STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


RANDY L. SEEMAN, Complainant

UNIVERSAL FOODS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8800779


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 August 24, 1990. Complainant filed a timely petition for review and both parties 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:

ORDER

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

1. In Finding of Fact paragraph 6, line 2, replace the year "1987" with the year "1977."

2. Delete paragraphs 14 and 15 of the Findings of Fact.

3. In paragraph 19 of the Findings of Fact delete the parenthetical statement.

4. Delete paragraph 20 of the Findings of Fact.

5. Delete paragraph 2 of the Conclusions of Law, and substitute therefor the following:

"The arbitration decision of the Arbitrator Frank Zidler has collateral estoppel effect as to the factual issues concerning the Complainant's partial disability, medical restrictions and his ability to perform the job duties."

6. Delete paragraph 3 of the Conclusions of Law, and substitute therefor the following:

"The Complainant's Equal Rights handicap discrimination claim is barred under the Worker's Compensation exclusivity rule, sec. 102.03(2), Stats."

7. Delete paragraph 4 of the Conclusions of Law.

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

Dated and mailed March 30, 1992.

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The facts in this case are detailed and complicated by the presence of a union contract and a work-related injury. Consequently, the case's three major issues, collateral estoppel, worker's compensation exclusivity rule, and federal preemption, will be addressed.

Collateral Estoppel

The essence of the Complainant's equal rights claim is whether the Complainant is able to perform normal job duties despite his permanent partial disability and medical restrictions and, if so, whether the Respondent's refusal to compensate the Complainant 100 percent constitutes handicap discrimination. At the arbitration hearing, the Complainant's argument was that despite these medical restrictions and his permanent partial disability, he could perform his normal duties and was therefore entitled to 100 percent compensation. The Respondent's response at the arbitration hearing was that the Complainant's permanent light duty classification pursuant to the contract was supported by the medical evidence. At the arbitration hearing, facts regarding the Complainant's permanent partial disability, his medical restrictions, his job duties and functions and comparisons of the employe's ability vis--vis others' abilities, were litigated by both parties. Based upon these facts, the arbitrator found that the medical evidence supported a finding that the Complainant's physical condition resulted in a permanent light duty classification under the collective bargaining agreement. The Commission concludes that the Administrative Law Judge correctly applied the doctrine of collateral estoppel. Under this doctrine's application, the Administrative Law Judge is collaterally estopped by virtue of the arbitration decision from relitigating the dispute surrounding the medical evidence, the Complainant's permanent partial disability, the job duties, the Complainant's ability to perform the job duties and comparisons between the employe's ability and other employes' abilities to perform the tasks and job functions.

The Complainant confuses the application of collateral estoppel with the legal holding announced in Alexander v. Gardner-Denver .Co., 415 U.S. 36 (1974), followed by the Commission in Krueger v. DOT, Wisconsin State Patrol (LIRC, l0/4/82).  In Alexander, the U.S. Supreme Court held that an adverse arbitration decision under the contract's nondiscriminatory clause does not preclude a separate Title VII action in federal court. In doing so, the Court reasoned that in submitting a grievance to arbitration, the employe is seeking to vindicate the rights afforded to him by the contract. In contrast, when the employe files suit under Title VII, the employe is asserting his rights afforded by the Legislature, and which are independent of those in the collective bargaining agreement. In Krueger, the Commission found that the arbitration decision did not preclude either DILHR or the Commission from examining de novo the issue of whether the Complainant was a victim of disparate treatment. The application of collateral estoppel does not prevent the Complainant in this instance from pursuing an equal rights claim. Instead, application of collateral estoppel prevents both parties from relitigating relevant factual disputes already decided at the arbitration hearing. Thus, the Administrative Law Judge is collaterally estopped from relitigating the facts surrounding the Complainant's permanent light duty classification.

Worker's Compensation Exclusivity Rule

Here, the relevant inquiry is whether the Complainant is barred from pursuing an equal rights handicap discrimination claim under the Worker's Compensation exclusivity rule. It is undisputed that the employe's handicap stems from a work-related injury. The Complainant received worker's compensation payments in December of 1987, amounting to $2,800, in recognition of a 5 percent permanent partial disability finding.

Section 102.03(2) of the Worker's Compensation Act provides in part:

"Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employe of the same employer, and the worker's compensation insurance carrier."

More specifically, the Worker's Compensation Act provides the exclusive remedy for an employer's refusal to hire an employe because of a job-related injury even if the injury creates a perceived handicap. Norris v. DILHR, 155 Wis. 2d 337 (Ct. App. 1990). Section 102.35(3), the refusal to rehire subsection, provides in part:

"Any employer who without reasonable cause refuses to rehire an employe who was injured in the course of employment, where suitable employment is available within the employe's physical and mental limitations, . . . has exclusive liability to pay the employe the wages lost during the period of such refusal, not exceeding one year's wages."

In this instance, the employment relationship never ceased and the situation cannot be fully characterized as a refusal to rehire. Nonetheless, the Respondent refused to compensate the employe 100 percent for job performance the employe believed worthy of full compensation. Broadly interpreted, the refusal to rehire subsection, provides a better, if not the only, avenue in which the employe can challenge the permanent light duty classification in view of his permanent partial disability and medical restrictions. Consequently, the Commission agrees with the Administrative Law Judge that the Complainant is precluded from seeking relief under Chapter 111.31 by the exclusivity clause of the Worker's Compensation Act.

Federal Preemption

Section 301 of the Federal Labor Management Relations Act preempts questions relating to interpretations of labor agreements as well as legal consequences that were intended to flow from breaches stemming from such agreements. Allis Chalmers Corporation v. Lueck, 471 U.S. 202, 211 (1985). This doctrine of federal preemption must be applied when state claims are inextricably intertwined with the provisions of the collective bargaining agreement. Allis Chalmers, 471 U.S. at 213. The Respondent cites several court decisions that have found state handicap discrimination complaints to be federally preempted by sec. 301 of the Labor Management Relations Act.

The Commission, however, like the Administrative Law Judge, concludes that the protections afforded under the Wisconsin Fair Employment Act are independent of this collective bargaining agreement and therefore are not preempted even if they are based on the same facts surrounding a contract interpretation. In a footnote in Allis Chalmers, the Supreme Court quoting Alexander v. Gardner-Denver, stated that it has found that the Labor Management Relations Act conferred rights on employes collectively to foster the process of bargaining and distinguished such rights which could be waived by contract between the parties, on the one hand, from the individual's substantive right derived from an independent body of law that could not be avoided by contractual agreement, on the other. See Allis Chalmers, 471 U.S. at 213, n. 8. In other words, the Complainant's substantive right to file a complaint under the Wisconsin Fair Employment Act cannot be avoided by this contract agreement.

Additionally, the Complainant's equal rights claim does not require an interpretation of the collective bargaining agreement, thereby preempting the equal rights claim as required under Allis Chalmers and Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988). The essence of the Complainant's equal rights claim is that despite his permanent partial disability and medical restrictions he can perform his normal job duties. Although the contract is applicable to the equal rights controversy, neither the Administrative Law Judge nor the Commission is left with interpreting the contract, but rather must determine the sufficiency of the medical evidence and the employe's testimony regarding his ability to perform his normal job duties. Resolution of the Complainant's handicap discrimination claim does not require an interpretation of the contract, but merely a review of the parties' application of the contract. Consequently, the Complainant's equal rights claim is not federally preempted.

Finally, the Commission notes that the Administrative Law Judge could have taken administrative notice of the relevant WERC decisions. The hearing examiner and WERC decisions made no finding on the merits of the Complainant's equal rights claim but merely stated that the Complainant had a right to pursue a claim under the Equal Rights Division and that it was not an unfair labor practice since it is a separate claim from any claim or cause of action provided for by the labor contract.

135


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