STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
BART GOERL, Complainant
APPLETON PAPERS, INC., Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 8802099,
An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on May 16, 1991. Complainant filed a timely petition for review by the Commission and both parties submitted written arguments.
Based on a review of the record in its entirety, the Labor and Industry Review Commission hereby issues the following:
ORDER
The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.
Dated and mailed October 22, 1992
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ James R. Meier, Commissioner
MEMORANDUM OPINION
Whether the circumstances of a criminal offense are "substantially related" to a particular job requires "assessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed . . . It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 824, 407 N.W.2d 908 (1987). (emphasis added)
With respect to "the opportunity for criminal behavior" in Bart Goerl's job, the record revealed that there was significant opportunity for such behavior, clearly more than in most jobs. Although Appleton Papers staffs each machine with five crew members on each shift, the mill manager testified that "When a machine is up and running, it's not as critical that all of the crew be there. They are free individually, but not all at one time obviously, to go to the restroom, to go to the lunchroom, perhaps the locker room, sometimes perhaps talking with somebody in another area or at the next machine. They are not chained to the machine in that sense eight hours a day." (TR 181) The manager estimated that on an average day employes have free time for approximately 40-50% of the shift. (TR 182-183) The manager estimated that the average day, when the machine is operating properly, occurs approximately 80-85% of the time. (TR 185) The manager explained that despite this large amount of free time, Appleton Papers deliberately overstaffs their machines so that they will have the needed staff when a machine breaks down, when they are starting up the machine, shutting down the machine or evaluating a particular problem. (TR 185- 186) He stated "Even though [a crew member is] not required 24 hours a day on a regular basis, it's very good practice to keep that person on board because you'll get the payoff when we do need that person. So rather than run short all the time, we felt that that's the best way to operate the machine, the most efficient, even though it doesn't make a hundred percent us eof every person all the time." (TR 186)
In addition to the substantial amount of free time available to employes during an eight-hour shift, the supervisor floats throughout the mill during his or her shift and, as a result, has only intermittent contact with the machine operators and other crew members. In fact, the mill manager testified that there are only two supervisors responsible for 35 employes and estimated that a supervisor may be near one particular paper machine only 25-30% of an average shift, as their duties take them throughout the mill. (TR 179-80) He testified that during "an average day if the paper machines are running properly," there would be "substantial portions of any one day that the supervisor would not be in the area of a particular machine." (TR 181) Goerl confirmed at the hearing that his supervision was sporadic:
"Q Isn't it correct that your immediate supervisor had duties that took him throughout the mill?
A Yes.
Q And isn't it true that it would be only - if the machine was running properly, your immediate supervisor wouldn't be in the area actually observing your performance, he would only be there sporadically doing that; isn't that correct?
A Yes." (TR 31)
Goerl also testified that the supervisor "would get there sometime during the eight- hour period." (TR 32)
In view of the unusual amount of free time afforded Goerl in this position, as well as the size of the mill and the intermittent supervision he received, it is reasonable to conclude that the "opportunity for criminal behavior" is ripe in this situation. In an earlier case before the Commission, Black v. Warner Communications (LIRC, July 10, 1989), a case involving the crime of delivery of drugs, as is involved in this case, the Commission found that the employe's job as a door-to-door salesman afforded him significantly more contact with others than was normal for most jobs and more freedom from supervision than was common. Although a door-to-door salesman clearly operates more independently than even Mr. Goerl, the Commission believes that the two cases are generally analogous and that the underscored portion of the following conclusion made by the Commission in Black also applies to this case:
"The Commission has concluded that the offenses of possession of cocaine with intent to distribute and distribution of cocaine are substantially related to the occupation of being a door-to-door salesman for Warner Cable not merely because both offenses and the job involve selling . . ., but principally because the circumstances of the job are such that it would present a particular opportunity, and thus a potential temptation, for a person with a demonstrated inclination to engage in conduct such as the sale of illegal drugs." Black, Mem. Op. At p. 3. (emphasis added)
In addition to the opportunity for criminal behavior, the supreme court in County of Milwaukee, also emphasized "the reaction to responsibility, or the character traits of the person." County of Milwaukee at 824. The character traits revealed by Goerl's conviction of being party to delivery of cocaine include untrustworthiness, extremely poor judgment, a lack of concern for the welfare and well-being of others, a lack of understanding or acceptance of the grave personal and social repercussions of dealing drugs, self-centeredness in the extreme, a propensity to do whatever is necessary either to support a cocaine habit or to sell cocaine for cash for other reasons, and an unwillingness to comply with laws, rules, and limits. While Goerl's attorney argues in his brief that Goerl is ". . . a naive individual who obtained drugs on behalf of a friend who unbeknownst to him was an undercover police officer" (Goerl's Brief, p. 3) and also that "there was no testimony during the course of the hearing showing a propensity on the part of Goerl to commit this crime during the future" (Goerl's Brief, p. 3), the Commission believes the record reveals otherwise.
Goerl admitted in depositions (although he unconvincingly attempt to retract it at the hearing) that he sold drugs to support his own cocaine habit:
"Q Isn't it true that to help you afford to buy the cocaine that you used, you would put people together who wanted cocaine with people who had it so you could get a cut of the cocaine?
A Oh, that's - yeah. That's the practice that's used in order to afford us the product." Respondent's Exh. 4, p. 68.
Goerl also admitted that he had "slipped" after he completed an inpatient drug rehabilitation program in1986. (TR) He defined "slipped" as follows:
"slipped means I was at some place where cocaine was at and I almost used it. Slipped, you know, where I almost went and used cocaine." (TR 68)
Goerl also admitted at the sentencing hearing that he had told his probation agent a few weeks earlier that the reason he used drugs ". . . was because of the excitement of cocaine . . ." (Sentencing Transcript 22-23) He stated at the sentencing hearing on July 5, 1988 that he was, at that time, 28 years old, and that he had had a "drug problem" (his own characterization) since he had been 15 years old. (Sentencing Transcript 14) Finally, Goerl testified that he used so much cocaine that "I came close to killing myself several times . . . I used to use cocaine to the point where I almost passed out." (Sentencing Transcript 24)
By his own testimony and admissions, Goerl appears to be anything but "a naive individual who obtained drugs on behalf of a friend . . ." In addition, the other evidence in the record reveals that Goerl was involved in the drug trade to the extent that he was able to help a stranger obtain cocaine virtually on demand and was willing, even eager, to use his connections to help the individual obtain cocaine a second time. These are not the actions and responses of a "naive individual". Likewise, his apparent extreme addiction to cocaine significantly increases the risk that he would begin to sell it again. In view of Mr. Goerl's lengthy history of drug abuse, his intense cocaine habit and his involvement in the drug trade as a dealer prior to being discharged, the Commission is unable to accept Goerl's assertion that the record establishes no propensity for repetition of the actions which led to his termination. Unfortunately for Mr. Goerl, and despite his protests to the contrary, the Commission concludes that the relevant testimony and other evidence support the conclusion that there is a propensity on the part of Mr. Goerl to repeat the acts which led to his termination.
Goerl also argues that "prior sale of drugs, dangerous machinery, a large workplace, [and] lack of supervision, should be irrelevant in the decision whether a crime is substantially related to employment unless there is evidence of a risk of repeat criminal conduct." (Goerl's Brief, p. 4) Yet it is precisely those factors, in view of the criminal traits revealed by a conviction for drug dealing, which do establish the likelihood of a recurrence of such behavior.
Evaluating the opportunity for criminal behavior, the absolute priority on safety in the workplace, the multitude of negative character traits associated with a convicted drug dealer, Goerl's admitted cocaine habit, and the resulting propensity for criminal behavior, it is reasonable to conclude, as the Commission did in Black, that Goerl's workplace would provide "a potential temptation for a person with a demonstrated inclination to engage in conduct such as the sale of illegal drugs." Id. At 3. This necessarily leads to the conclusion also reached by the Commission in Black, that the opportunities created by the circumstances of the job, here the significant amount of free time, sporadic supervision and enormity of the workplace, are significant enough to legitimately hold that there is a "substantial" relationship between the circumstances of the offense and the circumstances of the job, as that exception is contemplated in sec. 111.335(1)(c), Wis. Stats. The Commission believes that the Administrative Law Judge correctly applied the substantial relationship exception in this case.
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