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

MICHAEL L GLENN, Complainant

BARKO HYDRAULICS LLC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200001321,


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 September 24, 2003
glennmi . rsd : 125 : 9 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The complainant, Michael Glenn, began employment with the respondent in March 1976. As of November 2001, he had been a "lead man" for the respondent for fifteen years. Glenn had also been a union steward during the years from 1997 to 2000.

Michael Glenn alleges that the respondent retaliated against him because he drafted a Labor Standards complaint against the respondent in 1996 that alleged a violation of Wis. Stat. § 109.07 (Business Closing/Mass Layoff law) and because he himself had filed a complaint against the respondent on March 27, 1999, alleging a violation of § 109.07.

Included as alleged acts of retaliation, Glenn asserted that on April 13 1998, he was asked for a copy of his marriage license for insurance purposes; in June 1998 he was denied a request to take unpaid leave off and instead forced to use vacation; in September 1998 the respondent requested a copy of his (new) wife's divorce decree; in June 1999 he was requested to do welding that a junior employee should have done; on October 5, 1999, he was discussing a union grievance with a grievant and was told to get back to work; on October 8, 1999, he was threatened with discipline for passing out information regarding the union's executive board; on October 15, 1999, he was harassed about cardboard boxes in his work area; and that in the year 2000, on January 13 the respondent requested an explanation for the "inaccuracies" he said existed in a document the respondent had presented to the ERD's Labor Standard's Bureau; on February 3 the respondent verbally requested an explanation for the inaccuracies; and on March 2 he was given a three-day suspension for gross misconduct for filing false and misleading information with the state.

The evidence fails to support a showing that probable cause exists to believe that the respondent's actions, as alleged by Glenn, were in retaliation because he had drafted the complaint against the respondent in 1996 or because he had personally filed a complaint against the respondent in March 1999. First of all, Glenn failed to establish that the respondent knew that he was the drafter of the 1996 Labor Standards complaint. Although Glenn argues that the comments made by the respondent's assistant general counsel at page 19, lines 7-12 of the transcript of an arbitration hearing (Exhibit C-23) shows that the respondent was aware of his involvement with the 1996 Labor Standards complaint, they do not. Further, the evidence showed that the reason the respondent requested a copy of Glenn's marriage certificate, and subsequently a copy of his new wife's divorce decree, was because he requested that his new wife be added as a dependent under the respondent's insurance plan. With respect to marriage, when an employee asks for a change in insurance benefits because of a change in family status it is the respondent's standard policy to ask for a copy of a marriage certificate. For dependent insurance coverage under the respondent's health insurance plan there was a requirement that his spouse be his "legal spouse." Wisconsin law, Wis. Stat. § 765.03(2), provided that the marriage of a person again before the expiration of 6 months from the date of the granting of judgment of divorce was void. Glenn argues that he was singled out with respect to having to furnish a copy of his marriage certificate and the divorce decree but the evidence shows otherwise. Indeed, the evidence shows that pursuant to a union request to see marriage certificates that had been furnished by other employees, the respondent showed them to the union and the union was satisfied with the information provided.

With respect to Glenn's request for unpaid time off in June 1998, the evidence showed that he was requesting time off in excess of 8 hours and that it was the respondent's policy that requests for time off over 8 hours would not be granted until all earned vacation time had been exhausted. Glenn claims that this was another instance where he had been singled out but he failed to substantiate this claim.

The evidence showed that in June 1999 the respondent requested Glenn to weld in another area due to a shortage of employees because quite a number of employees had been laid off. In fact, the respondent met with the union committee on this issue and it was agreed that the respondent could use a welder wherever needed, particularly when there was a contraction in the business.

With respect to his conduct on October 5, 1999, Glenn argues that there was testimony that as a union steward he had a right to conduct union business and that he was singled out for his activity. The evidence showed that Glenn's October 5, 1999 "discussion" of a union grievance related to a grievance on which there had already been many weeks of fact-finding, that the matter had already been discussed with the union committee and was scheduled for a Step C meeting or arbitration, and it was not a grievance for which Glenn was responsible. Glenn filed a charge with the National Labor Relations Board (NLRB), which included a claim with respect to his conduct on October 5, alleging that the respondent had engaged in an unfair labor practice by interfering with, restraining and coercing him for engaging in union and other protected activities by threatening him with discipline. The NLRB's investigation failed to reveal that the respondent had acted unlawfully.

Glenn has argued that the "literature" he passed out on October 8, 1999, was done at break time and in people's break area. However, the evidence showed that the "literature" Glenn was passing out on October 8 caused the respondent concern because its impact and subsequent discussion went beyond break time. The October 8 incident was also included in the charge Glenn filed with the NLRB alleging that the respondent had engaged in an unfair labor practice by interfering with, restraining and coercing him for engaging in union and other protected activities by threatening him with discipline. Again, the NLRB's investigation failed to reveal sufficient evidence to establish that the respondent had told him that he could not engage in protected activities at anytime or anywhere in the plant, or that he would be written up for insubordination if he persisted in such activities.

In finding of fact no. 10 the ALJ includes a finding that "Glenn stacked boxes, most of them empty, around his work station to create a sort of privacy fence." Glenn takes exception, arguing that at the hearing it was made quite clear the boxes contained air cleaners used on machines built in that area and were stacked on a shelf, not as a fence. This argument fails. The evidence shows that the respondent was concerned, for safety reasons, not with the boxes on the shelf but with respect to empty boxes that were stacked up around Glenn's work area.

Finally, in findings of fact nos. 7 and 8 the ALJ stated as follows:

7. During the investigation of [Glenn's March 27, 1999 complaint] Glenn wrote a letter to the Labor Standards Bureau alleging that one of Barko's exhibits, submitted to the Bureau, contained inaccuracies. Barko management, when it learned of Glenn's letter, became very concerned that Barko was being portrayed, to a regulating agency, as less than truthful.

8. By letter dated January 13, 2000 Barko asked Glenn to disclose just what those inaccuracies were. Glenn at first agreed but later refused. In response to Glenn's refusal to provide the information, Barko suspended him for three days without pay on March 2, 2000 for what it termed "gross misconduct". Glenn's original complaint to the Equal Rights Division Labor Standards Bureau was not a factor in Barko's decision to suspend Glenn's employment.

Glenn apparently argues that his letter alleging that one of the respondent's exhibits contained inaccuracies should have been protected activity.

Glenn's 3-day disciplinary suspension was also the subject of a grievance that was filed with the NLRB and ultimately decided by an arbitrator. The following excerpts from pages 14 to 20 of the arbitrator's February 16, 2001 decision are instructive on Glenn's claim of protected activity:

(10) On January 13, 2000, Mr. Hanson [then respondent's president] sent a letter to Mr. Glenn indicating in part as follows:

"We are in receipt of your letters, dated January 4, 2000, addressed to both Mr. Raduenz [Assistant General Counsel for respondent] and myself, advising us as to how offended you were by our letter dated December 7, 1999 to Mr. Anderson [Labor Standards Bureau Director]. Our intention was not to offend anyone, but simply to clarify what we deemed to be incorrect and/or misleading information.

We found it interesting in your referenced letter that you claimed you 'would never provide false or misleading information to anyone; anytime', yet in your November 1999 correspondences with the DWD, you failed to acknowledge the fact that all the employees laid off as of March 24th had been recalled. Instead, you continued to let Mr. Anderson believe that at least some of those employees had not been recalled. As a union steward, you knew that all those employees had been recalled, yet you chose to ignore that fact and continued to assert that the Company was violating the Act. Although you may not have technically provided misleading information, the failure to correct existing information which you knew was incorrect is just as misleading.

You next stated that you agree that 'all 47 (forty-seven) employees laid off on March 24, 1999 had been recalled by November 15, 1999', which implies that some of the subject employees may not have been recalled until November 15, 1999. To bolster this implication, you claimed that 'Exhibit A has some inaccuracies and should be corrected', but conveniently fail to indicate what the 'inaccuracies' were. Although we are unaware of any inaccuracies in the Exhibit, it is likely that if there were any inaccuracies which would have supported your assertions, you would have identified them for Mr. Anderson. Once again, it would appear that the information you provided, or failed to provide, to Mr. Anderson was meant to mislead him or to give him the impression that the information provided by the Company was somehow incorrect.

If your intention was not to mislead anyone or cause the Company any hardship as you claimed, your actions suggest otherwise. While the Company respects the rights of its employees to seek redress for wrongs that may have been perpetrated on them by the Company, it will not tolerate unwarranted assaults on it based on false or misleading information.

Please provide us with your explanation detailing the 'inaccuracies' you claim to exist in the exhibit that the Company tendered to Mr. Anderson."

In determining whether the above referenced record justifies the disputed discipline, the undersigned finds the following considerations to be determinative.

(1) It seems apparent from the record that Mr. Glenn had been relying on so-called information and belief in initiating his charges against the Company in April 1999. The Union is quite correct that the fact that the initial charges were ultimately shown to have been based upon mistaken assumptions of fact would not alone have supported discipline for disloyalty to the Company, in the absence of a definitive showing that the action had been undertaken in bad faith.

(2) The actions of Mr. Glenn subsequent to the initial filing of charges against the Company, entailed elevation of his unsupported and mistaken assumptions to assertions of fact, and clearly raised questions relative to both his motivation and his continued good faith.

The Discipline of the Grievant was principally triggered by his January 4, 2000 letter to Mr. Hanson, and to Mr. Anderson and Mr. Sansone of the Department of Workforce Development, alleging that certain information previously supplied to the Department by the Company ".has some inaccuracies and should be corrected." When this allegation is considered in conjunction with his earlier inaccurate assertions of fact, it created a prima facie case of employee disloyalty, thus shifting the burden of going forward to the Union to rebut the presumption that he had intentionally or negligently misrepresented facts to the DWD which, if believed, would indicate that the Company had provided it with false information.

(3) When the Company, on February 3, 2000, asked the Grievant to identify the alleged inaccuracies referred to in his January 4, 2000 letter, he indicated that he would try to do so by the end of the month; when he was again asked for the information on March 2, 2000, he indicated, through Steward Pat Collins, that the dispute was over, that he saw no reason for providing the information, and that he was simply not going to do so.

(4) When the Grievant was asked on cross-examination to identify the basis for his January 4, 2000 allegation that the Company had provided inaccurate information to the DWD, he confirmed that he had neither requested, received nor reviewed the specific layoff and recall information available from either the Company or the Union prior to making his allegations, and confirmed that he had merely relied-upon (sic) unspecified common knowledge in the shop; when he was asked the basis for his having earlier alleged inaccurate findings of fact by the DWD, he was similarly unable to identify any reasonable source of information in support of this allegation.

On the above described bases, it is clear that the allegations advanced by the Grievant in his testimony fell far short of rebutting the prima facie case of employee disloyalty established by the Company. It is clear that when the Grievant moved beyond the initial filing of his complaint with the Department of Workforce Development, he thereafter either negligently or intentionally published false statements of alleged facts, which could forseeably have had adverse impacts upon the Company, and such action would normally constitute a breach of his duty of loyalty to the Employer. Accordingly, the Employer has fully established the underlying factual bases for the disciplinary suspension of the Grievant.

The Significance of External Law Upon the Disputed Discipline

What next of the Union's allegation that the Grievant should not have been disciplined by the Employer because his actions undertaken in connection with the above described charges against the Employer had constituted protected concerted activities under federal law, and/or that they had been privileged and that his discipline had thus constituted discrimination precluded by Wisconsin Law? While the Union is quite correct that employees filing or participating in the processing of alleged claims of violation of Wisconsin's WARN Act [Business Closing/Mass Layoff law] are protected against employer discrimination, and that employees engaged in so-called protected concerted activities under federal law, may enjoy significant leeway in carrying-out (sic) such activities, this insulation from discipline or discharge is not unlimited, and it does not routinely extend to all forms of intentional, negligent and/or malicious actions directed against either an employer or individual members of management..

In determining whether the Grievant's continuing communications with and to Wisconsin's Department of Workforce Development had gone beyond the level at which they were protected or privileged under external law, it is noted that he was not a persuasive or effective witness in his own behalf:

(1) As discussed and referenced in footnote 38 above, he was unwilling or unable to identify any reasonable basis for various of his allegations of fact reported to the Department of Workforce Development in connection with its disposition of his charged violation of Wisconsin's WARN Act.

(2) While it is undisputed that Mr. Glenn was a Union Steward at the time of the disputed events, he rather unconvincingly attempted to indicate that he had been acting alone, in what clearly appears to have been an attempt to distance himself from being charged with actual or constructive knowledge of the detailed layoff and recall information which had previously been made available to the Union by the Employer.

(3) As discussed earlier, there is a significant distinction between advancing opinions based upon information and belief versus alleging the existence of facts. When an obviously knowledgeable employee, such as the Grievant, simply fails to check factual layoff and recall records readily available from either the Employer and/or the Union, and instead persists in advancing his unsupported beliefs and opinions as "facts", with the apparent intent/effect of misleading the DWD, he clearly exceeds the reasonable boundaries of protected concerted activity under the National Labor Relations Act, or privilege under Wisconsin law.
. . . 

On the above described bases, the undersigned has preliminarily concluded that the actions of the Grievant for which he was disciplined did not constitute protected concerted activity under federal law, and the discipline for his actions fell far short of constituting discrimination under Wisconsin law.

(Underlining, bold and italicized text emphasis in original.)

The arbitrator then went on to find that "the misconduct of the Grievant was quite serious and, despite his long and exemplary employment record with the Company, his three day disciplinary suspension was not too severe, under all the circumstances of the case, to comport with the reasonableness component of the discipline for cause requirement", and "denied and dismissed" Glenn's grievance.

For all of the above-stated reasons, the commission has affirmed the administrative law judge's dismissal of Michael Glenn's complaint in this matter.

 


NOTE: The commission also notes that Glenn has expressed dissatisfaction with the fact that it took the ALJ two weeks short of a year to issue his decision. While the delay in the issuance of the decision is regrettable, the WFEA contains no mandatory time limits for issuing decisions, and delay in the issuance of a decision under the Act does not constitute a deprivation of due process. LaCoy v. Wisconsin Farmers Union (LIRC, 02/28/96); Meier v. Whispering Oaks Care Center (LIRC, 06/04/97).

 

cc: Attorney Gary A. Raduenz


Appealed to Circuit Court. Affirmed August 23, 2004.

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