BEFORE THE IOWA CIVIL RIGHTS COMMISSION
JOHN MACK BURTON, Complainant,
VS.
CONTRACT CLEANERS, INC., WALLACE SYKES,
and the HENKEL CORPORATION, Respondents.

FINDING OF FACT

Jurisdictional Facts:

1. The Complainant, John Burton, filed a verified complaint CP # 12-82-9357 with the Iowa Civil Rights Commission, on December 7, 1982, alleging violation of Iowa Code Chapter 601A by discrimination on the bases of race and age in the termination of his employment by Contract Cleaners, Inc. (Complaint). The complaint was subsequently amended on April 22, 1983 to name Contract Services Limited and Wallace Sykes as additional Respondents. (Amended Complaint). (It should be noted that Complainant filed a voluntary dismissal of his complaint against Contract Services Ltd. on July 11, 1989.) It was further amended on January 3, 1985 to add Henkel Corporation as a Respondent. (Amended Complaint). The Complaint's termination date is stated in the Complaint as occurring on or about November 18, 1982. (Complaint). Official Notice is taken of the fact that there are nineteen days between November 18, 1982 and December 7, 1982. Fairness to the parties does not require an opportunity to contest this fact. The complaint was investigated. (Notice of Hearing). Official notice was taken at hearing that probable cause was found. (Tr. at 119). Conciliation was attempted and failed. (Notice of Hearing).

2. The Notice of Hearing, which through inadvertence did not include a copy of the complaint, was issued on February 21, 1989. Another copy of the Notice of Hearing, with a copy of the complaint, was mailed on March 6, 1989. The final hearing date was set, after a continuance, by a scheduling memorandum order dated July 24, 1989.

3. Official notice was taken at the hearing of the Notice of Hearing. (Tr. at 111). Official notice was also taken of the document indicating Notice of Hearing was sent to Wallace Sykes by certified mail letter number 5lOO8l and of the return receipt received from that letter. (Tr. at 111). This return receipt is dated March 3, 1989 and signed by Shirley Sykes.

4. Official notice was also taken of certified letter number 32400 addressed to Wallace Sykes informing him that he was being provided, with the letter, a second copy of the Notice of hearing and a copy of the complaint. (Tr. at 112). Official Notice is now taken of the return receipt from that letter, dated March 8, 1989, and signed by Shirley Sykes. Fairness to the parties does not require that they be given an opportunity to contest that fact. Finally, official notice was taken at the hearing of the scheduling memorandum order dated July 24, 1989 which indicates it was mailed to Wallace Sykes.

5. Wallace Sykes was neither present nor represented at the hearing. No answer or other written response to the Notice of Hearing has been filed by Mr. Sykes.

Background of Contract Cleaners. Inc. and John Burton:

6. Contract Cleaners, Inc. was engaged in contract cleaning of meat packing plants. It provided janitorial services for those facilities. (Cp. Ex. A). In June of 1982, it provided such services to the Swift Independent Packing Company plant in Des Moines, Iowa.

7. Complainant John Burton is a Black male born on August 5, 1938. He began his employment with Contract Cleaners, Inc. on June 7, 1982. (Exhibit K-Request for Admissions by Respondents Henkel Corporation and Wallace Sykes, hereinafter referred to as "Admissions.")* On November 18,1982, the date of his discharge from Contract Cleaners, Inc., he was 44 years old. (Admissions).

8. John Burton was hired and spent his entire employment as part of the "kill floor crew" a labor cleanup crew, i.e. his job was to clean up spills and residues remaining from the butchering and processing of cattle. (Tr. at 17, 65, 67). This is an unskilled job. Complainant Burton would first hose down an area to be cleaned with a pressure hose spraying a chemical and soap solution. A water hose would then be used to rinse off the area cleaned. A broom is used to push meat and fat residues into a pile. These residues are then carried away with a shovel. (Tr. at 86-87).

9. Complainant Burton was initially assigned to the rendering area and worked there, unaccompanied by other employees, until approximately August of 1982. (Tr. at 67-69). He was then assigned to clean the "saw area" where he remained until his discharge. (Cp. Ex. 1; Tr. at 67).

Qualifications of Complainant Burton:

10. Complainant Burton has an eighth grade education. (Tr. at 17). His last position immediately prior to obtaining employment with Contract Cleaners was work for approximately one year as a dishwasher in a restaurant in Des Moines. (Tr. at 18). After he arrived in Des Moines from Missouri, Complainant Burton also did some moving jobs for his brother. (Tr. at 64). Before that, he had worked as a driver's helper for a moving company and as a forklift driver at a chemical plant's warehouse, both in Missouri. (Tr. at 18, 59-60).

Mr. Burton had also worked as an ironworker in California ending in approximately 1974. (Tr. at 51). He had worked two to three years as an apprentice ironworker and three to four years as a journeyman. (Tr. at 56). He had allowed his union card to lapse when he moved to Mexico, Missouri where there were no ironworker jobs available to him. (Tr. 57-58).

11. Inspectors at the Swift meat packing plant would write daily reports on areas which were not sufficiently cleaned and make them available to Contract Cleaners supervisors. (Tr. at 92). Until the day of his discharge, Complainant Burton had never been the subject of such a write-up. (Tr. at 32, 80). Until that day, he had also received no prior warnings on his job performance. (Tr. at 80, 115). He got along well with his supervisor in the rendering area, and with Darrell Morris, his second to last supervisor in the saw area (Tr. at 24, 69). He did not refuse overtime work or to help out wherever needed. (Tr. at 42).

12. On July 17,1983, Complainant Burton received a raise to $4.75 per hour. On August 14, 1982, Complainant Burton was given "leadman" status, which resulted in a $.50 per hour raise. (Cp. Ex. G; Tr. at 22-23, 38). This status resulted in new duties for Complainant Burton in addition to his cleaning duties. (Tr. at 70). As leadman, he would conduct a joint walk-around with Randy, the supervisor above the Complainant's own supervisor, as the next shift came on looking for areas where cleaning had not been properly done. (Tr. at 70-71). If inadequately cleaned areas were found, they would touch them up. (Tr. at 70). In addition to this, Complainant would orient new people to the requirements of the job. (Tr. at 71). He would also fill in for laborers who did not show up for work. (Tr. at 74). At some time shortly before his termination, the Complainant was asked to, and did, give up his leadman status until his new supervisor, Wallace Sykes, was oriented to the position. (Tr. at 75). His hourly wage did not, however, decline between the time he rescinded the leadman status and his discharge. (Admissions; Tr. at 75-76, 80).

Racial and Age Composition of the Kill Floor Crew:

13. Throughout John Burton's employment the nine person kill floor crew was usually composed of approximately six black and three white employees. (Cp. Ex. 1; Tr. at 30, 67- 69). The ages and hire dates of the kill floor crew members as of the Complainant's termination on November 18,1990 are:

(Cp. Ex. H; 1; Tr. at 69).

14. Payroll records indicate that three persons were hired by Contract Cleaners, Inc. within two weeks after Complainant Burton was discharged. The records do not show, however, their race or their work (ESP)assignment:

(Cp. Ex. H).

Events Occurring During the Period of November 11-18. 1982:

15. Wallace Sykes, a white male born on August 6, 1950 was hired as a supervisor by Contract Cleaners, Inc. on November 11, 1982. (Admissions; Cp. Ex. G). Complainant Burton was introduced to Mr. Sykes for the first time on November 16, 1982. For some unknown reason, Mr. Sykes was either introduced or the Complainant believed he was introduced as Douglas Humble. (Complaint; Tr. at 25). At that time, which was the first day Mr. Sykes acted as Complainant's supervisor, he stated that he had heard that Mr. Burton was a good worker and that he wanted Mr. Burton to teach a man he identified as his son, William Toner, everything he knew. (Tr. at 26, 28, 29, 80, 82). Mr. Toner is either the son, stepson or son-in-law of Mr. Sykes. (Admissions). He also informed Mr. Burton that the operation would be not be changed until he saw fit to change it. (Tr. at 116).

16. Mr. Sykes then introduced William Toner to the Complainant. (Tr. at 28). This was Mr. Toner's first day on the job also. (Tr. at 28, 29). William Toner was a white male born on May 25,1964. (Admissions; Cp. Ex. G). He was hired by Contract Cleaners on November 13,1982. (Admissions).

17.There was no further contact between Complainant Burton and Respondent Sykes until November 18, 1982. (Tr. at 30, 82, 84, 91-92). On November 17,1982, William Toner came to Complainant Burton and stated that his father, Wallace Sykes, had told him to come over and tell Burton to show him how to do everything in the area. (Tr. at 29, 85-86). In an effort to teach Mr. Toner how to do the job, Complainant Burton handed him the water hose he was using to clean the area and said "We'll start here." (Tr. at 29, 8586). This was Complainant Burton's usual method for teaching new employees their jobs. (Tr. at 29-30, 72).

18. He directed Mr. Toner to use the hose to wash residue off a table. (Tr. at 87). Toner's response was to reply "No, my Dad says 'show me,"' apparently meaning that he wanted to stand and watch while Complainant Burton did the work. (Tr. at 29, 88-89). He then handed the hose back to the Complainant and walked away from him. (Tr. at 30, 90). Complainant Burton had no further communication with Mr. Toner. (Tr. at 31, 91-92).

19. While on break on November 17, 1982, Complainant overheard "Randy," who was Respondent Sykes' supervisor, state that the kill floor crew was overstaffed and would have to be reduced. (Tr. at 35, 107).

20. At the beginning of the Complainant's shift on November 18, 1982, Wallace Sykes informed him that there had been criticism of his work by the inspectors in regard to two items.

(R. Ex. 2; Tr. at 35, 93). First, the "tail wash" area was not sufficiently clean. (Tr. at 93). Second, the wall behind a scale was dirty. (Tr. at 36, 95). This conversation occurred in the break room prior to Complainant Burton going to his work area. (R. Ex. 2).

21. The tail wash was not the area assigned to Complainant Burton to clean. (Cp. Ex. 1; Tr. at, 67, 94, 117). When Mr. Burton informed Respondent Sykes of this, Sykes replied that "any area I tell you to clean is your area."

Mr. Sykes had never told Mr. Burton to clean that area. (Tr. at 95).

22. The scale referred to was a "hot" scale located in the saw area where Complainant worked. (Admissions). This scale was a computerized scale which weighed meat and printed a slip of paper with the weight on it as the meat passes on a hook on a railing over the scale. (Tr. at 33). By November 17, 1982, Swift Independent Packing Company had a standing policy that the scale was not to be moved or cleaned by Contract Cleaners personnel. (Admissions; Tr. at 33). Although the Complainant was allowed to clean the floor under the scale and the walls around it, he was not to clean the scale or the area of the wall behind the scale where he would have to move the scale in order to clean it. (Tr. at 33-34).

23. On one prior occasion, Mr. Burton had moved the scale in order to clean. He and other Contract Cleaners employees and supervisors were then informed at a meeting that, by moving the scale, it was placed out of adjustment. The scale was shut down for approximately one day while Swift personnel readjusted it. (Tr. at 34). Complainant Burton and the others were informed that, if an individual moved the scale, Swift would revoke his pass into the plant, an action which would, in effect, end his employment. (Tr. at 36, 97). Only Swift personnel were to clean or move that scale. (Tr. at 34). As of November 18, 1982, Burton had never been told to move the scale in order to clean the wall behind. (Tr. at 1 1 6).

24. John Burton told Respondent Sykes that he had cleaned as far behind the scale as he could without moving the scale. Sykes replied that Burton could have moved the scale as it pulls away from the wall. (Tr. at 36). Burton indicated to Sykes that he had been told not to bother or move the scale. (Tr. at 96). Sykes reply was, in essence, that if he told the Complainant to move the scale he was to move it as Sykes was the supervisor. (Tr. at 97). At this point Burton told Sykes about his prior experiences with the scale and how Swift would pull his pass if he did move it. (Tr. at 36,97).Wallace Sykes said he would take the blame. (Tr. at 98). Burton said he would move the scale and clean the wall, if he had to.

(R. Ex. 2). He then asked Sykes to ask the night supervisor or maintenance personnel about it because he did not want to lose his pass. (R. Ex. 2; Tr. at 37, 100).

25. At this point, Respondent Sykes discharged Complainant Burton. (Admissions). He did so by telling him, "You're a smart aleck anyway. We don't have any use for you. So, I'm letting you go." (R. Ex. 2; Tr. at 37, 1 00-01 ).