P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BONNIE L DAIN, Applicant

TRAIL ET, Employer

Claim No. 94022322

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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 order in that decision as its own.


The findings and order of the administrative law judge are affirmed.

Dated and mailed September 8, 1995
ND 7.27   7.28

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner


This case arises under sec. 102.35 (3), Stats., which 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.

In an unreasonable refusal to rehire case, an applicant has the burden of proving 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. The reasonable cause may either be that the work injury prevents the applicant from doing available work, or that the discharge was for a reasonable or "intervening" cause unrelated to the injury, such as misconduct, poor performance or a business slowdown.

The supreme court and court of appeals have held that sec. 102.35 (3), Stats., "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). In addition, the law applies even where a worker fired only in part because of the work injury. Great Northern, at 189 Wis. 2d 318-19.

1. Preemption under federal law.

The first assertion in the employer's brief is that the applicant's claim under sec. 102.35 (3), Stats., is preempted by federal Labor Management Relations Act. Generally, if the commission must interpret a collective bargaining agreement to decide an unreasonable refusal to rehire claim, federal labor law preempts application of the statute. Universal Foods Corp. v. LIRC, 161 Wis. 2d 1, 6 (Ct. App. 1991) and Neal & Danas, Workers Compensation Handbook, sec. 7.29 (3d ed. 1990). This general rule derives from Lingle v. Norge Division of Magic Chef, 486 U.S. 399, 108 S. Ct. 1877 (1989), which involved an Illinois employe who was fired after filing a workers compensation claim and then sued her employer on a claim of retaliatory discharge under Illinois law. The supreme court held that application of the Illinois law would be preempted under sec. 301 of the federal Labor-Management Relations Act only if application of the Illinois law required the interpretation of a collective bargaining agreement.

The purpose of preemption in such a case is to ensure that collective bargaining agreements are interpreted under a uniform, certain federal law, rather than a mishmash collection of different interpretations under 50 different jurisdictions. However, the supreme court stated that a state law is not preempted simply because a collective bargaining agreement and a state law claim involve parallel remedies on the same set of facts. "In other words, even if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require precisely the same set of facts, as long as the state law claim can be resolved without interpreting the agreement itself, the claim is independent of the agreement for section 301 preemption purposes." Lingle, at 108 S Ct. 1983.

Thus, under both Lingle and Universal Foods Corp., the simple involvement of a collective bargaining agreement does not result in preemption or non-application of an unreasonable refusal to rehire claim. Rather, interpretation of the agreement must be necessary.

The employer argues that in this case the collective bargaining agreement must be interpreted to determine whether the agreement of the individual employe in addition to the union is necessary to extend a probationary employe under the employer's collective bargaining agreement. The commission disagrees.

First, the employer assumes the union actually agreed to the extension of the probationary period, but that was not established. Rather, the record indicates that the union did not care and left the issue up to the applicant. Since the agreement requires the consent of at least the union or the applicant, and neither consented, there was no mutual consent to the employer's desire to extend the probationary period under either interpretation.

In addition, the ALJ concluded that the real reason for the discharge was the work injury, not her excessive talking or inability to work during winter weather. Thus whether or not the applicant had to consent to the probation extension, the rationale offered for the extension was not reasonable. In this case, therefore, interpretation of the particular contract provision dealing with approval of probation extension is not necessary. The claim under sec. 102.35 (3), Stats., may be resolved without resort to the collective bargaining agreement.

2. Unreasonable refusal to rehire generally.

The employer's next assertion is that the applicant has failed in her burden of proof. The employer concedes that the applicant was an employe and that she had suffered a work injury. However, the employer argues that she failed to show she was not rehired because of the work injury. The employer contends that the applicant was in fact rehired, and that her subsequent separation was caused by her refusal to extend her probation. In short, the employer seems to suggest that the employer did not refuse to rehire the applicant or even really "discharge" her, but that she quit by refusing the extension of the probationary period.

However, the employer was the moving party in changing, or attempting to change, the terms of hire by extending the probation. Further, the applicant was not told that her refusal to agree to the change would result in a quit. The commission is reluctant to hold in this case that the applicant's simple disagreement with the employer's attempt to change the terms of employment amounts to a quit.

In addition, production manager Prahl testified that the applicant was discharged, so the employer obviously did not consider the refusal to agree to an extension of the probation period to be a quit when it happened. Rather, Mr. Prahl's testimony was that the applicant was discharged because she could not do the outside work and because she talked too much.

Moreover, the record contains no documentation to support the employer's allegation of performance problems underlying its unilateral desire to extend the applicant's probationary period. Mr. Prahl testified rather incredibly that the employer does not normally tell its employes about their performance problems in their evaluations. The applicant was never told that by refusing to agree to an extension of her probation she would be fired or to be considered to have quit. Nor is there any documentation of the specific reasons for the discharge two days after the probation extension demand.

Finally, the applicant testified her boss told her when she first returned from her injury that he did not want to take her back. The ALJ found this testimony credible. He also found credible union official Timm's testimony that Mr. Prahl told him that the reason for the extension of the probation was her injury. The employer's assertions that the excessive talking led to the probation extension demand is undercut by the employer's admission that the problem was never mentioned in the applicant's performance evaluations. Further, ordinary winter weather as a reason for the extension and discharge is undercut by the fact that inclement weather during the winter was foreseeable when the employe was hired in January. Under these facts the commission finds the applicant has met her burden of proof under sec. 102.35 (3), Stats., but that the employer has failed in its burden to show reasonable cause for the discharge.

3. Mitigation of damages, other issues.

The employer's final argument is that the applicant failed to mitigate her damages because she could have continued to work for the employer had she accepted the probation extension. However, the employer, not the applicant, acted to end the employment after the applicant indicated that she did not wish to accept the probation extension. According to her unrebutted testimony, that she attempted to talk to the employer's owner after the discharge, but her calls were unanswered.

Lastly, the employer asserts that the administrative law judge told the employer at the hearing that it should have fired the applicant and immediately rehired her, a position the employer finds untenable. However, the commission concludes the administrative law judge was simply making the point he sets out at pages 2 and 3 of his decision: if the employer was only concerned that it had not had enough time to evaluate her outside work performance because of winter weather, it could have rehired her after the weather improved but did not do so. Instead, the employer refused to return the applicant's post-separation calls. Understandably, this led the administrative law judge to conclude that it was not simply the winter weather during her probation period that led to the applicant's discharge.



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