DELORES GREEN, Complainant

WOODMAN'S FOOD MARKETS, Respondent

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 December 19, 1990. Complainant filed a timely petition for review by the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

The decision of the Administrative Law Judge (copy attached) is modified as follows:

The Administrative Law Judge's FINDINGS OF FACT are deleted and the following FINDINGS OF FACT substituted therefor:

1. Respondent Woodman's Food Markets ("Woodman's") is a business which operates retail grocery stores in a number of locations including Madison, Wisconsin.

2. Woodman's is a party to a collective bargaining agreement with the union representing Woodman's employes, which governs terms and conditions of employment of those employes.

3. The collective bargaining agreement in force at Woodman's at the times material herein provides for three different salary schedules on the basis of which employes may be paid. Employes who are willing to accept work assignments on any hours on any days are paid according to salary schedule R-0. Employes who restrict their availability to nights and weekends but who are willing to accept work assignments on any hours or days within that limitation are paid according to salary schedule R-1. Employes who have other or additional restrictions on when they are willing to accept work assignments are paid according to salary schedule R-2. For employes with the same length of service, salary schedule R-0 pays more than salary schedule R-1, which in turn pays more than salary schedule R-2.

4. Complainant Delores Green ("Green") was hired by Woodman's on May 1, 1989 to work at one of its stores in Madison. She was initially assigned work as a bagger ("utility clerk").

5. Green is a member of the Jehovah's Witnesses. She attends church meetings on Tuesday and Thursday nights and Sunday mornings. Green indicated when she was hired that she was not willing to accept work assignments which would conflict with her Tuesday and Thursday night and Sunday morning meetings. She was therefore placed on the R-2 salary schedule. Her initial rate of pay was $4.00 per hour. Had she been paid on the R-0 salary schedule, her rate of pay would have been $4.50 per hour.

6. On May 14, 1989, Green was transferred to the bakery department where she was trained as a clerk. She was also shifted to the R-0 salary schedule at this point, with the result that she was paid a higher rate of pay. Green was shifted to the R-0 salary schedule as the result of an error on the part of Woodman's.

7. On May 19, 1989, Green filed a complaint against Woodman's with the Equal Rights Division, alleging that Woodman's had discriminated against her because of religion in regard to compensation and conditions of employment.

8. Green's performance while in training as a bakery clerk was inadequate. Her trainers found that they had to repeat instructions to her, that she was a little slower than normal, and that she had trouble grasping certain concepts and accepting constructive criticism and improving her performance. Jeff Wegner, the bakery manager, decided to discharge Green based on inadequate performance.

9. Green's charge of discrimination against Woodman's was received by Woodman's in the mail on June 2, 1989. The mail arrives at Woodman's in the very late morning and is initially delivered to the front office before it is distributed.

10. Wegner advised Green that she was discharged shortly before 11:00 a.m. on June 2, 1989. At that time, he had not learned that Green had filed a charge of discrimination against Woodman's.

11. Green's religious creed was not a factor in Woodman's decision on what to pay her.

12. Green's religious creed was  not a factor in Woodman's decision to terminate her employment.

13. Woodman's did not deny Green any pay because of her filing of a charge of discrimination against Woodman's.

14. Green's filing of a charge of discrimination against Woodman's was not a factor in Woodman's decision to terminate her employment.

As modified, the decision of the Administrative Law Judge shall stand as the FINAL ORDER herein.

Dated and mailed January 30, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

The Complainant argues that Woodman's decision to place her on a "restricted hours" salary schedule constituted discrimination against her because of her religion. However, as the Administrative Law Judge pointed out, the decision was not because of Green's religion but because of her unavailability for work on certain hours and certain days. Any employe who was unable to work Tuesday and Thursday evenings and Sunday mornings (or any other such pattern of restrictions) for whatever reason, relating to religious observance or not, would be placed on the R-2 salary schedule. A policy, that employes who will not make themselves available for work assignments at particular times will be paid less than employes who will make themselves available, is completely neutral in terms of religion and does not constitute discrimination because of religious creed.

While the statute imposes an obligation on employers to engage in reasonable accommodation of prospective employes' religious observances and practices unless the employer can demonstrate that the accommodation would pose an undue hardship on the employer's program, enterprise or business, no violation of this requirement was demonstrated here. For one thing, the very existence of an R-2 salary schedule, providing for and allowing the employment of persons who could selectively restrict their availability as they chose, in fact made it possible for persons such as Green to maintain employment while still engaging in all of the religious observances required by their faith. This distinguishes this case from the vast majority of religious accommodation disputes, in which an employer refuses to allow an employe to alter their schedule. For another thing, the pay practices here, which are neutral on their face with respect to religion and religious observance, are provided for in a collective bargaining agreement. Woodman's simply could not have paid Green more than it did, while still allowing her to dictate her own schedule, without violating that collective bargaining agreement. This would constitute an undue hardship.

NOTE: The Commission had no material disagreement with the Administrative Law Judge's findings of fact, and substituted its own findings of fact principally in order to more fully set forth the basis on which the Commission arrived at the same conclusion as the Administrative Law Judge. Additionally, the Commission considered it advisable to correct a suggestion in the findings of fact to the effect that Green suffered a "cut in pay." In fact, Green's pay was never cut; she was simply hired, as an initial matter, onto the R-2 salary schedule. Finally, the Commission wished to delete numerous findings of fact as to what various witnesses testified to, and to substitute therefor findings of fact actually adopting the substance of the testimony. When a witness offers testimony at hearing on a material issue, a finding of fact that "the witness testified . . ." is unsatisfactory, since it merely describes what happened at the hearing and does not resolve the question, of whether what the witness testified to is considered by the trier of fact to be true. Where a witness has testified as to a matter and the Administrative Law Judge accepts the testimony as true, it is preferable for the finding of fact to simply recite the substance of the witness's testimony as a fact found by the Administrative Law Judge.

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