 1, 1969, and laid off who have more
than five (5) years of seniority shall
forfeit all seniority rights after 36
consecutive months of layoff and all
employees with less than five (5) years
of seniority shall forfeit all seniority
rights after twelve (12) consecutive
months of layoff.
4.05 When work is again available,
employees will be recalled in the order
of seniority. It is understood that
employees to be rehired shall be notified
by registered mail, or the equivalent,
and if they fail to report for work
within seventy-two (72) hours of
notification, they shall be permanently
removed from the payroll and_e shall
forfeit all seniority. Any employee
unable to report for work for good and
sufficient reason within the required
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seventy-two (72) hours of delivery of
notice of recall to his last reported
address, and who so notifies the Company
within one hundred and sixty-eight (168)
hours, shall be placed at the top of the
recall list.
When an employee who has rights
to a permanent job is recalled from
layoff, or returns from jury duty, he
will be assigned to his permanent job, if
it exists, no later than the Monday shift
of the following week.
ARTICLE 16
GRIEVANCES AND ARBITRATION
16.01 Where a grievance may arise by
reason of an interpretation of this
Agreement, the parties to this Agreement
Shall make all reasonable efforts to
settle the same between them and in the
following order and procedyre:
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(A) Step No. 1 A bona fide
attempt shall be made to settle Such
differences between the Union and the
Company by the Shop Steward and the
Supervisor of the particular division and
shift affected. The Shop Steward must
present the grievance to the Supervisor
within seven (7) days of the alleged
violation and the Supervisor, on
receiving the grievance, shall process it
immediately and give an answer to the
Shop Steward within three (3) days.
(B) Step No. 2 i <4 such
difference is not satisfactorily settled,
it shall, within three (3) working days
after receipt of the Supervisor’s answer
in Step No. 1, be set forth in writing
signed by the grievant and the Shop
Steward and given to the Department
Superintendent, or his designated
representative, who shall discuss it with
A-i21
the Shop Steward within two (2) working
days after receipt of the grievance. The
Superintendent, or his designated
representative, shall give his written
answer within three (3) working days
after the meeting with the Steward.
(C) Step No. 3 If such
difference is not satisfactorily settled
by the Shop Steward and the
Superintendent under Step No. 2, the
matter shall be referred within three (3)
working days to the Plant Manager, or his
designated representative, and a
grievance committee of the Local Union
for the settlement of the difference. In
the event they cannot agree within three
(3) working days, after receipt of the
issue, then the matter shall be referred
to Step No. 4.
(D) Step No. 4 If the
differences shall have been submitted,
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but not adjusted under Step No. 3, either
party may, within ten (10) working days
after the final meeting under Step No. 3,
request in writing that the differences
be submitted to an impartial arbitrator
mutually agreed upon by the Company and
the Union. The decision of the arbitrator
selected shall be final and binding on
both the Company and the Union. The
expenses of the arbitrator shall be
shared equally by the parties. The
arbitrator shall have no authority to
modify, add to, subtract from or change
any of the terms or conditions of this
Agreement. By mutual agreement, the
parties may waive any step of this
procedure or extend the number of days to
answer or move or appeal a grievance.
(1) The arbitrator shall meet
promptly, the intent being to expedite
the work at hand and to arrive at a
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decision within thirty (30) days of the
date the case was first submitted to the
arbitrator.
(2) Should either side fail to
comply with the request to arbitrate
within the time specified, the party so
failing shall forfeit its case.
(3) Employees shall not be
locked out, cease work, walk out, or
engage in any strike during arbitration
and work shall continue under this
Agreement.
A-124
still having in her arm, and stated that
she would contact her doctor to see what
he thought. Her doctor allegedly advised
her to give it a try. When she called
Mr. Frederick back, he allegedly stated,
"Never mind, we don’t need you," and told
her to keep in touch with him. R. 8: 10,
22.
The employee never grieved her
termination. R. 8: 14 lines 9-24.
On February 9, 1988, the employee
filed an Application for Hearing claiming
an unreasonable refusal to rehire in
February 1987. The employer was never
put on notice prior to hearing that an
alleged refusal in October 1985 nn A be
an issue. See Application for Hearing
(Appx. p. 89).
IV. ARGUMENT
A. UNDER ALLIS~-CHALMERS VS. LUECK
AND LINGLE VS. NORGE, THE COMMISSION IS
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PRE-EMPTED FROM ANALYZING COLLECTIVE
BARGAINING AGREEMENTS, WHICH IT MUST DO
TO DECIDE THIS CASE.
Since the pre-emption issue is a
legal issue of first impression, the
Court may decide it without deference to
the decision of the LIRC. West Bend
Company vs. LIRC, 149 Wis. 2d 110, 117,
438 N.W. 2d 823, 827 (1989).
Section 301 of the Labor Management
Relations Act, 29 USC Section 185,
precludes state agencies from analyzing,
considering, or interpreting collective
bargaining agreements. In Allis-Chalmers
Corporation vs. Lueck, 47 US 202, 105 S.
Ct. 2006, 85 L. Ed. 2d 120 (1985), the
Supreme Court states:
"We do hold that when
resolution of a state-law claim
is substantially dependent upon
analysis of the terms of an
A-126
agreement made between the
parties in a labor contract,
that claim must either be
treated as a Section 301 clain,
. « +» or dismissed as pre-
empted by federal labor-
contract law."
47 US at 220.
Lueck further clarifies this
doctrine as follows:
"(S)tate-law rights and
obligations that do not exist
independently of private
agreements, and that as a
result can be waived or altered
by agreement of private
parties, are pre-empted by
those agreements. . . . Our
analysis must focus, then, on
whether the Wisconsin’ tort
action for the breach of the
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duty of good faith as applied
here confers non-negotiable
state-law rights on employers
or employees independent of any
right established by contract,
or, instead, whether evaluation
of the tort claim is
inextricably intertwined with
consideration of the terms of
the labor contract."
47 US at 213.
In Lueck, the Supreme Court held
that Wisconsin’s tort for bad faith
handling of an insurance claim was pre-
empted, since the obligation to make
timely payment of benefits arose out of a
collective bargaining agreement. A
determination of this question would
necessarily involve an analysis of the
party’s respective obligations under the
collective bargaining agreement. Hence,
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it was a question. of federal contract
interpretation, and was pre-empted by
Section 301. 471 US at 215-6.
A close look at the Lueck case, and
the above quotations, reveal that a state
law cause of action is pre-empted by
Section 301 whenever the determination of
the claim requires an analysis or
consideration of the terms of a
collective bargaining agreement. Once a
state court or administrative agency must
look at a collective bargaining agreement
to determine what it means, the cause of
action is pre-empted.
The Lueck case was re-affirmed by
the Supreme Court in the decision of
Lingle vs. Norge Division of Magic Chef,
Inc., 486 US 399, 405-5, 108 S. Ct. 1877,
100 L. Ed. 2d 410 (1988). In Lingle, the
Supreme Court states:
A-129
"Today’s decision should make
clear that interpretation of
' collective-bargaining
agreements remains firmly in
the arbitral realm; Judges can
determine questions of state
law involving labor-management
relations only if such
questions do not require
construing collective-
bargaining agreements."
486 US at 411
In Lingle, the Supreme Court held
that an action brought under’ the
retaliatory discharge provision of
Illinois’ worker’s compensation statute
was not pre-empted by Section 301. In
order to show a retaliatory discharge
under the statute, the plaintiff has to
show (1) that he was discharged or
threatened with discharge and (2) that
A-130
the employer’s motive in discharging or
threatening to discharge him was to deter
him from exercising his rights under the
worker’s compensation statute or to
interfere with his exercise of those
rights. See Lingle vs. Norge, supra, 486
US at 407; Horton vs. Miller Chemical
Company, 776 F. 2d 1351, 1356 (7th Cir.
1985). The Supreme Court reasoned that
each of these purely factual questions
pertained to the conduct of an employee
and the conduct and motivation of the
employer. Neither of the elements
required a Court to interpret any term of
a collective bargaining agreement.
Likewise, in order to defend against the
retaliatory discharge claim, an employer
must show that it had a non-retaliatory
reason for the discharge. This factual
inquiry also did not turn on the meaning
of any provision of a_ collective
A-131
ee eee eee eee
bargaining agreement. Hence, the state
law remedy under Illinois’ retaliatory
discharge law was independent of the
collective bargaining agreement in the
sense of "independent" that matters most
for Section ' 301 pre-emption purposes:
resolution of the state-law claim did not
require construing the collective-
bargaining agreement. Lingle vs. Norge,
supra, 486 US at 407.
Lingle made clear that where all of
the factual issues in a case can be
determined without reference to the
collective bargaining agreement, the
state law cause of action was not pre-
empted by Section 301.
The cause of action in this case,
under Section 102.35(3), Wis. Stats., is
much more similar to the cause of action
in Lueck than the cause of action in
Lingle: a consideration of the
A-132
collective bargaining agreement is
necessary to resolve the cause of action.
Section 102.35(3), Wis. Stats.,
explicitly indicates that the provisions
of a collective bargaining agreement
shall govern, when determining the
availability of suitable employment for .
an injured worker:
"In determining the
availability of suitable
employment . . . any written
rules promulgated by the
employer with respect to
seniority or the provisions of
any collective bargaining
agreement with respect to
seniority shall govern."
Section 102.35(3), Wis. Stats.
In unreasonable refusal to rehire
cases, the employee has the burden to
establish (1) that he/she was an
A-133
employee; (2) that he/she sustained a
compensable injury; (3) that he/she had
applied for rehire; and (4) that the
employer refused to rehire him/her
because of the injury sustained at work.
West Bend Company vs. LIRC, 149 Wis. 2d
110, 126, 438 N.W. 2d 823 (1989). The
employer has the burden to prove (1) that
suitable work was not available within
the claimant’s mental and physical
conditions, West Lend, 149 Wis. 2d at
126, and/or (2) that the employer had
reasonable cause not to rehire the
employee. West Bend Company, 149 Wis. 2d
at 123.
In this case, the employer
specifically tried to prove that there
was no suitable work available to the
applicant under the terms of the
collective bargaining agreement. R. 8:
23-28. In such a situation, the statute
A-134
specifically indicates that the terms of
the collective bargaining agreement shall
govern. Section 102.35(3), Wis. Stats.
Hence, the Commission was required to
analyze and consider the terms of the
collective bargaining agreement in coming
to its conclusion as to whether there was
an unreasonable refusal to rehire.
As it was required to do, the
Commission did analyze the collective
bargaining agreement in coming to its
decision in this case. The language used
by the Commission in its written opinion,
makes this very clear:
"This was within the
applicant’s 1-year union
cont *st recall period, which
did not expire until November
15, 1985. The Commission
majority concludes that a job
was available and that the
A-135
applicant was up for recall
= under the union contract
procedure. .
The Commission, however, has
ruled that the employer
unreasonably refused to rehire
the applicant during the
contract recall period. The
employer has not shown that
today the applicant would not
be entitled under the union
contract to the work which she
can perform if the employer had
not refused to rehire her in
October of 1985."
Decision of LIRC, p. 2, 4.
The Commission analyzed the terms of
the collective bargaining agreement and
determined that the applicant had a 1-
year recall period, which did not expire
until November 15, 1985. The Commission
A~-136
also indicates that it would have been
open to further evidence as to whether
the employee would have been entitled
under the union contract to a job, if the
employer had not refused to rehire in
October 1985. In other words, the
parties were litigating, and the
Commission was deciding, what the
employee’s rights were under the
collective bargaining agreement. Section
301 of LMRA, as interpreted by Lueck and
Lingle, specifically prohibits this sort
of decision making by a state
administrative agency.
In addition, the Commission
implicitly, although not explicitly,
decided many other legitimate questions
under the collective bargaining
agreement. The Commission appears to
have held: (1) that the employee was on
lay off status at the time of the
A-137
termination; (2) that the Article 4.03
provision, concerning loss of seniority,
applies to employees who are both laid
off and suffering from an industria]
injury; (3) that Article 4.03 applies to
employees who cannot return to work
because of restrictions; (4) that the
employer can be considered as _ having
violated the collective bargaining
: S5eEme x cy] ~ . <t7— Ffajilae +
agreement even when an employee fails to
under the collective bargaining agreement
to be recalled vis-a-vis other employees
All of these require an analysis,
consideration, and interpretation of the
collective bargaining agreement to
ietermine how to apply that agreement to
the facts of the case.
— ¢ + “ lactiu
interpretation of the ollective
a 5» *¥
m6 hhh Go
bargaining agreement was necessary to
decide this case, and therefore, it was
not pre-empted by Section 301 of LMRA.
The reasoning of the Court of Appeals is
as follows:
"Damato had just under one year
seniority at the time of lay
off; therefore, she forfeited
‘seniority rights after 12
consecutive months of lay off’,
or November 15, 1985. Damato
was given full release to work
in July 1985. Based on the
testimony in the record, LIRC
found that a job was available
within the l-year recall period
and that Damato was not
rehired. No interpretation of
the collective bargaining
agreement was necessary to make
A-139
this finding. Hence, there is
Simply no pre-emption."
Slip op. p. 4.
In other words, after analyzing,
considering, and interpreting the terms
of the collective bargaining agreement,
the Court of Appeals determines the
applicant’s rights thereunder, and then
indicates that no interpretation of the
collective bargaining agreement is
necessary. The Court of Appeals
implicitly holds that as long as the
terms of the collective bargaining
agreement are unambiguous, and can be
readily discerned from a review of the
collective bargaining agreement, no
interpretation is necessary to decide the
case. In coming to this decision, the
Court of Appeals relies upon Lingle.
However, Lingle does not stand for this
A-140
proposition. The Court of Appeals
applied the wrong standard.
The Court in Lingle held that the
cause of action was not pre-empted in
that case, because the factual issues
involved could be resolved without an
analysis or consideration of the terms of
the collective bargaining agreement.
Lingle, supra, 486 US at 407. Lueck
makes clear that if the determination of
a state law cause of action requires an
analysis or consideration of the
collective bargaining agreement, it is
pre-empted:
"Our analysis must focus
on. . . whether evaluation of
the tort claim is inextricably
intertwined with consideration
of the terms of the _ labor
contract
A-141
We do hold that when resolution
of a state-law claim is
substantially dependent upon
analysis of the terms of an
agreement made between the
parties in a labor contract,
that claim must either be
treated as a Section 301 clain,
or dismissed as pre-
empted by federal labor-
contract law."
Lueck, supra, 471 US at eave
220. (emphasis added)
Lueck also makes clear that whenever
a state cause of action depends upon
terms which the parties may voluntarily
Walve or alter by a collective bargaining
agreement, it comes within the pre-
emption doctrine:
"Therefore, state-law rights
and obligations do not exist
A-142
Court
decis
independently of private
agreements, and that as a
result can be waived or altered
by agreement of private
parties, are pre-empted b)
those agreements
Therefore, under Wisconsin law
it appears that the parties to
an insurance contract are free
to bargain about what
‘reasonable’ performance of
their contract obligatio
entails That being so, this
tort claim is firmly rooted in
the expectations of the parties
that must be evaluated by
federal contract law."
Lueck, 202 US at 213, 217
In our case, the Commission and
of Appeals acknowledge that
ion depends upon the
A-143
applicant had a 1-year recall period,
which did not expire until November 15,
1985. This is a right which can be
voluntarily altered or waived by
agreement of the private parties.
Similar to Lueck, the parties here can
negotiate over what is "reasonable" with
respect to terminations. Under Wis.
Stats. Section 102.35(3), whatever
agreement’ the parties come to with
respect to this question must be applied
by the Commission in determining whether
there is an unreasonable refusal to
rehire. This is prohibited by Lueck.
There is absolutely nothing in
Lingle, which overrules any portion of
Lueck. Lingle involved a case in which
the tate law claim could be fully
Nn
litigated without an analysis,
consideration or interpretation of the
collective bargaining agreement. That is
not the case here. In order to decide
this Section 102.35(3) claim, the
Commission was required to consider,
analyze, and interpret the terms of the
collective bargaining agreement. This is
prohibited by Lueck and Lingle.
The standard applied by the Court of
Appeals also is in conflict with case law
from the Federal Courts of Appeals, which
have dealt with the same issue. In
Johnson vs. Beatrice Foods Company, 9221
F. 2d 1015 (10th Cir. December 10, 1990),
the Court held that a tort action for
intentional infliction of emotional
distress under Oklahoma law was. pre-
empted by Section 301 of LMRA. The
plaintiff in Johnson alleged that the
employer’s conduct, which allegedly
included discipline, suspension, and
harassment, was outrageous. The Court
reasoned:
A-145
"We interpret the Oklahoma law
to mean that all aspects of
Johnson’s employment, including
the terms of the CBA, must be
considered when evaluating
whether Beatrice’s conduct was
outrageous. We therefore agree
with the District Court that a¢
cannot be determined whether
Beatrice’s conduct was
outrageous without determining
whether the conduct was allowed
under the CBA."
921 F. 2d at 1020.
The claim was pre-empted, because
Oklahoma’s tort for intentional
infliction of emotional distress did not
create an independent method of measuring
when an employer’s work-related conduct
was outrageous. 921 F. 2d at 1021.
A-146
Under Johnson, if a decision maker
must determine whether alleged conduct
was allowed under the collective
bargaining agreement, it is sufficient to
come within the pre-emption doctrine. In
this case, the Commission specifically
determined what the employer’s
responsibilities were under the
collective bargaining agreement. It
determined that a job was available to
the employee within her _ restrictions
within the union recall period. Decision
of LIRC, B. 2.55 This is exactly the
type of determination which was
considered to be pre-empted in Johnson.
A state court or agency cannot determine
whether a certain action is allowed or
required by the collective bargaining
agreement without running afoul of the
pre-emption doctrine under Section 301.
A-147
In addition, Johnson’ re-iterates
that where the determination of a state
cause of action requires a consideration
of the terms of the collective bargaining
agreement, it is pre-empted. The
decision making process of the state
agency or court must be _ completely
independent of the terms of the
collective bargaining agreement, for
there to be no pre-emption. 921 F. 2d at
1020-1021. Since Wis. Stats. Section
102.35(3) specifically indicates that the
terms of a collective bargaining
agreement must govern, there is no method
of measuring an employer’s work-related
conduct independent of the collective
bargaining agreement. Under Johnson,
this case would be pre-empted.
In Sluder vs. United Mine Workers of
America, 892 F. 2d 549 (7th Cir. 1989),
the 7th Circuit held that an employee’s
A-148
state action against his union for
personal injuries, allegedly caused by
the union’s failure in its duty to
properly make safety inspections, was
pre-empted by Section 301. In holding
that the action was pre-empted, the 7th
Circuit stated:
"In our view, it would not be
possible to define, with the
precision demanded by Illinois
law, the scope of the union’s
duty without reference to the
collective bargaining agreement
that governs the relationship
between the company and the
union. Indeed, the necessity
for such a reference is evident
from the complaint itself.
The collective bargaining
agreement and the dispute
resolution process established
A-149
under that agreement set forth
the circumstances under which
such action by the union would
be permitted."
892 F. 2d at 554.
"(T)he allegations set forth in
Counts I and II of the
complaint can be resolved only
by defining the precise nature
of the duty assumed by District
> # and that duty can be
defined only by reference to
the collective bargaining
agreement."
892 F. 2d at 555-6.
In Sluder, the 7th Circuit makes
Clear that if the determination of a
state law action requires reference to a
collective bargaining agreement, the
action is pre-empted. In this case, the
Commission refers to the collective
A-150
bargaining agreement a number of times.
Decision of LIRC, Sm. 8B, & The
requirement to look at the collective
bargaining agreement to determine the
union’s duty in Sluder is the same as the
requirement to look at the collective
bargaining agreement tc determine the
employer’s duty under Section 102.35(3),
Wis. Stats. Such analysis is prohibited.
Similar decisions were rendered by
the 8th and 9th Circuits in Harris vs.
Alumax Mill Products, Inc., 897 F. 2d 400
(9th Cir. 1990) and Hanks vs. General
Motors Corporation, 859 F. 2d 67 (8th
Cir. 1988). In Harris, the employee’s
claim was pre-empted, because it required
an analysis of the collective bargaining
agreement. 897 F. 2d at 403. In Hanks,
the claim was considered to be pre-empted
because an assessment of the claim and
the employer’s actions would be
A-151
—." +=” Yo
impossible without reference to the
collective bargaining agreement, a task
exclusively within the realm of the
arbitrators. 859 F. 2d at 69.
In Jackson vs. Liquid Carbonic
Corporation, 863 F. 2d 11 (1st Cir.
1988), the Court held that an employee’s
state cause of action for invasion of
privacy was pre-empted under Section 301
of LMRA. The employee had _ been
discharged for failing a drug test, and
the employer relied upon the management
rights clause of the collective
bargaining agreement as a defense. The
Court indicated that in determining
whether the drug test which Jackson was
subjected infringed his right to privacy
under state law, the single most
important consideration was whether the
test was "reasonable" in light of the
circumstances. 863 F. 2d at 118. The
A-152
Court held that Jackson’s privacy claims
could only be resolved by deciding
whether the employer’s conduct was
"reasonable" under the labor contract,
taking into account the "expectations of
the parties". It held that this is
quintessentially a matter of federal law.
863 F. 2d at 119. Only by probing the
contours of the collective bargaining
agreement could one determine whether the
drug testing program was legitimately
implemented. Hence, the privacy cause of
action was pre-empted. Id. Jackson
indicates that if the determination of a
state law claim requires scrutinizing,
863 F. 2d at 118, evaluating, Id.,
studying, 863 F. 2d at 120, = taking
account of, 863 F. 2d at 121, the
collective bargaining agreement, it is
pre-empted.
A-153
i
In our case, the Commission studied,
evaluated, scrutinized, and took into
account the collective bargaining
agreement to come to its conclusion that
the alleged October 1985 phone call came
within the contractual recall period.
The Commission had to take the collective
bargaining agreement into account. The
statute requires that the terms of a
collective bargaining agreement govern
when there is a dispute as to the
availability of work to a previously
injured employee. Wis. Stats. Section
102.35(3). The Supreme Court decisions
in Lueck and Lingle, and the Federal
Appellate decisions interpreting these
two cases, mandate that such a
consideration of a collective bargaining
agreement is sufficient to bring the
state cause of action within the pre-
A~154
emption doctrine. The Court of Appeals
applied the wrong standard.
This case is an excellent candidate
- for Supreme Court review. The decision
of the Court of Appeals is in conflict
with controlling opinions of the United
States Supreme Court, namely Allis-
Chalmers Corporation vs. Lueck, 471 US
202, 105 S. Ct. 2006, 85 L. Ed. 2d 120
(1985) and Lingle vs. Norge Division of
Magic Chef, 486 US 399, 108 S. Ct. 1877
100 L. Ed. 2d 410 (1988). The decision
also conflicts with several decisions
from the various Federal Courts’ of
Appeal, including a 7th Circuit decision
in Sluder vs. United Mine Workers of
America, 892 F. 2d 549 (7th Cir. 1989).
This question is a novel one of first
impression, the resolution of which will
have statewide impact. There are
probably dozens of cases presently
A-139
pending before the Department of Industry
Labor & Human Relations, the Labor &
Industry Review Commission, and_ the
various courts, which involve unionized
employees who have brought claims under
Wis. Stats. Section 102.35(3). All of
these cases will be affected by the
manner in which the Supreme Court decides
the Section 301 pre-emption issue. This
is a question of law of a type that is
likely to recur unless resolved by the
Supreme Court. In addition, this case
gives the Supreme Court an opportunity to
develop, clarify, and harmonize the law
by mandating a new doctrine to give the
administrative agencies and courts
guidance as to the circumstances in which
a Section 102.35(3) claim should be
considered pre-empted by Section 301 of
LMRA. This case fits the purpose of the
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Supreme Court, as defined by Wis. Stats.
Section 809.62(1).
B. SUPREME COURT REVIEW IS ALSO
APPROPRIATE ON THE ISSUE OF SUBSTANTIAL
AND CREDIBLE EVIDENCE. -
In this case, the employer produced
evidence that the employer had _ not
recalled a sufficient number of employees
to get to employees with Ms. Damato’s
seniority prior to November 15, 1984,
when her rights as an employee
terminated. R. 8: 23-27. There is
uncontradicted testimony that Colleen
Korlakowski. and one other employee had
more seniority than Ms. Damato, and were
laid off at the same time as her. R. 8:
26-27. There is absolutely no evidence
submitted by the employee to- the
contrary. Nowhere in the alleged October
1985 phone call between the employee and
Bernard Frederick did the employer
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indicate that the applicant’s seniority
was sufficient to allow her to come back
to work. R. 8: 10, Lines 6-19.
Nevertheless, the Commission held,
without any evidence, that the applicant
was up for recall under the union
contract procedure. Decision of LIRC, p.
oe The Commission and the Court of
Appeals find no persuasive answer in the
record as to why Mr. Frederick would call
Ms. Damato if someone with her seniority
was not up for recall. Decision of Court
of Appeals, p. 6., Decision of LIRC, p.
2- However, neither tribunal explains
why Frederick, with knowledge of Damato’s
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.