ERICH HIMMEL, Complainant

COPPS CORPORATION, Respondent

An examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on October 15, 1985. The examiner concluded that the Respondent discharged the Complainant because he had been arrested, and because it believed he would be convicted, in violation of the Wisconsin Fair Employment Act; and that the offense for which Complainant was arrested was not substantially related to the circumstances of the job from which he was discharged, within the meaning of the Wisconsin Fair Employment Act. Respondent filed a timely petition for review of the examiner's decision. Jill A. Goldy and John S. Schauer, attorneys at law, of Seyfarth, Shaw, Fairweather and Geraldson, Chicago, Illinois, filed a brief on behalf of Respondent.

Based upon a review of the record in its entirety, and after receiving the hearing examiner's impressions of credibility and demeanor of the witnesses, the Labor and Industry Review Commission issues the following:

1. The Respondent is a supermarket doing business in Lacrosse, Wisconsin. The Respondent is owned by the Copps Corporation, headquartered in Stevens Point, Wisconsin. The Respondent's store in LaCrosse is located adjacent to a K-Mart store, and the Respondent's LaCrosse store does business under the name of K- Mart Foods, but it is not legally connected with the K-Mart Corporation.

2. In July 1981, Complainant Erich Himmel began employment with Respondent's LaCrosse store as a part-time bagger/produce clerk with occasional janitorial work (changing light bulbs). His hourly rate as of October 1983 was $3.35. He concurrently attended school while working 20-25 hours weekly for Respondent during the school term. During school vacation periods his hours with Respondent increased.

3. Himmel's duties as a bagger were the bagging of groceries at the checkout counter; occasionally assisting checkers by running to the cashier for change; and carrying groceries out of the store to the vehicles of customers. As a produce clerk he stocked produce in the produce area. He also carried trash out the back service door.

4. Another employe of the Respondent in October 1983 was Al Mazuk, who was employed in a bagger/truck crew position.

5. Himmel's supervisors were Gene Splittgerber, general manager, and Tom Kromke, assistant store manager. On and before October 22, 1983, Splittgerber considered that Mazuk and Himmel were "nice boys," that he had no problems with Himmel, that he liked Himmel, and that Himmel was an average employe. Kromke considered that he had had no personal difficulties with either Himmel or Mazuk on or before October 22, 1983.

6. On Saturday evening, October 22, 1983, Complainant and his coworker/friend Al Mazuk finished their work for the day at Respondent's store, left work and proceeded to drink. large quantities of beer. As they walked along the streets Complainant suggested they stop and rest in a State truck parked on a State parking lot. Mazuk unsuccessfully attempted to hot-wire the vehicle. Mazuk then successfully hot-wired another State truck. They went for a ride in that vehicle for about a half mile when the vehicle stalled, at which point they abandoned the vehicle and began quaffing more beer. Subsequently, they went to the corporate headquarters of the G. Heilemann Brewing Corporation, where Mazuk climbed the company's flagpole and stole the company's insignia flag. Thereafter they took the flag to a party where they displayed it as a souvenir.

7. On Sunday, October 23, 1983, Himmel reported for work as scheduled from 8 a.m. until 1 p.m. While he was there, two police detectives appeared, seeking information concerning the corporate flag. Himmel was unaware that he had been caught, but the detectives suggested that he should return the flag.

8. On October 23, 1983, Complainant did not speak with either of his supervisors concerning the Saturday incidents. He completed his shift and went home.

9. Gene Splittgerber, store manager, did not work on Sunday, October 23, 1983. However, on that Sunday afternoon, Mazuk appeared in the manager's office where Tan Kromke, assistant store manager, was working and stated he wanted to inform Kromke about an incident that happened Saturday night, that he and Himmel were involved in the theft of Heilemann's corporate flag.

10. When Mazuk finished his verbal report to Kromke, Kromke responded, "Yes, it looks like you are in trouble. We will be getting back to you about it after I talk to Gene (Splittgerber)." At that point Kromke surmised that if Himmel and Mazuk had not been caught by the police, Mazuk would not have volunteered this information. Kromke assumed Mazuk and Complainant Himmel were in trouble with the authorities and that their involvement in the flag incident was known to or suspected by the police.

11. On Sunday evening, October 23, 1983, Al Mazuk and Complainant com- municated with one another. However, Mazuk did not inform Himmel that Mazuk had confessed any part of the story to Kromke.

12. Also on Sunday evening, October 23, 1983, Himmel was contacted by the police, informed that Mazuk was at the station, and instructed either to appear voluntarily at the station or a warrant for his arrest possibly would be issued. Himmel voluntarily went to the police station forthwith. While there, he and Mazuk were arrested.

14. Complainant Himmel was not scheduled for work on Monday, October 24, 1983, and he did not appear at Respondent's store that day, nor did he speak with Splittgerber or Kromke that day.

15. On Monday morning, October 24, 1983, Kromke informed Splittgerber that on Sunday Mazuk had advised Kromke that there was a problem involving an incident over the weekend with a flag from the Heilemann Corporation headquarters, that the flag had been stolen and that Himmel was involved.

16. Sometime between 3 p.m. and 4 p.m. on October 24, 1983, Mazuk appeared at Splittgerber's office and requested permission to speak with Splittgerber and Kromke. Mazuk appeared voluntarily and not at the instruction or request of management. Mazuk then informed Splittgerber and Kromke that he and Himmel had stolen a truck as well as a flag. He continued on elucidating the events that occurred Saturday night. Splittgerber responded that he would confer with Walter Geis, personnel director located at Respondent's headquarters in Stevens Point, and thereafter would get back to Mazuk.

17. Following the Monday conference with Mazuk, Kromke assumed that Himmel and Mazuk had been caught by the police and were, therefore, in trouble with the law. Splittgerber surmised that the police had contacted Mazuk and Himmel and assumed that both had been "caught." At this time, neither Kromke nor Splittgerber knew for a certainty that Mazuk and/or Himmel had been arrested. However, Splittgerber and Kromke identified the acts as stealing which they considered to be dishonesty. Splittgerber further surmised that Mazuk had confessed to him because of Respondent's policy emphasizing discharge for acts of theft and dishonesty and that Mazuk was concerned about his employment.

18. Shortly after the meeting with Mazuk, in the same afternoon of Monday, October 24, 1983, Splittgerber contacted Walter Geis, Respondent's personnel director at the home office of Copps Corporation in Stevens Point. Splittgerber informed Geis that an employe, Al Mazuk, had confessed to theft of a corporate flag and a vehicle to Kromke on two occasions, and had implicated Himmel, another employe, and that Splittgerber was present at the second confession. Splittgerber repeated the confessions as reported to him by Kromke and Mazuk. Splittgerber stated that he did not want the pair within the confines of the store because of the dishonest acts, and he recommended termination of both Employes for dishonesty. He assured Geis that Mazuk admitted to both acts. Geis instructed Splittgerber to discharge Mazuk, but to extract a confession from Himmel and if Himmel admitted participation, then Splittgerber should terminate Himmel as well as Mazuk.

19. During the conversation between Splittgerber and Geis, Geis made no inquiry of Splittgerber as to whether Mazuk and/or Himmel had been arrested, charged, indicted, detained, taken into custody or held for investigation. None of such actions were alluded to or discussed during the conversation.

20. In the morning of Tuesday, October 25, 1983, Splittgerber discharged Mazuk during a conference with Mazuk. Splittgerber completed a Change of Status Report and entered thereon the reason for discharge as "Released -- Taking a vehicle without the owner's consent--taking the Heilemann corporate flag from the flagpole without owner's consent."

21. When Himmel reported for work as schedule Tuesday afternoon, October 25, 1983, 'he was instructed to report to Gene (Splittgerber), which he did. Splittgerber began the conference by informing Complainant that he was aware that Complainant and Mazuk had been in trouble during the weekend by stealing a truck, and asked if Himmel had been involved. Himmel admitted he had been and then voluntarily recited all the events, including that he had been "arrested and charged with an OMWOC." He denied stealing the flag. There followed a discussion about the drinking and the level of intoxication. Splittgerber informed Himmel that it was a shame that Himmel had to be released, but that dishonesty was a very serious matter in the Copps Corporation. He emphasized, "Well, you know it's stealing. It's dishonesty and our organization has a policy, and employes who steal, whether it be just stealing in general and dishonesty," are released. Himmel responded that he understood that was why he was being release. As a formality following the discharge, Splittgerber completed a Change of Status form. He asked Himmel what the police had charged Himmel with. Himmel answered "accomplice to OMWOC--operating a motor vehicle without the owner's consent." Splittgerber then entered on the form as reason for the discharge: "Released -- Accomplice to taking a motor vehicle without the owners (sic) consent." Himmel signed the form.

22. At some future date a preliminary hearing was held whereat Complainant pled guilty to the charge of operating a motor vehicle without the owner's consent. He paid a fine and his police record was expunged.

23. When hiring, Respondent makes no inquiry of applicants concerning an arrest record. Moreover, no security checks are made with the police department or private or public investigators to determine arrest records for applicants or employes. During hiring interviews, two who volunteered information that they had been arrested for misdemeanors were hired thereafter. Some individuals who were arrested continue to be employed by Respondent.

24. In the past, four other employes of Respondent have been arrested for off-the- job conduct, but not discharged. Three were arrested for disorderly conduct and the fourth for driving while intoxicated. The conduct did not involve theft of which Respondent was aware.

25. Also in the past, two employes were discharged for theft from Respondent's LaCrosse store. One stole a bottle of Southern Comfort, was discharged and Respondent pressed charges. The second was discharged for eating hotdogs for which he failed to pay, but he was not arrested or prosecuted. A third employe was discharged by Respondent for shoplifting at the adjacent K-Mart store. This employe was charged and convicted and is the only case of off-the-job theft of which Respondent was aware. Nineteen other employes were discharged from other stores of Respondent for theft of Respondent's merchandise and products but only six of these were arrested or prosecuted.

26. Splittgerber equates "stealing" and "theft" with "dishonesty." When Mazuk confessed to Splittgerber and implicated Complainant, Splittgerber considered that taking the vehicle without the owner's consent was theft and therefore dishonesty. He considered that Himmel and Mazuk set a bad example for the other store employes. He felt that he could not tolerate the fact that Complainant as an employe would have access to the back doors, money, inventory, and customers' property when carrying customers' groceries to their cars. He further considered he could not afford to have dishonest employes as he is ultimately responsible for inventory and employe morale. He further considered that he does not want "dishonest" individuals in his employ.

27. Respondent's decision to discharge Complainant; if he admitted participating in either theft of the automobile or the flag was made before Himmel volunteered at the discharge conference that he had been charged with a crime.

28. Complainant was not discharged by Respondent because of an arrest record. Complainant was discharged because Respondent's agents, Gene Splittgerber and Walter Geis, believed on the basis of Splittgerber's investigation with Complainant's coworker, Al Mazuk, and upon Complainant's admission of guilt during questioning by Splittgerber, that Complainant engaged in a dishonest act, i.e., theft.

Based upon the FINDINGS OF FACT made above, the Commission makes the following:

1. Respondent is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Respondent did not discriminate against Complainant because of arrest or conviction record, within the meaning of the Wisconsin Fair Employment Act when Respondent discharged Complainant.

Based upon the Findings of Fact and Conclusions of Law, the Commission makes the following:

That Complainant's complaint herein is dismissed.

Dated and mailed October 29, 1986

/s/ David A. Pearson, Chairman

/s/ Hugh C. Henderson, Commissioner

/s/ Carl W. Thompson, Commissioner

The hearing examiner concluded that Respondent discharged Complainant because its agents, Walter Geis and Gene Splittgerber, believed that Complainant had been involved in two illegal acts of theft. The hearing examiner drew the inferences and conclusions that Respondent also discharged Complainant because Geis and Splittgerber, as Respondent's agents, believed Complainant had been questioned by the LaCrosse Police about the incidents, had been or was likely to be arrested concerning the joy riding incident, and was likely to be convicted of a crime in connection with the incident.

The hearing examiner explained that he inferred that by the time of the discharge Geis, Splittgerber and Kromke "knew (i.e., believed)" that Complainant had been arrested for the (unlawful) conduct. Based on this inference, the examiner inferred that the discharge was in part for the belief of Respondent's agents that Complainant had been questioned by the police, arrest for joy raiding had occurred or was imminent, and conviction was likely.

Two crucial elements of a discharge because of arrest record are: (1) whether the employer has knowledge of the arrest record and (2) whether the discharge was because of the arrest record. A party may not make an inference to establish one element and then build on that inference another inference to establish the second element. Meyer v. Ewald, 66 Wis. 2d 168, 174-176 (1974); citing Yelk v. Seefeldt, 35 Wis. 2d 271, 280, 281 (1967). Nor may the administrative law judge. Moreover there was no evidence independent of the fact of discharge and the inference of the employer's knowledge to establish that the discharge was because of the arrest record.

The examiner drew an inference from Respondent's past practice that Respondent does not have a policy of discharging for off-the-job acts of theft (dishonesty). From this inference the examiner drew the inference that Respondent would not have discharged Complainant on the basis of theft of the flag and car alone without Respondent's belief of police involvement; that it was the police involvement that motivated Respondent.

The Commission disagrees with the examiner's inference that the testimony does not establish that Respondent does not have a policy of discharging for off-the-job acts of theft (dishonesty). Kromke and Geis testified with examples of discharge of employes for theft of Respondent's products. (T. 36, 37, 38, 117-121.) Kromke testified concerning two employes who stole products and were discharged because of the theft. Only one of the two was arrested or prosecuted. Geis testified concerning 19 employes involved in theft all of whom were discharged because of theft, but only 6 were arrested or prosecuted. Kromke and Geis testified concerning discharge of one of Respondent's employes for shoplifting in the adjacent K-Mart store. (T. 37, 47, 48, 117.) This was the only case of theft off-the- job by an employe of which either witness was aware. (T. 121) Respondent's witnesses know of only four other employes who were arrested for off-the-job conduct when employed by Respondent. The conduct did not involve theft and none of the four were discharged. Three of the four were arrested for disorderly conduct and the fourth for driving while intoxicated. (T. 35) In addition, the entire tenor of Splittgerber's testimony emphasizes theft ("dishonesty") and his repulsion of such action. (T. 75-78, 82, 84, 86, 88, 106.) Geis's similar attitude and confirmance of Splittgerber's is established by his testimony. (T. 121-124, 126, 133, 134) Fran the foregoing the Commission is convinced that Respondent does have a policy of discharging for off-the-job theft. Therefore, no inference remains on which to build the inference that police involvement motivated Respondent.

The issue in this case is whether an employer discriminates if the employer discharges an employe because it concludes from its own investigation and questioning of the employe that the employe has committed an offense. In City of Onalaska v. LIRC, 120 Wis. 2d 363 (Ct. App. 1984), review denied, 357 N.W. 2d 560 (1984), the Court of Appeals held that in such circumstances the employer does not discriminate because of arrest record, within the meaning of sec. 111.32(5)(h), Wis. Stats., 1979-80.

It is unlawful discrimination for an employer to discharge an employe because of an arrest record. Sec. 111.321, 111.322(1), Wis. Stats. 1983-84. Section 111.32(1) defines "arrest record" as:

(1) "Arrest record" includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority."

Section 111.335 provides exceptions to the discriminatory actions. An employer may ask an employe information regarding a pending charge. Sec. 111.335(1)(a). An employer may suspend an employe "who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job." Sec. 111.335(1)(b).

At the discharge conference on October 25, 1983, Splittgerber asked Complainant whether Complainant had been involved in stealing a truck during the previous weekend. Himmel admitted that he had been and proceeded to volunteer the details of the incident. He also volunteered that he had been arrested and charged with an "OMWOC." (T. 70) At the end of the conference and after informing Himmel of the discharge, Splittgerber asked Himmel what the "police" had "charged" Himmel with. (T. 15, 16, 53-55, 58, 60-65, 68-70, 82-86, 104, 107.)

Splittgerber's question concerning the "pending charge" occurred after Himmel had been informed he was discharged. Moreover, Himmel himself had just informed Splittgerber that Himmel had been arrested and charged. Therefore, even assuming arguendo that the question was asked before the discharge, the question canes within the sec. 111.335(1)(a) exception.

The next issue is whether or not sec. 111.335(1)(b) is applicable. Exhibit C of Complainant's post hearing brief to the examiner is a photocopy of the complaint filed against Himmel. It is dated November 2, 1983. A criminal charge is "pending" only when it is issued and approved for filing by the district attorney or by a circuit judge. Sec. 968.02. Himmel was discharged October 25, 1983, before he was criminally charged and, therefore, at the time of his discharge he was not "subject to a pending criminal charge" within the meaning of sec. 111.335(1)(b), Wis. Stats. Therefore sec. 111.335(1)(b) is not applicable to this case.

Based on the above analysis, Complainant was not discharged because he had been arrested or because Respondent believed Complainant would be convicted. He was discharged only because Geis and Splittgerber (Respondent's agents who made the decision to discharge) believed on the basis of Splittgerber's investigation with Al Mazuk (Complainant's coworker and co-actor), and upon Complainant's admissions of guilt during questioning by Splittgerber, that Complainant engaged in what Respondent's agents believed to be theft which they equated with dishonesty.

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