BEV J ORR, Complainant

NATURES BAKERY COOPERATIVE, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. In paragraphs 4, 5, and 11 of the administrative law judge's FINDINGS OF FACT the acronym "ATM" is deleted and the acronym "AWM" is substituted therefor.

2. In paragraph 26 of the administrative law judge's FINDINGS OF FACT the acronym "ATW" is deleted and the acronym "AWM" is substituted therefor.

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

Dated and mailed August 16, 2007
orrbe . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

In her petition for commission review the complainant alleges numerous errors or omissions in the administrative law judge's decision which she believes warrant reversal. First, the complainant argues, without citation to the decision, that the administrative law judge's decision implies that the payment of overtime is a consensus decision rather than a legal requirement, and that the decision "promotes the image" that after April 7, 2004, overtime was legally paid, free of resentment and hostility. She states that the decision fails to address the competence the complainant demonstrated as personnel manager and the important improvements she made within a short time period, although entrenched abuses had been allowed to fester by the current coop members and every previous personnel manager for 30 years. The complainant argues that, since the administrative law judge cites several labor abuses which the coop is too incompetent to recognize, she questions why the coop has been adjudged competent to evaluate anyone's personnel management performance. The complainant also takes issue with the finding that every coop member is a board member and states that board members must be elected. The complainant maintains that the inaccurate portrayal of herself as a board member "promotes the error" that she could be expelled by a simple majority vote, and argues that the decision does not address the procedure for expelling a coop member. Finally, the complainant states that the wording of paragraphs 8 and 12 promotes the image that an employee who does not agree by consensus to conspiracy and collusion to violate the law is somehow uncooperative. She maintains that the administrative law judge's decision is clearly worded in support of the general opinion that cooperatives are exempt from the law.

The complainant's arguments fail. The administrative law judge's decision contains nothing to convey either support for or condemnation of the respondent's management practices. The issue is not whether the respondent correctly applied wage and hour laws, whether it maintained its operation in an efficient manner, or whether it followed its own bylaws in discharging coop members, but whether its decision to discharge the complainant was motivated by a belief that she had filed or was going to file a wage complaint. After independently reviewing the synopsis of the sworn hearing testimony and the documentation submitted by the parties, the commission concludes it was not. It is clear from the record that the respondent's worker members felt the complainant was not a good fit for the business based upon a number of legitimate, performance-based concerns: The complainant routinely limited the number of shifts she was willing to work, she failed to appear at a job interview for a new member without a valid reason, and in one instance she neglected to order packaging supplies and refused to take responsibility for the shortage. In addition, the respondent believed that the complainant displayed a negative attitude towards certain job responsibilities and was disdainful of its consensus-based approach to decision making.

While the record reveals that the complainant had raised the subject of the respondent's failure to correctly follow overtime rules, and that this initially caused some friction with the respondent, the matter had been addressed prior to the complainant's discharge and the situation remedied. The complainant -- who never worked more than 40 hours a week during her employment with the respondent and was therefore not eligible for overtime -- did not file a wage complaint, and there is nothing in the record to suggest that the respondent believed she intended to do so. The commission agrees with the administrative law judge that the complainant failed to demonstrate probable cause to believe she was discharged in retaliation for having engaged in any statutorily protected activity. Accordingly, the dismissal of her complaint is affirmed.

cc: Attorney David R. Sparer

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uploaded 2007/08/20