Wis.LIRC ER Decision: Newell - August 30, 1996 - Retaliation - discrimination because of opposition to discrimination or filing complaint - retaliation for wage claim - denial of Christmas bonus because of unpaid lunch period lawsuit

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

JAMES J. NEWELL
TEAMSTERS GENERAL LOCAL 662, Complainant

WEATHERSHIELD MANUFACTURING INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9400783

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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: August 30, 1996
newelja.rsd : 125 : 9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

This case involves a claim that the respondent retaliated against the unionized assembly division employes by refusing to pay them a Christmas bonus in 1993 because they attempted to enforce a right (November 1992 lawsuit seeking compensation for unpaid lunch periods) under s.103.02, Stats.

The respondent is a manufacturer of doors and windows. It operates seven plants in Wisconsin, inclusive of its assembly division in Medford, Wisconsin, which employs about 150 employes. The respondent employs a total of about 1500 employes at its Wisconsin plants, but the assembly division employes at the Medford plant are the only employes represented by a union. General Teamsters Union, Local 662 (and Local 354 before that), has represented the assembly division employes.

During the period from 1986 through 1990, the respondent gave all of its employes a Christmas or holiday bonus check of $50. This bonus was increased to $75 during the years 1991 and 1992.

During the summer of 1992, in preparation for upcoming negotiations for a new collective bargaining agreement, Robert Dittrich, the respondent's director of manufacturing, determined that the respondent should seek to eliminate the maintenance of standards clause contained in the contract. This clause stated in relevant part as follows:

The Company agrees that all conditions of employment relating to wages, hours of work, overtime, and vacations, now granted, shall be maintained at the same standard as exists at the time of the signing of the Agreement, unless specific provisions are made elsewhere herein.

Both the company and the union read this provision as requiring the company to continue to provide, during the term of the contract, any benefit, including a holiday monetary bonus, if it had been provided in the past. During the negotiations the union resisted removal of the maintenance of standards clause. Ultimately, the respondent backed off its demand for removal of the clause and instead proposed that a section be added to the maintenance standards provision giving the respondent the sole right to give or not give a gratuity including, but not limited to, a bonus, merchandise or food stuffs. A tentative agreement was then reached on December 3, 1992, and it became finalized in the spring of 1993.

During the fall of 1993, Dittrich advised Leo Litowich, labor relations attorney for the respondent, that he had tentatively decided that a holiday bonus would not be given to the assembly division employes. Dittrich confirmed that the assembly division employes would not be given a holiday bonus in early December 1993. All the remaining employes would receive the holiday bonus, however. Dittrich testified that he decided that a holiday bonus would not be given to the assembly employes because under the new collective bargaining agreement the respondent was not required to pay them a bonus and because payment of a Christmas bonus involved a monetary matter and he believed it was the union's obligation to bargain for any benefits its members received.

Section 103.02, Stats., concerns hours of work. Over the years it had been the practice that assembly division employes would take a 20-minute unpaid lunch period. (According to the respondent, Local 662 had agreed to this practice.) In any case, on December 2, 1991, the union filed a complaint with the Equal Rights Division's Labor Standards Bureau claiming that unpaid lunch periods of less than 30 consecutive minutes free from duty for lunch was in violation of the administrative code and that the employes were entitled to back pay. The ERD and the respondent reached a settlement on this claim, which resulted in payment of some monies to the employes. The union claimed not to have been involved in the negotiations resulting in the settlement. The union viewed the settlement as unacceptable and therefore filed the November 1992 lawsuit in circuit court over the unpaid 20- minute periods.

As the lawsuit was proceeding, attorney John Gretzinger of Litowich's law firm, contacted Dittrich about a possible settlement of the lawsuit. On December 7, 1993, the judge in the case had suggested that the parties attempt to settle the matter. After discussing the matter with Litowich and making some calculations of potential costs of the case on December 13, Gretzinger advised Dittrich that the litigation could be costly. Dittrich did not have much interest in a settlement because he believed the company had done nothing wrong, because the company had previously paid the employes when the ERD case was resolved and because Dittrich did not want to appear as though admitting any guilt or wrongdoing by entering into a settlement. However, because of the potential costs involved, Dittrich was willing to consider a settlement. Gretzinger, having confirmed that the respondent had already decided not to give the assembly division employes a holiday bonus, and deciding that a settlement payment of $75 was a nominal amount, suggested that the company offer to pay each employe $75 and to make it appear as if the payment was made in the regular course of business so the respondent would not look as though it was admitting liability.

Dittrich authorized Gretzinger to make the settlement offer. On December 14, 1993, Gretzinger sent a letter via facsimile to Naomi Eisman, an attorney representing the complainant in the lawsuit against the respondent. The letter outlined the settlement offer as involving a cash payment of $75 to be paid on or before December 24, 1993, and a voluntary dismissal of the lawsuit. Gretzinger subsequently spoke with Eisman by phone regarding the settlement offer.

In a memo to the assembly employes dated December 16, 1993, Robert Gibbons, Manufacturing Director, responded to employe inquiries about whether there would be a Christmas bonus stating in part as follows:

Weather Shield's initial inclination was not to distribute a Christmas bonus this year. However, we have contacted the union and proposed a method that would allow a bonus to be paid.

In the event that your union agrees with our proposal, Christmas bonus checks will be distributed next week. Otherwise, there will be no Christmas bonus this year.

In a letter sent via facsimile to attorney Eisman dated December 20, 1993, Gretzinger informed her that the respondent had withdrawn its settlement offer as the union had not responded to the settlement offer by the deadline of 10:00 a.m. on December 20.

In a memo to the assembly employes dated December 20, Gibbons stated in part as follows:

Last week Weather Shield proposed a settlement of this matter in which each current eligible employe at Weather Shield's Assembly Division would receive $75, with Weather Shield paying the appropriate taxes, in exchange for settling the outstanding dispute concerning the 20-minute lunch hour. The Union requested an extension of time to respond to this settlement proposal so that it could consult with employees regarding the terms of the proposed settlement agreement at the Union meeting scheduled for Friday, December 17, 1993.

This morning we learned that the Union meeting was canceled by the Union. To date, the Union has yet to respond to Weather Shield's proposal, and we assume that our proposed offer of settlement was not accepted by the Union.

Section 3.0(c) of the collective bargaining agreement provides:

(c) Notwithstanding any other provision of this Agreement, the Employer reserves the sole right to give or not to give a gratuity including, but not limited to, a bonus, merchandise or food stuffs.

This provision was negotiated in November of 1992, and does not place any obligation upon Weather Shield to pay any bonuses. Due to the lack of a response to our offer from your union, we must decline to issue a bonus this year.

Accordingly, the bonus which employees received last year will not be paid by Weather Shield in the foreseeable future.

Under the Fair Employment Act, it is an act of employment discrimination "To discharge or otherwise discriminate against any individual because...(a) The individual files a complaint or attempts to enforce any right under s.103.02..." Section 111.322(2m)(a).

The complainant alleges that there can be no dispute that their exercise of a protected right caused the respondent to deny assembly employes holiday bonuses. The complainant argues that Leo Litowich and John Gretzinger, counsel for the respondent, admitted the causal connection between the attempt to enforce their rights and the denial of holiday pay in testimony at the hearing, and that a December 20, 1993 company memorandum to assembly division employes confirms this connection.

Assuming for purposes of argument that the denial of a holiday bonus to assembly employes constituted an adverse action (effective in December 1993 assembly division employes no longer had a right to a holiday bonus--such bonus was totally within the discretion of the respondent) which followed their attempt to enforce a protected right under s.103.02, Stats., the testimony and evidence cited by the complainant fails to demonstrate a causal connection between the two. Litowich does not equate payment of the holiday bonus with dropping the lawsuit as asserted by the complainant. Litowich states that it had already been agreed that a holiday bonus would not be given; that the settlement proposal was that if the lawsuit was dropped the employes would be paid $75 a piece. Nor did Gretzinger admit a causal connection between the lawsuit and denial of the holiday bonus. The complainant cites testimony by its counsel, Naomi Eisman, as support for its assertion regarding Gretzinger. However, Gretziner testified that in his conversation with Eisman he made it clear that there was not going to be a Christmas bonus, that there was an offer to settle the lawsuit consisting of a payment in the same time frame as the Christmas bonus.

The December 20, 1993 memorandum does state that the respondent was denying a bonus due to the union's lack of response to the respondent's offer to settle the lawsuit. It also indicates that such lack of response would affect future bonuses. However, the only way that the December 20, 1993 memorandum can be seen as truly confirming a causal connection between the lawsuit and denial of the Christmas bonus is if all of the following is ignored: 1) That the holiday bonus denial was first contemplated by the respondent and put into motion during the summer of 1992, before the lawsuit was even commenced; 2) that the first opportunity for the respondent to use its discretion to deny a Christmas bonus to the employes was in 1993; 3) testimony by Robert Dittrich and the respondent's counsel that the final decision was made to deny a holiday bonus in early December 1993, before the idea of an offer to settle the lawsuit came about (Gibbon's December 16, 1993 memo to the assembly employes confirms this); 4) testimony by Dittrich that denial of the bonus occurred because the bonus involved a payment of money which was something he felt was the union's job to secure for its members through bargaining; 5) testimony by Dittrich and respondent's counsel that the respondent felt strongly that it was not guilty of any wrongdoing with respect to the charges made in the lawsuit but was nevertheless desirous of a way to settle it without appearing that the respondent was caving in or admitting to have done something wrong and that what was decided upon to avoid the appearance of admitting to wrongdoing was to offer a payment of $75 at the same time other employes were paid a $75 Christmas bonus; and 6) testimony by Gretzinger that during his phone conversation with Eisman he made it clear that there was no Christmas bonus per se, that the only bonus that would be possible would be a settlement check. Even Eisman concedes that she was told by Gretzinger that "the settlement offer is the Christmas Bonus."

The preponderance of the evidence simply fails to establish a causal connection between the respondent's denial of a Christmas Bonus to the assembly division employes and their lawsuit concerning the 20-minute lunch periods. The testimony by the respondent's witnesses was consistent. There was absolutely no evidence to contradict the testimony that the decision not to pay a Christmas bonus had been made prior to the offer to settle the lawsuit, and that the reason no Christmas bonus was given was because the assembly division employes were represented by a union and Dittrich felt that it was the union's job to bargain for any benefits its members received.

cc: SCOTT D. SOLDON
STEVEN K. GIRARD

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