KEITH NEWSON, Applicant
ARCH ALUMINUM & GLASS CO INC, Employer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 3, 2005. The employer submitted an answer to the petition and briefs were submitted by the parties. At issue is whether the employer's discharge of the applicant constituted an unreasonable refusal to rehire, within the meaning of Wis. Stat. § 102.35(3). Also at issue is the applicant's average weekly wage.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Order. The commission makes the following:
On October 20, 2004, the applicant and a co-worker were flipping a piece of glass when the co-worker made a movement unexpected by the applicant, and the applicant sustained another cutting injury to his left hand. This time he lacerated an area near the anterior base of his left index finger, and severed a tendon. Dr. Neysan Bayat performed the surgical repair, and released the applicant to one-handed work on November 18, 2004. However, the applicant continued to miss work until November 30, 2004, while receiving treatment from Dr. Vance Masci, an occupational medicine specialist.
When the applicant returned to work he noticed that his supervisors adopted a critical attitude towards him. On November 29, 2004, the applicant missed work for a follow-up appointment with Dr. Masci, who released him to work restricted to 15-lbs. lifting effective November 30, 2004. When the applicant returned on that date, he received a written "Counseling Report" reprimanding him for returning from Dr. Masci without "required paperwork." This report was signed by the plant supervisor, Curtis Lovelady, and by the employer's human resources manager, Trish Logan. The paperwork required from Dr. Masci, was merely a report of the applicant's clinic visit, and it had been faxed from Dr. Masci's office to the employer before the applicant even left Dr. Masci's office.
On January 14, 2005, the applicant again saw Dr. Masci for follow-up treatment of his work injury. The applicant received a second "Counseling Report" that same day for allegedly failing to telephone his immediate supervisor to report his absence. However, the applicant attempted to call Lovelady several times prior to the start of his shift, but Lovelady was in a meeting. He then telephoned Logan and left a message on her voice mail indicating that he would miss work that day, because he was going to the doctor due to irritation of his stitches caused by work. Neither Lovelady nor Logan appeared at the hearing.
On January 19, 2005, the applicant left work to receive additional treatment with Dr. Masci for his hand injury. Dr. Masci released the applicant to restricted work effective January 20, 2005, but when the applicant returned on that date, he received a third "Counseling Report" from Lovelady. Lovelady wrote on the report that the applicant had failed to return to work after his appointment on January 19, 2005, even though the respondents' physician had indicated the applicant was available for one-handed work. The report does not acknowledge the fact that Dr. Masci had released the applicant for the rest of the day on January 19, 2005. The report also faults the applicant for not making the doctor's appointment outside of work hours, and for being insubordinate.
The insubordination charge stemmed from a discussion between the applicant and Lovelady that took place on January 20, 2005. Lovelady called the applicant into his office together with another supervisor, and Lovelady expressed anger over the fact that the applicant had not returned to work after the appointment with Dr. Masci the previous day. At one point, Lovelady called the applicant an "illiterate dummy," and the applicant got up to leave the room. Lovelady told him that if he left he would write him up for insubordination, and the applicant sat back down, but Lovelady eventually told him he was writing him up for insubordination anyway. Lovelady also suspended the applicant from work for the rest of that day.
The applicant decided to telephone Ed Revis, whom he believed was the owner of the company, but who actually is the employer's corporate human resources director. On January 21, 2005, a telephone conference took place with Revis on one end, and the applicant, Lovelady, and Plant Manager David Pozorski on the other end. The applicant complained about Lovelady's behavior towards him, and in the process became animated and raised his voice. Revis then listened to Lovelady's side of the story, asked Pozorski a couple of questions, and ultimately told the applicant to go home for the day. Later that same day, the employer discharged the applicant for "inappropriate and insubordinate tone during a conference call meeting." (Termination Record, Applicant's Exhibit B, p. 1).
In consultation with the commission, the administrative law judge indicated that his impressions of the applicant included that he was an excitable individual, that he had a temper, and that he would talk fast when he became excited. From these impressions the administrative law judge inferred that Pozorski's testimony concerning the applicant's behavior at the meeting held on January 21, 2005, was credible. Pozorski testified that at the meeting the applicant was argumentative, elevated his voice, got up out of his chair at least twice, once moved towards the door, and "flail[ed] his arms" probably three to four times. (1) Pozorski indicated he considered these gestures by the applicant to be threatening, and that he believed the applicant was insubordinate by not following his directions to calm down.
It is inferred from the evidence that the applicant is an excitable individual who did become angry in the meeting with Lovelady on January 20, 2005, and in the meeting with Lovelady and the others on January 21, 2005. However, as acknowledged by the administrative law judge in his discussion with the commission, the validity of the discipline administered to the applicant subsequent to his two work injuries was sometimes questionable, particularly with respect to the reprimands the applicant received from Lovelady. While this questionable discipline would not excuse truly threatening or insubordinate behavior, the commission infers that these are inaccurate characterizations of the applicant's behavior at the two meetings.
Lovelady was not at the hearing to describe what happened at the meeting held on January 20, 2005. Pozorski testified that he observed the applicant and Lovelady in that meeting through office windows from a different floor level, and that he could not hear what was said, but that he did see the applicant get up from his seat and make expressive hand gestures. Clearly, the applicant was upset with Lovelady, and getting up from his chair and making gestures with his arms would be consistent with his personality. However, the undisputed testimony of the applicant was that Lovelady called him an "illiterate dummy," which was certainly a provocative comment. In addition, the applicant had a legitimate basis to question some of the discipline Lovelady had administered to him. Considering all these circumstances, the applicant's behavior as observed by Pozorski through the office windows does not credibly support an inference of threatening or insubordinate behavior.
The same can be said for the applicant's behavior at the meeting held on January 21, 2005. While the commission infers that the applicant again became excited and raised his voice when complaining about Lovelady, it is not credible that any of the supervisory personnel present at that meeting, in person or via the telephone, actually felt threatened by the applicant's behavior. Pozorski described the applicant's failure to "calm down . . . sit down . . . and maintain composures" (2) as insubordinate. However, the applicant had a legitimate grievance concerning Lovelady's treatment of him, and he was essentially fighting for his job. It is inferred that neither Lovelady nor anyone else at the meeting was surprised that the applicant lost his composure to some degree, and had to be reminded to calm down or sit down. It was not credibly demonstrated that in the heat of the moment, his behavior could reasonably be considered insubordinate.
Finally, the manner in which the employer decided to discharge the applicant was precipitous. The applicant was not warned that his behavior at the second meeting, which he himself had requested as a form of grievance, was being judged as threatening and insubordinate. The employer gave him no opportunity to explain his behavior before firing him. Considering these facts, and the fact that the applicant had only worked for the employer for a relatively short time before sustaining two work injuries within a period of less than one month, the commission infers that these work injuries did influence the employer's decision to discharge the applicant.
Accordingly, the commission finds that the employer failed to demonstrate reasonable cause for its discharge of the applicant, and that such discharge constituted an unreasonable refusal to rehire, within the meaning of Wis. Stat. § 102.35(3).
Pozorski conceded that the applicant made $8.50 per hour for the first 40 hours of work, and $12.75 for hours over 40. He noted that the applicant's hours fluctuated based on sales and based on the length of the construction season. He further noted that during the winter the applicant's hours could drop down to 40 per week, but that as of April 11, 2005, he probably would have been working 10 hours a day for five days a week; and subsequently, his hours would probably have gone up to 60 or more per week. The applicant claimed an average weekly wage of $605.71. The employer asserted before the beginning of the hearing testimony that the average weekly rate was $382.50. However, the employer submitted a WKC-13-A admitting an average weekly wage of $554.45, and paid temporary disability using that figure as the average weekly wage. The applicant submitted no discernable proof of a higher wage. The commission therefore finds that the applicant's average weekly wage was $554.45, which results in annual wages of $28,831.40. The applicant remained unemployed from January 21, 2005 through the hearing date of September 6, 2005, a period of 32 weeks and 5 days. This amounts to 62.74 percent of his annual wage, or $18,088.82.
The applicant's attorney is entitled to a 20 percent fee plus $259.51 in costs.
Jurisdiction will be reserved with respect to whether or not the applicant sustained additional lost wages subsequent to September 6, 2005, up to the maximum limit of $28,831.40.
NOW, THEREFORE, this
Jurisdiction is reserved as noted in the above findings.
Dated and mailed May 12, 2006
newsoke . wpr : 185 : 8 ND § 7.32
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
cc:
Attorney Steven G. Kmiec
David Pozorski
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