WILLIAM J. GRAY, JR., Complainant

WALKER MANUFACTURING CO., Respondent

The Examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on October 15, 1980. Complainant filed a timely petition for review and both parties subsequently filed written arguments with the Commission.

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

That the decision of the Examiner is affirmed by the Commission and shall stand as the FINAL ORDER herein, subject to the following modification:

The last word of Finding of Fact, paragraph #6, "Delaware," is deleted and the word "Pennsylvania" is substituted therefor.

Dated and mailed at Madison, Wisconsin July 21, 1982.

/s/ David A. Pearson, Chairman

/s/ Virginia B. Hart, Commissioner

/s/ Pamela I. Anderson, Commissioner

The change made by the Commission in Finding of Fact, paragraph #6, does not affect the result in the case and is made for the purpose of conforming the findings to the evidence in the case.

The Commission has reviewed the transcripts in this case, as well as the correspondence between the parties and the Examiner and can find no basis in fact for the allegations in Complainant's petition for review that the Examiner was biased and denied the Complainant an opportunity to be heard on the jurisdictional issue.

The record does reflect that Examiner Borkenhagen became somewhat testy over Complainant's attorney's repeated questioning of her rulings on evidentiary motions. The majority of the spats between Attorney Brostoff and Examiner Borkenhagen occurred over Brostoff's persistent attempt to question the witnesses regarding the Complainant's performance over the course of his 14-year career with the Respondent company. Examiner Borkenhagen sustained repeated objections by the Respondent's counsel on the basis that the questions being asked by Brostoff were irrelevant in view of the fact that Respondent had conceded that the Complainant had performed admirably up to the time of the alleged incident of cheating. The Commission's review of the record reveals that Examiner Borkenhagen acted quite commendably on the whole and certainly did not appear to be motivated by bias toward the Complainant in her conduct of the hearing.

Brostoff's second allegation, regarding lack of notice and a supposed ex parte communication by the Respondent to the hearing examiner, is baseless. Both parties were given the opportunity to brief the jurisdictional matter. Rather than briefing the issue, Attorney Brostoff objected to the Examiner's right to raise the jurisdictional question on her own motion. Brostoff demanded to see a copy of the brief submitted by the Respondent so that he could reply to it, even though the Examiner had requested the parties to submit the briefs to her simultaneously. Attorney Brostoff was even afforded additional time to submit a brief after he professed confusion as to what was in issue. Since Brostoff submitted no original brief the Examiner did not afford him the right to reply to Respondent's brief. Attorney Brostoff argues to the Commission that this refusal to permit a reply on the jurisdictional question constituted a denial of due process. The Commission disagrees. It is worth noting that Attorney Brostoff has had an opportunity to submit a brief to the Commission discussing the jurisdictional issue but has not done so, in spite of the fact that he has been provided with a copy of Respondent's brief to the Commission on the issue.

As the basis for affirming the Examiner, the Commission reiterates its opinion that the controlling factor in determining whether the Act applies is the place where the discrimination took place, in this case Pittsburgh, Pennsylvania. (See Buyatt v. C. W. Transport (LIRC 7/15/77).

Note: The decision of the hearing examiner which the commission affirmed in this matter is reproduced in its entirety below:

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

William J. Gray, Jr.
Complainant

vs.

Walker Manufacturing Company
Respondent

DECISION
ERD Case No. 8025006

In a complaint filed with the Equal Rights Division of the Department of Industry, Labor and Human Relations on September 19, 1976 Complainant alleged that Respondent had discriminated against him on the basis of age in regard to discharge in violation of the Wisconsin Fair Employment Act, Sections 111.31-111.37 Wis. Stats. (hereafter "Act"). On March 14, 1978 an Initial Determination was issued finding no probable cause to believe that such discrimination had occurred. Complainant filed a request for a hearing on those findings. The matter was heard on June 8, 1979 by Hearing Examiner Leonard A. Tokus who issued a decision reversing the no probable cause finding on February 8, 1980. Conciliation was waived and the matter was certified to a nearing on the merits. Pursuant to notice hearing was held on July 23, 1980, and August 14 and 15, 1980 before Joyce E. Borkenhagen, a duly authorized Hearing Examiner for the Department. Complainant appeared in person and by Attorney Alan S. Brostoff, 700 North Water Street, Milwaukee, Wisconsin 5320. Respondent appeared by Attorney Jeffrey L. Madoff and Attorney William J. Sullivan, Seyfarth, Shaw, Fairweather b Geraldson, 55 East Monroe Street, Chicago, Illinois 60603.

During the course of the nearing a question of the Department's jurisdiction to proceed in the matter arose and both parties were asked to submit their comments on the issue. Only the Respondent chose to respond.

Based upon the entire factual record, the Hearing Examiner makes the following:

1. Respondent, Walker Manufacturing Company, is a company with offices located throughout the United States. Its home office is in Racine, Wisconsin.

2. Complainant, William J. Gray, Jr., is a resident of Pittsburgh, Pennsylvania.

3. Complainant was employed by Respondent for 14 years as a Territorial Manager.

4. During the entire term of employment Complainant was associated with Respondent's Philadelphia and Delaware facilities.

5. Respondent's stated reason for terminating Complainant related to Complainant's handling of refunds of one of Respondent's Pittsburgh, Pennsylvania customers.

6. The termination papers for Complainant's discharge were initiated from Respondent's office in Wilmington, Delaware. Complainant was informed of his termination in Delaware.

7. At all times relevant to the complaint both Pennsylvania and Delaware had in effect Fair Employment Statutes.

8. The alleged discrimination did not occur in Wisconsin.

Complainant has failed to show sufficient nexus to the State of Wisconsin, to invoke the jurisdiction of the Department of Industry, Labor and Human Relations for actions that occurred in the States of Pennsylvania and Delaware. There is no evidence that Complainant either worked in Wisconsin or lived in Wisconsin at any time material to the complaint.

That the complaint in this matter be dismissed.

Dated at Milwaukee, Wisconsin October 15, 1980

/s/ Joyce E . Borkenhagen
     Hearing Examiner

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