STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
CARRIE S JONES, Applicant
SPRINGS WINDOW FASHIONS DIVISION INC, Employer
WORKER'S COMPENSATION DECISION
Claim No. 1998050798
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. The employer filed a timely petition for review.
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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employer makes wooden Venetian blinds. The applicant began working for the employer in April 1997.
In August 1998, the applicant began working on the CNC machine, which cuts blind slats to size and evidently also drills holes in them. Blind slats are loaded by hand into a hopper; the slats then go into the CNC machine; two arms come down to hold the slats; the operator starts the cutting cycle; the machine cuts the slats; the arms raise; and the operator is to remove the cut-to-size slats from the machine with a piece of louver. The slats are then reloaded into the machine to have the holes drilled or punched into them.
Exhibit 15, which sets out the CNC machine operating procedures, contains the instruction:
"10. Clean out pieces using a piece of louver - DO NOT USE HANDS."
In connection with the drilling process, the procedures in Exhibit 15 states:
"16. Press cycle start button to start punching process.
Note: if any problems occur press cycle stop button."
The applicant was trained on the CNC machine in August 1998. According to Tom Glenetzke, a department supervisor, the training emphasized safety, and included the general rule "Never place your hand in the machine except when the machine is locked out." The applicant and lead worker Melanie Meyer agree that Mr. Glenetzke emphasized that point in training.
On the day the applicant was trained on the CNC machine, shortly after the training had been completed, Mr. Glenetzke encountered the applicant putting her hand inside the machine to clear out debris. He reminded her of the training she had just completed, and that she was never to put her hands inside the machine. The applicant assured Mr. Glenetzke she would not do so again.
The applicant injured her hand while operating CNC machine on September 8, 1998. Evidently, one of the arms that held the slats into place for cutting did not engage properly. The applicant pushed down on the slat or rail with one finger, and the arm engaged, pinching her finger. The accident occurred in the loading process, before the applicant began the actual cutting process. The applicant needed stitches in her finger.
When the applicant returned to work, and explained how the injury occurred, Mr. Glenetzke fired her, citing step 10 in the CNC operating procedures (quoted above.) Mr. Glenetzke specifically testified that the work injury itself was not a factor in the decision to fire the applicant.
The applicant filed a claim under Wis. Stat. § 102.35 (3). That section provides as follows:
102.35 (3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within the employe's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year's wages....
The "unreasonable refusal to rehire" statute applies to unreasonable discharges following a work injury, as well as simple failures to rehire. (1)
In an unreasonable refusal to rehire case, a worker has the burden of proving he or she was an employe with a compensable injury who was denied rehire or discharged. The burden then is on the employer to show reasonable cause for the failure to rehire or for the discharge. (2)
An employer must provide evidence showing to a reasonable degree of medical certainty
that the worker cannot perform his or her old job or other available work, if it refuses
to rehire a worker for that reason. (3) The
supreme court and court of appeals have held that Wis. Stat. § 102.35(3) "must be
liberally construed to effectuate its beneficent purpose of preventing discrimination
against employes who have sustained compensable work-related injuries." Great
Northern Corp. v. LIRC, 189 Wis. 2d 313, 317 (Ct. App., 1994), citing West
Allis School Dist. v. DILHR, 116 Wis. 2d 410, 422 (1984).
The applicant contends that she was discharged at least in part because of her work
injury, and so not for a reasonable cause. She questions the asserted basis for her
discharge, a violation of "rule 10," noting that she was injured when she was
not yet at the point in the production process involving step 10 (cutting the slats) or 16
(punching the slats). Instead, she was at the earlier stage of loading the slats, step 8
in the process. See exhibit 15.
The employer's witnesses agree that the applicant was injured at step 8, and that rules 10 and 16 dealt with later stages in the process. Mr. Glenetzke also admitted the written rules (or CNC operating procedures) need to be changed to avoid confusion. However, Mr. Glenetzke, Ms. Meyer and the applicant herself all acknowledged that Glenetzke's training included the dictum to never place one's hands inside a machine unless it was locked out.
In the commission's view, this case turns on the credibility of Mr. Glenetzke's testimony that the applicant's injury played no role in the termination. On the one hand, the fact the applicant was only verbally reprimanded after the first violation (which did not involve injury) and fired after the second (when she was injured) is undeniable. On the other hand, in addition to direct observation, an employer is quite likely to find out about a safety rule violation after an injury. It is not surprising that a violation of a safety rule coincides with an injury; that coincidence in this case is not enough to conclude that the rule violation was a pretext for an unreasonable or illegal discharge. Further, the difference in the discipline meted out, a verbal reprimand versus a discharge, can be explained by the fact that the second violation was a second violation, occurring only about one month after the first and after the applicant had admittedly promised not to place her hand inside the machine again. Finally, the injury in this case is relatively minor, not the kind likely to generate a retaliatory discharge.
In sum, the commission is satisfied that the employer has met its burden of showing it reasonably discharged the applicant based on a safety violation. The applicant's claim under Wis. Stat. § 102.35(3) must therefore be dismissed.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
ORDER
The findings and order of the administrative law judge are reversed. The application is dismissed.
Dated and mailed July 30, 1999
jonesca.wrr : 101 : 3 ND § 7.32
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The ALJ found an unreasonable refusal to rehire. He noted that there was no actual violation of step 10. He also found that while the applicant was fired in part for violating the more general rule against putting one's hands in an energized machine, the work injury itself also was a factor in the termination. On this point, he noted the applicant had not even received a written warning for the hands-in- machine violation when she was not injured, but was fired after the hands-in- machine violation when she was injured. Citing Great Northern v. LIRC, 189 Wis. 2d 313 (Ct. App., 1994), the ALJ concluded that as long as the injury played some part in the discharge decision the employer was liable for an unreasonable refusal to rehire under Wis. Stat. § 102.35(3).
As explained above, however, the commission finds credible Mr. Glenetzke's testimony that the work injury played no role in the employer's decision to discharge the applicant. Thus, Great Northern is inapplicable in this case.
cc: ATTORNEY WILLIAM A WULF
AMENT WULF & FROKJER SC
ATTORNEY THOMAS R CRONE
MELLI WALKER PEASE & RUHLY SC
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Footnotes:
(1)( Back ) Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App., 1982).
(2)( Back ) This "very correct standard" set out by court in Dielectric was adopted by the supreme court in West Bend v. LIRC, 149 Wis. 2d 110, 121 (1989) which specifically stated that "after an employe shows that she has been injured in the course of employment and subsequently is denied rehire, it becomes the burden of the employer to show reasonable cause for not rehiring the employe." West Bend, at 149 Wis. 2d 123. See also Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118, 123 (Ct. App., 1994).