JOHN D JOHNSON, Applicant
UNITED PARCEL SERVICE, Employer
The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on October 15, 2010. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are: (1) whether or not in this case the issue of unreasonable refusal to rehire is federally preempted by Section 301 of the Labor Management Relations Act; and (2) whether or not the employer unreasonably refused to rehire (discharged) the applicant subsequent to his conceded work injury of September 10, 2008, within the meaning of Wis. Stat. § 102.35(3).
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:
The applicant began his employment with the employer as a part-time laborer in 1993, and was promoted to a full-time driver's position in 1995. His duties included driving a semi-tractor/trailer from the Madison area to Chicago and back. On September 9, 2008, his shift began at approximately 7:00 p.m., and by 8:00 p.m. he had left from Madison with his truck tractor pulling two trailers to Chicago. He arrived in Chicago at approximately 11:15 p.m., and after approximately one hour there began the return trip, this time with his truck tractor pulling one 53-foot trailer.
At approximately 2:00 a.m. that morning, September 10, 2008, he was driving on the interstate near the Wisconsin-Illinois line. The road was under construction and the applicant was driving in the right lane of the two-lane, westbound side of the interstate. The lane in which the applicant was driving had only about a one-foot shoulder, at the edge of which was a two-to-four-inch drop off to soft dirt. The applicant alleged that he was driving at approximately the speed limit of 45 miles per hour when a semi started to pass him in the left lane. He further alleged that the driver of the semi veered his trailer too close to the applicant's rig, causing the applicant to steer his rig to the right in order to avoid contact with the other vehicle. The applicant alleged that he turned his steering wheel to the right to avoid making contact with the other trailer, that this maneuver caused the right front tire of his truck to fall off the shoulder of the road, and that when he tried to steer back onto the road he lost control of his vehicle. His entire tractor/trailer rig ultimately fell over onto its side in the ditch, and he sustained injury.
The applicant also alleged that the trailer of the rig that passed him came within "3 to 4 inches" of contacting his truck cab. The employer disputed this allegation, and noted that the rear-view mirror mounted to the applicant's cab extends 2 or 21/2 feet out from the cab, but that there was no damage of any sort to the driver's side of the applicant's vehicle.
The applicant's truck was equipped with a tachograph, which is a device that records information concerning the operation of the truck that can be downloaded onto a computer. The tachograph provided information indicating that during the time the accident unfolded, there had been no application of the truck's brakes; and also, that the truck's clutch had been engaged while the accelerator was pressed, resulting in a spike in the engine's RPM's. The employer indicated that in situations such as those faced by the applicant, their drivers are trained to immediately apply the brakes, and either come to a stop or slow down to a speed that would allow them to safely pull back onto the road.
The Illinois State Police responded to the scene and a traffic crash report recounted the accident as described by the applicant. No citation was issued but the damage to the employer's truck totaled $16,798. The employer promptly began an investigation of the accident, including sending an investigator to the scene. The applicant had been involved in eight previous accidents while driving for the employer. One of those accidents involved rear ending two vehicles in November of 2005, which resulted in the employer discharging him. However, he exercised his rights through the union grievance procedure and obtained reinstatement. In October 2006, he was again discharged after he pulled over to the side of the road and fell asleep, causing him to arrive late to his destination. The applicant again pursued the union grievance procedure and again was reinstated, but only after he and his wife met with the employer and agreed that he would get more sleep before starting his shifts. The applicant worked on a farm during the day, and together with his job for the employer this resulted in his getting a reduced amount of sleep.
The employer's post-accident investigation resulted in a decision to discharge the applicant, based on his prior driving record and the inference that the final accident was caused by his nodding off or some other inattention to his driving duties. The employer did not believe the applicant's version of how the accident occurred. It cited the absence of damage to the driver's side of the applicant's rig, the tachograph evidence that it believed was inconsistent with the applicant's statements, and the applicant's lengthy history of preventable accidents. On September 29, 2008, the employer met with the applicant and his union representative and gave him the option of resigning or being fired. He chose to resign to protect his employment record. He did not file a union grievance.
In consultation with the commission, the administrative law judge indicated that he found the applicant's description of what had occurred in the accident to be credible. He referred to the state trooper's report and the fact that the applicant did not receive a citation, and also indicated that he interpreted the applicant's testimony to mean that the other vehicle came within 3 to 4 inches of his rear view mirror, and thus made no actual contact with his vehicle. He interpreted the tachograph readings as demonstrating only that the applicant panicked when his truck dropped off the shoulder of the road.
FEDERAL PREEMPTION ISSUE
The preliminary issue raised by the employer involves the question of federal preemption. One of the reasons the employer raised this issue was because the administrative law judge found in his decision that the applicant had not been shown to have engaged in "gross negligence," which is the phrase used in the applicable collective bargaining agreement (Article 17(d) of the CBA).(1) As the employer correctly notes, federal preemption applies when an employee's claim against a private employer is substantially dependent on analysis of the relevant collective bargaining agreement, because in such cases Section 301 of the Labor Management Relations Act (29 U.S.C. § 186) applies. Lingle v. Norge, 486 U.S. 399, 413, 108 S.Ct. 1877 (1988). However, federal preemption does not apply as long as the state-law claim can be resolved without interpreting the collective bargaining agreement itself. Id. The Lingle decision summarized its holding as follows:
"In sum, we hold that an application of state law is preempted by section 301 of the Labor Management Relations Act of 1947 only if such application requires the interpretation of a collective-bargaining agreement." Id.
The operative distinction between claims that require interpretation of the collective bargaining agreement and claims that do not was illustrated in Universal Foods Corp. v. LIRC, 161 Wis. 2d 1, 6, 467 N.W.2d 793 (Ct. App. 1991). In that case, the court upheld the commission's finding of an unreasonable refusal to rehire that was based on a determination that work was available to the injured applicant, and that this factual determination was not contingent upon interpretation of the seniority provisions of the collective bargaining agreement.
In the case at hand, the "gross negligence" provision of the collective bargaining agreement need not have been cited by the administrative law judge because the meaning of that phrase was not at issue or even discussed at the time the applicant was given the option to resign or be discharged. The employer's representatives informed the applicant that they did not believe his version of the accident, and that based on their suspicions and his prior accident record he must either resign or be discharged. The applicant asserted to the employer that he was not guilty of falling asleep or of any inattention when the accident occurred on September 10, 2008. The dispute was factual, and did not involve any interpretive disagreement over what "gross negligence" might mean in the context of what had occurred. Accordingly, Section 301 of the Labor Management Relations Act does not enter into the analysis of whether or not there was an unreasonable refusal to rehire in this case, and there is no federal preemption of the commission's jurisdiction.
UNREASONABLE REFUSAL TO REHIRE
Once an employee establishes that he has sustained a work-related injury and has been discharged or refused rehire, the burden shifts to the employer to demonstrate that reasonable cause existed for its action. West Bend Co. v. LIRC, 149 Wis. 2d 110, 121, 438 N.W.2d 823 (1989); Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278, 330 N.W.2d 606 (1983).
In this case, the commission finds that it is not necessary to determine exactly what the applicant did or did not do when the accident took place on September 10, 2008. The determinative issue is whether or not the employer had reasonable cause to discharge him after the accident, and the commission finds that such reasonable cause did exist. The applicant had a very poor driving record with the employer, including two prior discharges for accidents that were determined to have been preventable. A prior history of reporting to work in a sleep-deprived state was also established. The tachograph evidence was summarily dismissed by the administrative law judge as merely demonstrating that the applicant panicked when his front truck wheel dropped off the shoulder of the road. However, the applicant never testified that he panicked, nor did he provide an explanation for not applying the brakes as he had been instructed to do in such instances. It was also significant that the applicant chose to resign rather than to force a discharge and then follow the grievance procedure that he had followed on two previous occasions. The commission finds that the employer made a reasonable business decision when it examined the applicant's entire driving record, drew reasonable factual inferences regarding his final accident, concluded that he was not a safe and reliable driver, and thereupon decided to take the action that it did. There is no indication in the record that the fact that he was injured in the final accident had anything to do with the decision to discharge him. He had been discharged in 2006 after an incident involving sleeping on the job without any injury, and in 2005 after rear-ending another vehicle without sustaining injury. The evidence submitted by the employer met the statutory burden of supplying reasonable cause for requiring the applicant to resign or be discharged.
NOW, THEREFORE, this
The Findings and Order of the administrative law judge are reversed. The application for unreasonable refusal to rehire under Wis. Stat. 102.35(3), is dismissed. This decision is limited to the issue arising under Wis. Stat. 102.35(3).
Dated and mailed
May 24, 2011
johnsjo . wrr : 185 : 9 ND6 §§ 8.26 ; 8.32
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
cc:
Attorney Aaron N. Halstead
Attorney Courtney R. Heeren
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