DAVID J. PIOTROWSKI
     and
RENEE WEINSHEL, Complainants

MILWAUKEE BOARD OF SCHOOL DIRECTORS, Respondent

An examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on December 14, 1983. Complainants filed a timely petition for review of the examiner's decision and all 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:

That the attached decision of the examiner is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed May 2, 1985

/s/ David A. Pearson, Chairman

/s/ Hugh C. Henderson, Commissioner

In affirming the examiner's decision of no unlawful race (caucasian) discrimination the Commission finds that the recently decided United States Supreme Court's decision in Firefighters Local Union No. 1784 v. Stotts, 467 U.S. ___, 104 S. Ct. 2576, 34 FEP Cases 1702, (1984), is not controlling here, and that the case law cited by the examiner in support of her decision continues to be the law on this issue.

125

Hearing Examiner's Decision:

STATE OF WISCONSIN
DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS
EQUAL RIGHTS DIVISION

DAVID J. PIOTROWSKI
     and
RENEE WEINSHEL, Complainants

MILWAUKEE BOARD OF SCHOOL DIRECTORS, Respondent

DECISION
ERD Case Nos. 8153861, 8153862
EEOC Case Nos. 055820028, 055820029 
 

In complaints filed with the Equal Rights Division of the Department of Industry, Labor and Human Relations on September 23, 1981, Complainants alleged that Respondent had discriminated against them on the basis of race in regard to lay-off and conditions of employment in violation of the Wisconsin Fair Employment Act, Sections 111.31-111.37, Wis. Stats., (hereafter "Act").  On June 3, 1982 and June 16, 1982 separate Initial Determinations were issued finding probable cause to believe that such discrimination occurred. Conciliation was unsuccessful and the matters were certified to hearing. In a pre-hearing conference held on August 12, 1983 it was agreed that both matters would be consolidated for hearing. Pursuant to notice hearing was held on August 25, 1983 before Joyce E. Borkenhagen, a duly authorized Hearing Examiner for the Department. Complainants appeared in person and by Attorney David Lowe, Friebert, Finerty & St. John, 710 North Plankinton Avenue, Milwaukee, Wisconsin 53203. Respondent appeared by Attorney Thomas Goeldner, Office of City Attorney, 800 City Hall, Milwaukee, Wisconsin 5.3202.

The transcript shall serve in lieu of the Hearing Examiner's Summary of Proceedings.

Based upon all the evidence received at hearing, the Hearing Examiner makes the following:

1. Respondent, Milwaukee Board of School Directors, is the governing body in charge of operating the public schools in Milwaukee, Wisconsin.

2. Complainant, David Joseph Piotrowski, is a white male employed by Respondent as a Social Worker beginning November 10, 1977.

3. Complainant, Renee Weinshel, is a white female who was employed by Respondent as a Social Worker beginning March 18, 1978.

4. On October 15, 1981 Complainants were laid off along with 18 other Social Workers due to a reduction in force.

5. At the time of Complainants' lay-offs, two black Social Workers with less seniority were retained. They were William Brooks and Portia Harrison.

6. At the time of the lay-off Complainant Piotrowski, was number 3 on the seniority list and Complainant Weinshel, was number 4. If the two black Social Workers had been laid off according to seniority, Complainants would have been the last two Social Workers laid off and would have been the first two Social Workers to be recalled.

7. Because the two black Social Workers were not laid off according to seniority, Rafael Fernandez and Douglas Foster, were laid off on October 15, 1981 and were placed in the first and second positions for recall. Mr. Fernandez was given a recall notice on February 18, 1982 and Mr. Foster was given a recall notice on October 11, 1982.

8. Because straight seniority was not followed, Complainant Piotrowski was not recalled until January 17, 1983, instead of February 18, 1982 and Complainant Weinshel was not recalled until May 19, 1983, instead of October 11, 1982.

9. The exemption from lay-off of the two black Social Workers was done in accordance with the contract between Respondent and the Milwaukee Teachers' Educational Association which includes Social Workers and reads as follows:

"All lay-offs shall be based on inverse order of seniority within qualifications as set forth in the following procedures provided the racial balance of schools is not disturbed."

This provision was inserted into the contract as a result of binding arbitration and was opposed by the Milwaukee Teacher's Educational Association.

10. The lay-off procedure adopted by the Board was strictly voluntary on the part of Respondent and was not required by any court action. Since March, 1976 Respondent has had a voluntary Affirmative Action Plan which endorses special efforts in all phases of its employment to overcome inequities and the under-utilization of protected groups. One of the goals included achieving a staffing pattern which is reflective of the metropolitan area.

11. Having a staffing pattern which is reflective of the community has important benefits for the students and the metropolitan area.

12. The term "community" for the Milwaukee Public Schools for purposes of setting minority hiring goals can represent two different populations. One is the black population of the City of Milwaukee which was 23.1% according to 1980 census figure. The other is the percentage of black students within Respondent's system which was 47.3% as of September 18, 1981.

13. For the 1981-1982 school year the percentage of Respondent's black staff members was 17.4%, which was significantly under either goal.

14. If the lay-offs of the Social Workers had not taken into consideration, the Affirmative Action goals 25% of the laid off Social Workers would have been black. This would have resulted in a decrease of black representation in the overall staffing of Respondent's school.

1. Respondent is an employer within the meaning of the Act.

2. Complainants have failed to show by a preponderance of the evidence that they were discriminated against on the basis of race with respect to lay-off in violation of. the Act when Respondent altered their seniority rights to protect the jobs of minority workers.

3. Complainants have failed to show by a preponderance of the evidence that Respondent was guilty of unlawful race discrimination in violation of the Act.

That the case in this matter be dismissed.

The issue in this case is whether or not Respondent discriminated against Complainants on the basis of race when it voluntarily implemented an Affirmative Action Plan which resulted in the lay-off of Complainants while less senior black Social Workers were retained. Since this issue has not yet been before the Wisconsin Supreme Court or the Court of Appeals, and because the language of the Wisconsin Fair Employment Act is similar to that of Title VII, Federal cases on this subject can be looked to for. guidance.

A review of Federal cases indicates this area is far from settled.  The Supreme Court is expected to decide this issue in the near future. Unfortunately, this decision must be made without the benefit of the Court's thinking. Lower Federal court decisions strongly suggest that voluntary Affirmative Action Programs which modify the seniority rights of majority members do not constitute unlawful discrimination when certain conditions are met. These conditions include: 1) That the lay-off provisions seek to prevent the loss of minority hiring gains achieved through the operation of the Board's Affirmative Action hiring policy.   2) That the lay-off provisions are only temporary.   3) That the lay-off provision not require the retention of unqualified staff members.   4) That the lay-off provisions not require the lay-off of only white staff members.   5) That the lay-off provisions do not oust white staff members and replace, them with new minority hirees;  and 6) That the lay-off provisions do not absolutely bar laid off white staff workers from ever again working for the district (Wygant v. Jackson Board of Education, 30EPD, Paragraph 33,199 (ED Michigan, September 7, 1982).  See also Tangren vs. Wackenhut Services, Inc. 658 F2d 705 (9th Cir. 1981), cert. denied 456 US 916 (1982), United Steelworkers of America vs. Weber, 443 U.S. 193 (1979).

All of these conditions are met by the instant case. If straight seniority had been used a larger percentage of black Social Workers would have been laid off as compared to the percentage of black staff working for Respondent. The operation of the provision did not exempt all black Social Workers from lay-off. The white Social Workers who were laid off were eventually recalled. Although the Complainants did suffer as a result of the modification of their seniority rights, there were overriding social policy considerations to justify Respondent's actions.

Dated at Milwaukee, Wisconsin December 14, 1983.

/s/ Joyce E. Borkenhagen, Hearing Examiner

cc:
Attorney David Lowe
Attorney Thomas Goeldner
Attorney James A. Hiller
Attorney Daniel Shneidman

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