# Petition for Writ of Certiorari — Universal Foods Corp. v. Wisconsin Labor & Industry Review Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2390%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 502 U.S. 921 ## Text ) 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 ¥ | A | ‘ ind Order a | 7 iT oy AU Lil. Lat te | . > y » LhnomaS ! j ne A-6' T ) | f ° rages L, , } , Don > ‘ ” } T , + ‘ y » ww A 4 ins a v _™ 7, + +} L ¢ st L.A ny a Lit J T my ¥ ry i | panuary >», } I } aie a a - iif iJ Lng . . . Aen sa ’ Lleé + ‘ ' Ra rr +h? 1 i . \ ; LIV é ele e' s,Q L111 1 ; _ . Tr . / ‘> ry) . ~~ + 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 > icient + suf of neo efT) | 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 | agic sits yg LnNC., “2 > r7 0n0cL \ Mw «z f = T VU f \ T=" ™~ 7. 5 iysoO . iii€cC majyOrl1vy _ +> miiat Cc > yy) ee a _ LL muStl. wo ee majOrlitry — 4 AT atrar? ~lacae —~KHe ee oe YEVeET UIE LESS, iit ma Viiv y P = + ae | +7 7 + ™ 7 nat S$t-at¢ Law Ciallil i- IU L . “~ . 7 -Ta. _— > / } \ KRoaraA1IICO .. Sec Osi « L{a) DeCcausec, Ln e734 Atl? " = _ eee eee VviAcw, Ad VU LIILeL yreta . _ oe . } “—- ; —— 5 2 yY | y OL LeCLLVS Dal JaLlnini 4 y - . : away tt - - - + sa « Y y , iicUC Ssal y 4 4 aorarmine t+, a+ ’ y + A —— ite Ses LLL a 2). i 742 » ia hRT A e732 &hkh 4 Rn + } ~ iVallanvic WiLiiidii eei— =, neriod." Matorityv selivD WoL A WU eo AGA ;UL — f oe ae SS r 4 t c@aoane ~hKHo ™~ ~ya eu wwocCiii. Cc, Lilt tite! }OrILLYy J P _wnr OoOY'Y he + nr ’ . “— . interpretation was necess r . lie aie le ie © i al ae | 4 , wey y J &» * c —~ tt ¥ © bal QGaililill 4 > J 7 is — oy Taba ~ - co wa ne cae ie a = Leowvweoev tl wu V/ woeililivVidaiv y it - t 4 waAamWi 711011 ALIA UYU eo Diir rane i . FF Vo rut’ LIQ as iaqe 436 v¢ 4 rITh or ~ + . ) / 4 WilCil a at Ludi i —_. ._ —~hHo v7 ~~ + — - ar Li Ulli iit sun ‘ 4 C A il Lv y i _ 7 of , . o ‘ 2QC 7 i - c> > 4 Lg ‘eae in Se ; Liacos this, as ,Y y + 2 - ~ Op. atv . bs . ry - ’ , nny | YY) rr Nnolas D Ama C¢ = + hRAvxry pre-empted by - — vy / the ma O LTY 4 —... o~ + - . L10nNn Vs ~iLS axe oOOom "+ , aqil eemehntce was ¥ mm a = ~ ae | mission = .>* Tt a -y v7 Cc I VamMmatlO Wad rh = ror 11¢ Yc ar St. al i, i Ar 4 y> \/ h/ « at “2 « } a | L An ! 1 mer sw A VA WO Lha Ll a4 us } "“|S131ICcC a + if y pe 1usSe Vii 4 .,rAtrICAAN e734 4+} fe Vv LSsSi1on a eS | — ,_ + + 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 = 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 - - - r4 r-— c-4 * r ~ c 4 cnt J 4 4 ( > . 4 a4 4J t . 4 4 , “~~ 4 = . _) 4 , a re > : = > 4 4 ’ , 4 I J j ‘ m4 > 14 _ ~ 4 ‘ 4 1 4 > + ~ ~ » 4 4 4 »4 ~ + ‘ es TS +4 — J 4 4 U + ~ = Ly ry at j fi ot 4 - Ji uv) 4 a | oe 4 f = 4 ‘ > . by da a. " ae pad = nd al f phe + . 4 iJ 4 . 4 rx i c4 4 _ a r pa 7 7 _ » 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 a] lL 7 4 mY ncaa Ff a) jy t ~rT vv I ( t >a * ob. heh ae.ele. KRA} / AMA i LAL , abate’ ‘a _nT wi sd A WwW ase , af v,7 i KT / , A TAA ECG ° WeU. VU. t “£409 - NAD yr + TMT ALTO P 4 V/ s\A aa ; ~ LT 7 1 ~ + ry ~ al ae, ~ } be | ()k i ¢ » } ( 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 A-119 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: A-120 (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 # 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 A-156 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 A-157 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 A-158 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2390%3A1. Public record. Not legal advice.