MARK GUTKOWSKI, Applicant

BELL LABORATORIES, Employer

HOME INDEMNITY COMPANY, Insurer

On March 5, 1986, an administrative law judge of the Department of Industry, Labor and Human Relations issued a decision which found that respondent unreasonably refused to rehire the applicant, within the meaning of section 102.35(3) of the statutes. The resulting order was interlocutory in nature to reserve jurisdiction to issue such further orders concerning temporary and permanent disability as warranted. Respondent filed a timely petition for Commission review. On September 2, 1986, the Commission issued a remand order for further testimony limited to the amount of lost wages incurred by the applicant during the period of the unreasonable refusal to rehire.

Further hearing was held on April 27, 1987, as specified in the Commission's remand order. On May 12, 1987, an administrative law judge of the Department of Industry, Labor and Human Relations issued a decision which held that respondent unreasonably refused to rehire the applicant, within the meaning of section 102.35(3) of the statutes. The resulting order was final in nature, due to a separate order of December 8, 1986, which dismissed the application as it pertained to the insurance carrier, at applicant's request. Respondent filed a timely petition for Commission review, pursuant to section 102.18(3) of the statutes. Both parties submitted written argument to the Commission.

After reviewing the record and written arguments submitted, the Commission has determined that respondent unreasonably refused to rehire the applicant, within the meaning of section 102.35(3) of the statutes. However, the Commission has also determined that the resulting award should be reduced for the reasons more fully discussed below.

Based upon a review of the entire record in this matter, the Commission makes the following:

The parties stipulated to the injury of January 4, 1985, and to a yearly salary of $19,000 for the applicant. The applicant worked one year and eight months prior to the injury as production manager for a subsidiary of the respondent. His work included running machines, training new employes, and performing general supervisory work.

On January 4, 1985, the applicant injured his hand in a machine accident causing injury arising out of his employment while performing services growing out of and incidental to that employment, within the meaning of section 102.03 of the statutes. He was paid disability until July 22, 1985, when he received medical clearance to work.

After the applicant was released to return to work, he called his supervisor several times about returning to work. He left messages for his supervisor to call him back, but his messages were not returned. Then in late July, respondent informed the applicant that there was no position available. He then applied for and received unemployment compensation benefits, in the total amount of $4,061. Department computer records show that the first week for which he received unemployment compensation benefits was week 30 of 1985 (week ending July 27, 1985).

On September 27, 1985, respondent advertised in the newspaper for an experienced thermal forming machine operator. This was a position with which the applicant was familiar from work performed for a different employer. The applicant saw the advertisement and called respondent several times to apply, but respondent never answered his calls, even though he left messages.

On October 3, 1985, respondent advertised in the newspaper for a position leading to management potential. This was a job with which the applicant was familiar because of past work experience. The applicant saw the advertisement and called respondent several times to apply, but respondent never answered his calls, even though he left messages.

Since July 22, 1985, respondent has hired five or six new employees as packers. The applicant was qualified to perform this work. Respondent did not tell the applicant about these positions when it hired for them.

After the hearing application was filed in November of 1985, the applicant received a call from respondent to discuss possible work. The applicant informed respondent to contact his lawyer. This response did not prevent respondent from discussing the matter with the applicant's attorney or form ultimately offering the applicant employment. No further contact was had between the parties.

Compensation claims for an unreasonable refusal to rehire under section 102.35(3) of the statutes are analyzed as follows. First, the applicant must establish these factors: (1) That he was a statutory employee; (2) that he suffered a compensable injury, (3) that he was able to work, and (4) that the employer refused to rehire him. If the four factors are established the burden shifts to respondent to show that either suitable work was not available which the applicant could perform, or that the respondent had reasonable cause not to rehire the applicant. If respondent meets its burden, the applicant has the opportunity to show that the respondent's asserted reasons are pretextual.

The applicant met his initial burden of establishing the four factors listed above. Respondent asserted two defenses. First, Respondent asserted suitable work was not available. Second, Respondent asserted it had reasonable cause not to rehire applicant due to his unsafe practices at work. As discussed more fully below, the applicant has successfully shown respondent's defenses to be pretextual.

The thermal forming machine operator position was suitable work for the applicant. Respondent contended that this was not suitable work because respondent did not feel the applicant was qualified to perform the job and because the job advertisement was really just a "trial balloon" which was never filled by anyone. However, an inference is raised from the job advertisement that the position was available if the right individual was found. Respondent's failure to even discuss the position with the applicant raises the strong inference that respondent felt that he was not the right person for the job because of his prior work injury.

The management potential position was also suitable work for the applicant. Respondent hired another individual for this job at a wage of $26,000 per year. Respondent's failure to discuss the position with the applicant raises the strong inference that respondent did not consider him for the job because of his prior work injury.

The packer positions were also suitable work for the applicant. Respondent contended this work was not suitable because it paid $4 per hour, which was less than the wage earned by the applicant at the time of injury. However, respondent knew that applicant was qualified to perform the work and respondent should have known from the applicant's unemployment compensation claim that he had not yet found full-time work to replace his full-time job with respondent. These facts in combination with the other refusals, raise an inference that respondent did not wish to rehire the applicant due to his prior work injury.

The applicant also showed that respondent's defense relating to alleged safety violations was pretextual. Many of the alleged violations were made with prior supervisory knowledge and approval. Others were necessitated by worn our or broken equipment of for other good reasons. Furthermore, the violations known to respondent did not result in any discipline and did not prevent respondent from giving applicant pay raises. Respondent also admitted that employees other than the applicant received safety violation warnings, yet still received raises and were allowed to work in other jobs.

The Commission therefore concludes that respondent unreasonably refused to rehire the applicant, within the meaning of section 102.35(3) of the statutes. The next question for resolution is the level of the resulting monetary award.

At the time the applicant was injured, he worked full-time for respondent, on Monday through Friday. He also worked part-time for another employer, Graber, on Saturday and Sunday. The parties stipulated that if there was an unreasonable refusal to rehire, the period of refusal commenced on July 22, 1985.

For the weeks in the period of July 22, 1985 through August 31, 1985, the applicant was totally unemployed. On September 1, 1985, he returned to part- time work with Graber. He was on lay off status with Graber from May 18, 1985, until on or about June 27, 1986, when he was recalled. In some of the weeks, he worked more hours at Grabers (and earned more wages there) than he did while working for Grabers at the time of the injury.

The applicant worked for Wisconsin Cheeseman, Inc., during the approximate period from November 4, 1985 through December 21, 1985. He also received a bonus for this work on or about February 6, 1986. The applicant earned less during each week of work for this employer than he earned with the respondent on a weekly basis at the time of the injury.

The applicant worked for Placon, during the approximate period from January 2, 1986, through March 22, 1986. The applicant earned less during each week of work for this employer than he earned with respondent on a weekly basis at the time of injury. He later received a check as a final payment for overtime. This check was also less than the weekly wage earned with respondent at the time of injury.

Applicant has engaged in a self-employment business since the injury date. This venture has not resulted in any income to date.

At the remand hearing, the applicant said he stopped looking for full-time work to replace the work he had with respondent as of August 9, 1986. He said he received a raise at Grabers and felt he could financially afford to stay home with his children during the week. The Commission has determined that the refusal period should stop on August 9, 1986, when the applicant stopped looking for full- time work to replace the work lost with respondent. The wages lost after that point in time were caused by the applicant's decision not to look for work and not by respondent's refusal to rehire the applicant.

The period of unreasonable refusal to rehire the applicant commenced on July 22, 1985, and ended on August 9, 1986. The resulting award under section 102.35(3) of the statutes is calculated on a week-by-week basis as follows. Each week starts with the fact that the applicant suffered a gross wage loss of $365.38, which represents his stipulated weekly wage amount with respondent at the time of injury. The applicant's net wage loss is then calculated on a weekly basis by subtracting the wages earned with Placon; Wisconsin Cheeseman, Inc.; and the wages earned with Graber which were in excess of the wages earned with Graber at the time of injury. Based upon this formula, the applicant suffered lost wages in the total amount of $15,484.47, from July 22, 1985, through August 9, 1986, such loss being due to respondent's unreasonable refusal to rehire the applicant, within the meaning of section 102.35(3) of the statutes.

Since respondent has not yet offered the applicant suitable work, and since the award granted herein has not yet reached the statutory maximum of one year's wages ($19,000 here), this order will be made interlocutory.

The Commission has determined that the award should not be offset by the unemployment compensation benefits received by the applicant. Section 102.35(3) of the statutes makes no provision for such an offset. Furthermore, the award is not in the nature of back pay, within the meaning of section 108.05(6) of the statutes. Even if the award is considered as back pay, more than 104 weeks have lapsed since receipt of his first unemployment compensation benefit check. Therefore, the pay- back provision of section 108.05 of the statutes, would not apply here.

Attorney's fees are allowed at 20 percent, plus attorney's costs of $79 pursuant to agreement under section 102.26 of the statutes.

NOW, THEREFORE, this

Within ten days from the date of this order, respondent shall pay to applicant, Mark Gutkowski, the sum of Twelve thousand three hundred eight dollars and fifty-eight cents ($12,308.58); and to applicant's attorney, Gregory Meyer, the sum of Three thousand ninety-six dollars and eighty-nine cents ($3,096.89) for fees, and Seventy-nine dollars ($79) for costs. Jurisdiction is reserved for such future findings and awards as are deemed warranted.

Dated and mailed October 30, 1987
ND § 7.34

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

cc:
Gregory Meyer, Attorney
Stafford & Neal

Kenneth T. McCormick, Jr., Attorney
Boardman, Suhr, Curry & Field

140 - CD5560

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