DANIEL E. LEAL, Complainant
INTERNATIONAL UAW, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development 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 now makes the following:
1. The respondent International United Auto Workers ("International UAW") is an international labor organization. It charters local unions, and it establishes policies and practices for such locals.
2. UAW Local 578 ("Local 578") is a local union of the International UAW. Local 578 is part of Region 4 of the International UAW. Local 578 serves as the collective bargaining representative for employees of Oshkosh Truck Corporation ("OTC").
3. As of early 2012, complainant Daniel Leal was an employee of OTC, and a member of Local 578. Leal had been an employee of OTC for approximately 17 years.
4. Leal describes his creed as "Lutheran - Missouri Synod."
5. During the years he worked at OTC, Leal had disagreements and conflicts with OTC, and he was disciplined by OTC on several occasions.
6. In addition, during the years he was a member of Local 578 and the International UAW, Leal had conflicts with them. He frequently expressed disagreement, often in the form of letters, with things done by Local 578 and the International UAW. Among others, Leal sent such letters to Perry Graves, a Local 578 president, and to International presidents. In these cases, Leal felt strongly that he was right and that Local 578 and the International UAW were wrong.
7. One of the things that Leal disagreed with the union about had to do with what Leal referred to as "discrimination" in classification and seniority of electricians and millwrights and other skilled trades workers. Other things Leal complained about over the years included (but were not limited to) safety and injury issues, how the union was being run and whether the union's constitution was being followed, whether work orders were being signed off on, whether employees were being fired because other union people lied, whether Leal was represented adequately considering the union dues he paid, whether union dues should be required, and whether grievances filed by Leal were handled properly by the union.
8. In his letters and other communications with Local 578 and the International UAW about his disagreements with them, Leal did not say anything about his creed or about his being a Lutheran, and he did not say anything about his disagreements with Local 578 and the International UAW having to do with his creed.
9. In his letters and other communications with Local 578 and the International UAW about his disagreements with them, Leal did not say anything to the effect that he believed discrimination in violation of the Wisconsin Fair Employment Act was occurring and that he was opposed to such discrimination.
10. On February 7, 2012, Leal was suspended by OTC based on a charge that, in a conversation with his supervisor, Leal had made a statement that he would bring a gun in to put an end to the issues they were discussing, and that he would "bring a gun in and this will be the end of this."
11. A meeting was scheduled to be held on February 15, 2012, with Leal and representatives of both OTC and Local 578, to review and discuss Leal's alleged statements to his supervisor.
12. Usually when a person was suspended and a meeting was scheduled to be held between OTC and Local 578 representatives about what the outcome would be, representatives of Local 578 would meet with the employee before that meeting to prepare. The representatives of Local 578 who were going to be representing Leal did not meet with him before the February 15, 2012 meeting. The reason for this was, that the meeting was held off company property, at the insistence of OTC, based on its allegation that Leal had threatened to bring a gun to work.
13. In the February 15, 2012 meeting between him and OTC and Local 578 representatives, Leal denied that he had made the statements it was alleged he had made, and he asserted that the supervisor had misunderstood what he said, and that what he actually said was, "I'm going to go over your head again."
14. At the conclusion of the February 15, 2012 meeting, the representatives of OTC informed Leal and the representatives of Local 578 that Leal was discharged effective immediately.
15. Leal expressed to Local 578 his view that he did not believe that his discharge was fair or just. Local 578 assigned a steward to Leal. The steward filed a grievance on Leal's behalf. Leal read the grievance and signed it before it was submitted. He thought the grievance was done correctly and properly.
16. OTC rejected the grievance about Leal's termination at each step of the grievance procedure, up to the point in the grievance procedure at which the next step open to the union was to take the grievance to arbitration.
17. On May 15, 2012, after the point at which OTC had rejected Leal's grievance, Leal wrote a letter to Joe Preisler, a representative of Local 578, asking for a copy of the OTC answer to his Step C termination grievance, and "also a copy of the minutes of the meeting that the Local 578 board agreed to take this to arbitration including the dates." Leal's letter also contained complaints about the way Local 578 had handled certain matters in the past.
18. In his May 15, 2012, letter, Leal did not say anything about his being a Lutheran or about his or anyone else's creed, and he did not say anything about his disagreements with Local 578 and the International UAW having to do with his creed. He also did not say anything to the effect that he believed discrimination in violation of the Wisconsin Fair Employment Act was occurring and that he was opposed to such discrimination.
19. A union committee met on June 25, 2012 and decided not to take Leal's grievance to arbitration. This committee was composed of Ted Dever, a representative of Region 4 of the International UAW, Jim Brock, a representative of UAW Local 833 (Kohler Company), and Mike Roth, a representative of the UAW Local at the Sunstrand Company in Illinois. Perry Graves, a former president of Local 578 with whom Leal had had conflict in the past, did not participate in the decision on whether to advance Leal's grievance to arbitration.
20. On December 11, 2012, Leal sent a letter to the president of the UAW International. This letter apparently had to do with the decision on whether to submit Leal's grievance to arbitration and with other complaints. Leal's letter was referred to Region 4 of the International. On January 30, 2013, Ronald McInroy, Director of UAW Region 4, sent Leal a response.
21. There was nothing in McInroy's January 13, 2013 response to Leal concerning Leal's (or anyone else's) creed, and there is no reason to believe that anything McInroy wrote in that letter, or any act or decision of the UAW referred to in that letter, was motivated to any extent by Leal's creed , or by any belief that Leal was complaining or had complained about any form of discrimination covered by the WFEA.
22. At some point after the June 25, 2012 committee decision not to take Leal's grievance to arbitration, Leal "filed an internal procedure with the International UAW to have [his] grievance reinstated." Eventually the International UAW informed Leal that they were going to investigate. In October 2013, well after the complaint in this matter was filed, there was a hearing with two individuals from the International UAW. Leal was given the opportunity to speak at length and to present documents. As of the date of the hearing in this matter (January 23, 2014), no decision had been made by the International UAW on Leal's request to have his grievance arbitrated.
23. Prior to filing his complaint in this matter, Leal never said anything to any representatives of Local 578 or the International UAW about being a Lutheran, or about his creed, and he never said anything to them which would have led a reasonable individual to think that Leal had any particular creed or that his disagreements with Local 578 and the International UAW had anything to do with any creed. The representatives of Local 578 and the International UAW who dealt with Leal never had a belief or understanding that Leal had any particular creed, or that Leal's disagreements with Local 578 and the International UAW had anything to do with any creed.
24. Prior to filing his complaint in this matter, Leal never said anything to any representatives of Local 578 or the International UAW about believing that discrimination in violation of the Wisconsin Fair Employment Act was occurring and that he was opposed to such discrimination, and he never said anything to them which would have led a reasonable individual to think that Leal had any such belief or that his disagreements with Local 578 and the International UAW had anything to do with any such belief. The representatives of Local 578 and the International UAW who dealt with Leal never had a belief or understanding that Leal believed that discrimination in violation of the Wisconsin Fair Employment Act was occurring and that Leal was opposed to such discrimination, or that Leal's disagreements with Local 578 and the International UAW had anything to do with any such belief.
25. The representatives of Local 578 and the International UAW who dealt with Leal never made any decision or took any action regarding their representation of Leal because of any belief or understanding about Leal's creed.
26. The representatives of Local 578 and the International UAW who dealt with Leal never made any decision or took any action regarding their representation of Leal because of any belief or understanding that Leal believed that discrimination in violation of the Wisconsin Fair Employment Act was occurring and that Leal was opposed to such discrimination.
Based on the Findings of Fact made above, the commission makes the following:
1. The International UAW is a labor organization within the meaning of the Wisconsin Fair Employment Act ("WFEA"). Local 578 of the UAW is a labor organization within the meaning of the WFEA.
2. Complainant Daniel Leal has a religious creed, Lutheranism.
3. Leal has a system of philosophical, social and political values and beliefs about labor unions. This system of beliefs is not part of Leal's religious creed of Lutheranism, and it is not a "creed" within the meaning of Wis. Stat. § § 111.32(3m).
4. Leal did not engage in any opposition to discrimination under the WFEA, within the meaning of Wis. Stat. § 111.322(3).
5. There is no probable cause to believe that either Local 578 or the International UAW discriminated against Daniel Leal because of creed, within the meaning of Wis. Stat. § § 111.321 and 111.337.
6. There is no probable cause to believe that either Local 578 or the International UAW discriminated against Daniel Leal because he had opposed any discriminatory practice under the Wisconsin Fair Employment Act, within the meaning of Wis. Stat. § 111.322(3).
Based on the Findings of Fact and Conclusions of Law made above, the commission now issues the following:
The complaint in this matter is dismissed.
Dated and mailed
March 19, 2015
lealdan_rrr : 110 : 126 133
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The administrative law judge concluded that there was no probable cause to find discrimination in this case because Leal failed to establish that anyone knew of his creed and because he failed to establish that he ever opposed any discriminatory practice under the Wisconsin Fair Employment Act. Based on the findings of fact made above, and for the reasons stated herein, the commission agrees with these conclusions. (1)
What Is Leal's Creed? -
To evaluate Leal's assertion that he was discriminated against because of his creed, it is necessary first to determine whether he had a "creed" within the meaning of the Wisconsin Fair Employment Act.
The WFEA provides that for purposes of the Act, "creed" means:
a system of religious beliefs, including moral or ethical beliefs about right and wrong, that are sincerely held with the strength of traditional religious views.
In his complaint, and at the hearing, Leal identified his creed as Lutheranism. Leal testified that his beliefs as a Lutheran were, that you should treat everybody fairly, know the difference between right and wrong, stick up for others, live a life which is true and honest and follow the rules, live life to respect and honor people, follow what was taught in the Bible and confirmation class, tell the truth and live a happy, fulfilling life, and do not lie and cheat.
Leal's description of Lutheranism conspicuously omits any mention of its fundamental doctrines and sacraments. Nevertheless, common knowledge can be relied on to conclude that Lutheranism, a long-established religion, is certainly a "creed" under the WFEA.
Determining what Leal's creed is, is complicated by the fact that Leal also testified to certain other beliefs he had. These beliefs had to do with unions, and with union dues. He testified to believing that he should have been better represented for the dues he had paid, that once you get in a union it does not do anything for you once it starts getting your dues, that union dues should not be required, and that unions were frequently doing things that were going against what most people think is right or wrong.
At times Leal seemed to be suggesting that his beliefs about unions were part of his Lutheran creed. However, Leal testified that as a Lutheran he was not taught anything about unions or how they operate. This indicates that his views about unions and about whether what they did was right or wrong, were not themselves part of his Lutheran religious creed. This is also indicated by the fact that in his interactions with representatives of Local 578 and of the International Union regarding whether he agreed with what they were doing, Leal did not mention his Lutheranism.
The term, "creed," as used in the Wisconsin statute means not a system of political philosophy or beliefs but a system of religious beliefs. Augustine v. Anti-Defamation League of B'nai B'rith et ano., 75 Wis.2d 207, 215, 249 N.W. 2d 547 (1977).
The commission concludes that Leal's system of beliefs about labor unions was not part of his religious creed of Lutheranism, and was itself not a "creed" within the meaning of the Wisconsin Fair Employment Act, but was a system of philosophical, social and political values held by Leal apart from his Lutheran religious views. Therefore, even if the respondent International UAW or any of its representatives made decisions or took actions relative to the representation of Leal which were adverse to him, and did so because of Leal's beliefs about labor unions, this would not have been discrimination "because of creed" within the meaning of the Wisconsin Fair Employment Act.
In any event, as discussed below, even if Leal's beliefs about labor unions is considered to be a religious "creed" within the meaning of the Wisconsin Fair Employment Act, the commission would not find discrimination against Leal on the basis of "creed," because the record does not establish that the union or its representatives ever knew of either Leal's creed of Lutheranism, or his "creed" concerning unions.
Did Leal Engage in Oppositional Activity? -
To evaluate Leal's assertion that he was discriminated against because of his opposition to discrimination, it must be determined whether he ever "opposed any discriminatory practice under [the Wisconsin Fair Employment Act]."
In his petition, Leal asserts in response to the ALJ's conclusion of law that he did not oppose a discriminatory practice, "I don't know the law but I have commonsense and think if I sent over 40 letter to the International UAW that shows I oppose discriminatory practice." However, opposition to practices which are discriminatory under the WFEA, is not established merely by showing disagreement or opposition. It must be shown that there was opposition to some practice which would be a kind of discrimination prohibited under the WFEA. The commission finds no persuasive evidence in the record that Leal ever complained to Local 578 or the International UAW, or their representatives, that he believed discrimination within the scope of the Wisconsin Fair Employment Act, was occurring. The only complaints about "discrimination" that Leal made or claimed to have made, appear to have been about alleged "discrimination" between different classifications of workers - for example, "electrician and millwright classification discrimination between different types of workers."
No Knowledge Of Creed Or Opposition -
In order to violate the prohibition against retaliation, the alleged violator must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. If it does not have such a belief, it obviously cannot be motivated by such a belief in conduct it undertakes. Thus, it is an essential element of a claim of retaliation that the complainant prove that the alleged violator was aware that the complainant engaged in protected activities. Cangelosi v. Larson & Associates, ERD Case No. 8821554 (LIRC, Nov. 9, 1990). The same principles necessarily apply to other areas of the WFEA's protection, such as the prohibition against discrimination because of creed: if the alleged violator does not have a belief that an individual has a particular "creed", it obviously cannot be motivated by such a belief in conduct it undertakes towards that individual.
Based on its review of the evidence in the record, the commission is persuaded that, until the complaint was filed in this matter, neither Local 578 nor the International UAW had any belief or understanding that Leal had any particular creed or system of religious beliefs. The commission is also persuaded that, until the complaint was filed in this matter, neither Local 578 nor the International UAW had any belief or understanding that Leal believed that alleged discrimination under the WFEA was occurring, or that Leal was attempting to oppose any such discrimination.
Leal acknowledged repeatedly at the hearing, that letters he wrote in incidents over the years involving his disagreements with his union, said nothing specific about religious beliefs and nothing about supposed discrimination on the basis of creed under the WFEA.
Leal also acknowledged repeatedly, that he never came out and said he was Lutheran. He testified that he never outright told anyone with the International UAW that he was a Lutheran, and that the fact that he was Lutheran never came up with anyone from the Local. (2) He acknowledged, that he did not know if anyone from the International UAW would have known that he was Lutheran, and that he did not know if anyone from the Local knew that he was Lutheran. He acknowledged that he did not know what about his actions would have told the union committee which voted on arbitrating his grievance, that he was Lutheran as opposed to having another creed.
Leal also acknowledged that he didn't recall ever saying to anyone in either the Local or the International, that he thought he was being treated poorly because of his religious beliefs. He affirmatively testified, that he did not indicate to the union that he thought he was being handled differently or not represented properly because of religious beliefs.
Leal also acknowledged, that no one from the International UAW ever made any comments about him being a Lutheran, and that the union never raised the subject of his Lutheran beliefs or discussed them with him in the grievance process.
The evidence offered by the International UAW's witness confirmed, that these matters were simply not in anyone's mind at the time. Behrensprung, an International Servicing Representative involved with the occurrences in this case, and a Lutheran himself, testified that none of Leal's communications, either verbal, written, or in person, led him to conclude that Leal was of the Lutheran faith - in his own words, he had no idea of that whatsoever. He further testified that he did not have any conversations or communications with anybody else from the International UAW opining or commenting on Leal's religious beliefs. He was well aware of Leal's conflicts with Graves, the former local union president, but testified that at no time over all those years did Leal ever bring up religious differences as being part of his conflict.
Furthermore, the evidence simply will not support the finding that Local 578 or the International UAW ever had the understanding that Leal was opposing practices which Leal believed were discriminatory under the Wisconsin Fair Employment Act. As noted above, nothing in Leal's testimony indicates that he ever told a union representative that. Nothing in Behrensprung's testimony even hints that he ever believed that. There is, in short, a total lack of evidence supporting a charge of discrimination because of opposition to discrimination under the WFEA.
Conclusion -
As described above, the record persuades the commission that Leal never communicated anything to any representative of Local 578 or the International UAW concerning his creed, or concerning any belief on Leal's part that discrimination within the meaning of the WFEA was occurring -- and more significantly, that no representative of Local 578 or the International UAW ever thought that he did. On that basis, the commission is persuaded that neither Local 578 or the International UAW engaged in any discrimination against Leal because of those things - because they had no awareness of the things which Leal asserts he was discriminated against because of. Therefore, the commission agrees that there is no probable cause to believe that either Local 578 or the International UAW discriminated against Daniel Leal because of creed, within the meaning of Wis. Stat. § § 111.321 and 111.337, and that there is no probable cause to believe that either Local 578 or the International UAW discriminated against Daniel Leal because he had opposed any discriminatory practice under the Wisconsin Fair Employment Act, within the meaning of Wis. Stat. § 111.322(3).
NOTE: During the hearing, the ALJ refused to receive a large number of documents into evidence. In his petition for review, the complainant has not argued that any of these rulings on admission of exhibits were erroneous. In the absence of any express challenge to these rulings, the commission will not revisit them here. See, Dude v. Thompson, ERD Case No. 8951523 (LIRC Nov. 16, 1990).
In that regard, though, the commission would note that a review of these excluded exhibits satisfies it, that even if the documents had been admitted and considered in deciding the case, it would not result in any change in the outcome. There was nothing in the excluded exhibits that provides any basis to believe that any representatives of the respondent union (International UAW), or Local 578 for that matter, ever gave any thought to Leal's creed, or ever understood Leal to be raising a claim of discrimination under the Wisconsin Fair Employment Act.
cc:
Attorney Sandra G. Radtke
Editor's Note: affirmed Leal v. LIRC, No. 2014CV245 (Wis. Cir. Ct. Fond du Lac Cnty. Jan. 5, 2015).
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