STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DAN BEDNARZ, Complainant

WILLIAM BEDNARZ CONCRETE CONSTRUCTION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199701804

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed: November 19, 1998
bednada.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review the complainant argues that the administrative law judge made several errors in his note taking. The complainant suggests that the commission should listen to the hearing tapes. However, the commission does not base its review upon the administrative law judge's notes, but upon a synopsis of the testimony contained in the hearing tapes, which is prepared by a legal assistant at the Equal Rights Division. The complainant has not presented any reason to question the accuracy of the synopsis in this case. Consequently, the commission declines to listen to the hearing tapes and will base its review upon the synopsis.

In his petition, the complainant argues that in May of 1996 the respondent hired two Mexican workers, but did not hire the complainant because he was a white, unskilled laborer. However, the complaint in this matter does not include an allegation that the complainant was denied hire based upon his race and, further, the record contains no evidence to suggest that this was the case. Consequently, this argument fails.

Next, the complainant argues, as he did at the hearing, that he blamed the presence of Mexican workers for the lack of overtime. The complainant asserts that if he were not required to pay taxes, he too could have worked for $8 per hour. This argument is wholly without merit. In the first place, there is no question that the complainant was earning substantially more than the Hispanic workers, even after the deduction of taxes. Further, the complainant presented no evidence to suggest that he would have been able to work overtime if not for the presence of those workers. Finally, even presuming the respondent intentionally hired low-paid workers in order to avoid the necessity of paying overtime to more highly-compensated employes, this would be a legitimate business decision solely within the employer's discretion, and would not constitute evidence of discrimination based upon race.

The complainant also reiterates his argument that the respondent's owner is a convicted felon who is not permitted to own a firearm, and that taking this individual hunting was a condition of the complainant's employment. The evidence in the record established that on one occasion the respondent's owner invited himself to go hunting with the complainant and that the complainant did not object, facts which do not warrant a conclusion that the complainant was required to take the respondent's owner hunting in order to keep his job. More importantly, even if the complainant had been required to go hunting with the respondent's owner, he has failed to explain how this relates to his allegation that he was discriminated against based upon his race and sex, and the commission is unable to envision how such conduct could constitute discrimination under the Act.

The complainant's next argument is that he was paid $700 for two weeks' work, not one. The complainant, therefore, maintains that he was paid $350 a week, while the respondent's female employe earned $480. This argument, which the complainant has raised for the first time in his petition for review, is simply not borne out by the evidence in the record.

In the petition the complainant points out that he asked the administrative law judge to delay the hearing, but he refused. The complainant does not indicate whether or why he believes the denial of his postponement request was erroneous, and the commission concludes that the administrative law judge's refusal to postpone the hearing on the ground that the complainant had had adequate time to engage in discovery was a reasonable one.

The complainant also raises a number of arguments regarding his claim for unemployment benefits. However, the respondent's conduct before the UI Division or the effect of initial benefit denial upon the complainant are not matters which relate to the complainant's discrimination complaint and are not before the commission.

The commission has considered the remaining arguments raised by the complainant in his petition, but finds them similarly unpersuasive. Because the complainant failed to present any reasonable ground for belief that discrimination occurred, the dismissal of his complaint must be affirmed.

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