ALLAN J. GRENIER, Complainant

SCOTT PAPER COMPANY, Respondent

The Examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter concluding that the Respondent had discriminated against the Complainant, a male, on the basis of sex in regard to promotion in violation of the Act. Respondent filed timely exceptions. Both parties subsequently submitted written arguments to the Commission.

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

1. Respondent enters into business contracts with the federal government and is thus required to have an affirmative action plan as specified under Executive Order 11246, as amended. The rules and regulations of the Executive Order require that where there are deficiencies in utilization of minority-group employes contractors shall establish specific goals and timetables for the prompt achievement of full and equal employment opportunity.

2. Respondent recognized an underutilization of females in its operatives and craftsmen job categories. Accordingly, in developing its affirmative action goals for 1975, Respondent included the placement of at least one female in the maintenance. department of its Trades Training Program (TTP). There were no females in the TTP. Respondent had placed no restrictions on women preventing them from applying for Trades Training Program positions, but experience showed that only males would apply.

3. Previously in a December 12, 1974 Trades Training job posting, Respondent had announced a need to fill eight regular budgeted positions consisting of two (2) millwrights, two (2) electricians, one (1) piper, two (2) machinists, and one (1) grinderman. The collective bargaining agreement in effect between Respondent and United Papermakers International Union, Local No. 86 provided that actions affecting selections for transfers or promotions shall be based upon seniority and qualifications. Respondent sought permission from the Union requesting that it be allowed to fill one of the positions with a qualified female. However, since this would have required action in disregard of the seniority provisions of the collective bargaining agreement, the Union did not agree to Respondent's request.

4. Thereafter, Respondent filled the eight regular budgeted TTP positions in accordance with the provisions of the collective bargaining agreement. No female was selected for a position.

5. Complainant, a male, had been a candidate for one of the eight regular TTP positions. His seniority date was June 22, 1964. He was not selected for a position although he had passed the test for a TTP position.

6. Subsequently, after further meetings with the union, the Respondent and union entered into a memorandum agreement whereby Respondent was permitted to select and assign the most senior qualified female applicant to a ninth unbudgeted position in the Trades Training Program. This position was for a general trades trainee in Respondent's maintenance department and was created solely in an effort to fulfill Respondent's affirmative action goals formulated under the Federal Executive Order.

7. In March, 1975, Respondent posted a notice for the general TTP position which was for female applicants only.

8. Complainant, who had been unsuccessful in his attempt to obtain one of the eight regular budgeted Trade Trainee Program positions, submitted an application for the general trades trainee position. Respondent rejected his application for the job.

9. Respondent selected one Helga Schuh for the general Trades Trainee Program position. Her seniority date is February 2, 1968. Ms. Schuh, however, elected not to continue on the job after 59 days and exercised her right under the collective bargaining agreement to return to her former job. That job now remains vacant.

10. Respondent continued to post regular job vacancies for Trades Trainee positions subsequent to March, 1975. Complainant applied for and accepted a position as maintenance machinist in April, 1976.

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

2. Complainant has failed to establish that the Respondent discriminated against him on the basis of sex in regard to promotion in violation of the Wisconsin Fair Employment Act.

That Complainant's complaint herein be dismissed.

Dated and mailed January 15, 1981

/s/ Virginia B. Hart, Chairman

/s/ John R. Hayon, Commissioner

The Examiner has relied on the decision in State of Wisconsin v. DILHR (Patzer case) Dane County Circuit Court 12 FEP 1447, May 12, 1977, to support her conclusion of unlawful sex discrimination by the Respondent herein.  The facts in Patzer were that John Patzer, a white male, claimed that the Department of Administration and the University of Wisconsin-Madison discriminated against him by limiting eligibility for application for employment as an apprentice painter at the University of Wisconsin to women and members of specified minority groups. It was pursuant to rule Personnel 27 of the Wisconsin Administrative Code (Pers. 27), which was adopted by the Bureau of Personnel in accordance with an executive order, that the Wisconsin Department of Administration followed a policy requiring the University of Wisconsin maintenance department to hire only women and minorities until their percentage in the maintenance department equaled their percentage in the available community work force.

The court framed the issues in Patzer as follows: "(1) Was the enactment of Pers. 27 a usurpation of the Legislative power contrary to the Wisconsin Constitution?"; and (2) "Is absolute reverse discrimination contrary to the United States Constitution?" However, the facts presented herein do not involve the question of usurpation of legislative authority, nor do they present a showing of absolute "reverse discrimination".

The general trades training position in question here, was established as a result of a memorandum of agreement between the Respondent and the local union to assign a female to the Trades Training Program. Furthermore, such assignment was not made to a regular trades training position -- that is to a trades training vacancy occurring during the regular course of business -- but rather to a position which the Respondent created outside its ordinary business needs. Respondent created this position solely to comply with its affirmative action obligations under Federal Executive Order 11246, as amended. Moreover, male employes continued to be eligible for regular TTP positions as they became available. Such positions continued to be filled by Respondent in accordance with the union contract on the basis of qualification and seniority standing.

Complainant thus cannot be said to have been unlawfully deprived of any promotional opportunities because the position in question would not have existed but for Respondent's affirmative action obligations. Furthermore, Respondent's affirmative action efforts resulted in no obstacle to Complainant's normal promotional opportunities.

We therefore find no unlawful sex discrimination against Complainant. To hold otherwise would impede Respondent's legal obligations to comply with Federal Executive Order 11246 thereby subjecting it to possible sanctions and penalties for noncompliance.

The Commission considers that its reversal of the Examiner's decision in this matter has been made as a matter of law since there is no issue of credibility present.

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