ERD Case No. 8300050

On February 13, 1987, the Administrative Law Judge (ALJ) for the Department of Industry, Labor and Hunan Relations issued a decision in the above-captioned matter concluding that the Respondent discriminated against the Complainant because of arrest and conviction record in regard to discharge in violation of the Wisconsin Fair Employment Act. The Respondent filed a timely petition for Commission review of the ALJ's decision and both parties subsequently submitted written arguments.

The Respondent's request to present oral argument, which has not been previously ruled on by the Commission, is now hereby expressly denied. The Commission finds that the parties' arguments have been adequately set forth in their written arguments to the Commission.

Based upon a review of the record in its entirety, and after having considered the ALJ's impressions of the witnesses' credibility, the Labor and Industry Review Commission hereby issues the following:


1. The Complainant, Larry McClellan, began employment with the Respondent on May 20, 1979, as a security guard. He worked at a nuclear power plant (LaCrosse Boiling Water Reactor) in Genoa, Wisconsin, where the Respondent had contracted with the Dairyland Power Cooperative to provide security services.

2. As an operator of a nuclear power reactor, the Dairyland Power Cooperative was subject to regulation by the Nuclear Regulatory Commission (NRC). The NRC required that Dairyland Power establish and maintain a security system, and imposed various requirements on the security organization and security personnel providing such security.

3. Under regulations established by the NRC the Respondent must refrain from employing as a security guard any person who has a felony conviction involving the use of a weapon or a felony conviction reflecting on his reliability. The NRC does not require that the Respondent refrain from employing anyone convicted of a misdemeanor as a security guard, and the Respondent has never discharged or failed to hire because of a misdemeanor conviction.

4. Security guards are responsible for the maintenance of safety and security at the nuclear facility. They are trained in the use of weapons and have authority to use deadly force in carrying out their responsibilities to protect the site. They are also trained in the detection and prevention of contraband, including marijuana or alcohol, at the site. Security guards have the authority to search individuals and their autos, to seize property, and to detain and arrest individuals at the nuclear site.

5. On August 5, 1982, the Complainant was charged with a misdemeanor possession of marijuana. Police officers found five marijuana plants next to the trailer where Complainant resided with his wife. Complainant pled guilty and paid a fine of $100, plus court costs and taxes of $32.

6. On Sunday, August 22, 1982, a notice appeared in the public record page of the LaCrosse Tribune stating that the Complainant had been fined $132 for possession of marijuana by the Vernon County Court. Respondent's Captain Sheila Bussian, who had overall responsibility for supervision and control of the security forces at the Genoa facility, read the notice about Complainant which appeared in the LaCrosse Tribune. After verifying that the Larry McClellan appearing in the paper was the same McClellan employed by the Respondent, Bussian suspended the Complainant from work without pay on August 23, pending an investigation into the facts and circumstances surrounding his conviction for possession of marijuana.

7. At the request of his union steward, the Complainant prepared a statement dated August 25, 1982, recounting what led to his being summoned to appear in court on August 5 for possession of marijuana. Complainant's statement said that after he and his wife called the police on his neighbors for shooting off firecrackers and barrel bombs early on July 5, 1982, the neighbors later got even by reporting to police that marijuana plants were growing outside their trailer.

8. On August 25, Bussian met with Complainant. During the meeting Complainant informed Bussian that he had pled guilty to possession of marijuana. Complainant also prepared a written statement for Bussian. Complainant essentially repeated his first written statement, except that this time he stated that he was growing the marijuana plants. Complainant also told Bussian that he was growing the marijuana plants. Bussian did not discharge Complainant at that time.

9. Subsequently, on August 30, 1982, the Complainant, a union representative, Bussian and Duane Thenhaus, safeguard coordinator for the Respondent, met. During this meeting Complainant stated that he and his wife had planted the marijuana and that he pled guilty to possession of marijuana because he did not want to hassle with the courts and because his wife was pregnant. During this meeting the Complainant also stated that he used marijuana during off-duty hours when away from work and felt that he knew his limits. In a written statement to Thenhaus dated August 30, 1982, the Complainant again related the events which led to his summons to court for possession of marijuana. Complainant stated in this memo that he had quit smoking marijuana three months earlier (May) and that the plants the police observed in July, 1982, were for his wife's personal use.

10. Following the August 30, 1982 meeting, Mr. Thenhaus recommended that Complainant be discharged. Thenhaus found the Complainant's admission to use and possession of marijuana to constitute a conflict of interest with the performance of his duties as a nuclear security officer. Thenhaus recommended that the Complainant be discharged because his job duties as a security officer called upon him to report and enforce regulations prohibiting anyone from possessing or using drugs at the job site when the Complainant himself admitted to having planted and being in possession of marijuana.

11. On September 7, 1982, Captain Bussian prepared an "EMPLOYE SEPARATION REPORT" for the Complainant which explained his discharge as follows:

"Larry McClellan was suspended on 8/23/82 pending investigation of charges of possession of marijuana. Investigation concluded that he be released as a nuclear officer with Burns Security, effective 9/7/82."

12. The Respondent did not discharge Complainant because of his conviction record, but rather because of his admitted use and possession of marijuana.


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

2. The Respondent did not discriminate against the Complainant because of arrest or conviction record in regard to discharge in violation of the Wisconsin Fair Employment Act.


That the Complainant's complaint herein be dismissed.

Dated and mailed March 31, 1988

/s/ Hugh C. Henderson, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


The ALJ concluded that the Respondent had discriminated against the Complainant because of arrest and conviction record and awarded reinstatement, backpay (with interest) and attorney's fees. The ALJ made the following finding in concluding that there was discrimination:

"8. A Mr. Guy Thomas, labor relations manager for Respondent, testified under oath at an unemployment compensation hearing held January 3, 1983, that the sole: and exclusive reason the Complainant was discharged was because of his conviction for possession of marijuana. The growing of marijuana plants, while in violation of the law, would not relate to the circumstances of Complainant's job."

On appeal to the Commission, the Respondent argues that the ALJ erred in finding that the Complainant's conviction for possession of marijuana was the sole and exclusive reason for his discharge; that even if it was, his conviction was substantially related to the circumstances of his job as a nuclear security officer. Farther, the Respondent argues that even if the Commission determines that the Complainant's discharge violated the Act's prohibition against discrimination on the basis of conviction record, the Act as applied, is preempted by the Atomic Energy Act and the NRC regulations promulgated thereto, and § 301 of the Labor Management Relations Act. In view of the Commission's determination on whether the Respondent discriminated against the Complainant on the basis of conviction record, the Commission does not reach the preemption argument.

The Wisconsin Fair Employment Act provides that it is an act of employment discrimination to terminate from employment, or to discriminate against any individual in terms, conditions or privileges of employment because of. conviction record. Wis. Stats., secs. 111.322 and 111.321. Sec. 111.335(1)(c)1 provides an exception, however, whereby it is not employment discrimination because of conviction record to terminate any individual who has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job. (1)

Based upon the above, the first issue is whether or not the Respondent suspended and discharged the Complainant because of his conviction record. The Commission finds that it was the Complainant's admitted possession and past usage of marijuana while employed as a nuclear guard, rather than his conviction record which caused his discharge. Several reasons form the basis of the Commission's decision. First of all, the ALJ's finding that Thomas had previously testified that the sole and exclusive reason that Complainant was discharged was because of his conviction for possession of marijuana, is not supported by the testimony at the unemployment compensation hearing. Thomas's position was that the Complainant's underlying conduct, not his conviction record, was the basis for the Complainant's discharge. Throughout that hearing, not only Thomas, but Thenhaus and Bussian, repeatedly stated that they felt the Complainant's admitted possession and use of marijuana, albeit off duty, conflicted with his job duties because he was responsible for reporting and enforcing the rules forbidding any use or possession of marijuana at the nuclear plant. (2)   It is true that Thomas told Attorney Birnbaum on cross-examination that Complainant's misdemeanor conviction for possession of marijuana was the sole and exclusive reason for the discharge, but a reliance on this isolated remark ignores both the context of this statement and Thomas's testimony. As argued by the Respondent, it is apparent that Thomas was using the term "conviction" as a shorthand way of summarizing the conduct which the Complainant had admitted to the police and Respondent.

Secondly, in addition to its testimony about why it decided to discharge the Complainant, the response the Respondent took upon learning of his conviction also demonstrates that the Respondent was not motivated by conviction record animus. As argued by the Respondent, "Burns did not discharge McClellan immediately upon confirming that he had been convicted; instead it began an investigation to discover the underlying facts and determine how those facts would impact upon McClellan's ability to perform his responsibilities in a manner satisfactory to the NRC, Dairyland and Burns. McClellan was discharged only after the investigation disclosed that he had been using marijuana for a numbers of years."

Thirdly, the fact that the Respondent adheres to a specific rule forbidding the employment of anyone convicted of a felony (involving the use of weapon or that reflects on the individual's reliability), but has no rule requiring disqualification from employment or discharge of individuals convicted of lesser offenses, also suggests that the Complainant's misdemeanor conviction itself would not be cause for termination from employment. The Complainant himself acknowledged at the unemployment compensation hearing that to his knowledge, a misdemeanor conviction never resulted in anyone's discharge. In addition, the Complainant has failed to specify any occasion on which any representative of Respondent had ever indicated that he was discharged because of his conviction.

The true effect of the conviction was that it led Respondent to investigate the Complainant's conduct. The information developed in that investigation, not the Complainant's conviction record, caused the Complainant's discharge.

However, even if the Commission were to conclude that the Complainant was discharged because of his conviction record, the commission still believes there would have been no violation of the Act because the conviction substantially related to the circumstances of Complainant's job as a security guard. Complainant was convicted for unlawful possession of marijuana when his very job responsibilities included the interdiction of illegal drugs such as marijuana. As the court stated in County of Milwaukee v. LIRC, 139 Wis. 2d 805; 407 N.W. 2d 908 (1987), "[i]t is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person." Id. at 824. The Complainant's admission to possession (and prior use) of marijuana gave Respondent ample reason to doubt his devotion to the task of prohibiting use and possession of drugs at the job site.

The Complainant contends, however, that the Respondent's concession that it takes no action against employes who are convicted of drunk driving should preclude it from prevailing with respect to the substantial relationship argument regarding the Complainant's conviction for possession of marijuana. However, the use and possession of marijuana is itself an unlawful activity while use or possession of alcohol is not. Thus, it is not difficult to understand why the Respondent would feel that a guard who is willing to engage in conduct which society generally condemns and considers dangerous more severely reflects on his judgment, emotional stability, and competence, and therefore should be treated differently.

Finally, the Commission notes that the Complainant has argued that his pregnant wife planted the marijuana, but he pled guilty to the misdemeanor possession charge in order to spare his wife any undue emotional disburbances. The Complainant attempts to create the impression that he was not really responsible for the marijuana plants. However, the Commission does not find this assertion credible. The Complainant admitted to Respondent orally and in writing that it was he who was growing the marijuana plants. The ALJ did not disagree with the Commission's assessment of the Complainant's credibility in this regard. Further, the ALT gave the Commission no specific reason to question the credibility of the testimony, given by Respondent's witnesses in regard to this or any other matter involved in the case.


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(1)( Back ) The complaint also alleges arrest record discrimination but the focus of the parties' litigation has been on the issue of conviction record discrimination.

(2)( Back ) While the Respondent may not have established that the Complainant used or was under the influence of drugs during duty hours, the issue is whether the Respondent violated the Act. The Act does not prohibit an employer from discharging an employe for off-duty drug use.


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