STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


EDWARD J LACOUNT, Employee

GENERAL MOTORS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00005948JV


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits as of week 42 of 2000, if otherwise qualified.

Dated and mailed February 13, 2001
lacoued.usd : 105 : 1 MC 651.6   MC 692.02  MC 699

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission is sympathetic to the employer's attempt to maintain a drug-free workplace. It remains the case, though, that Wis. Admin. Code § DWD 140.16(1) prohibits deciding an issue solely on hearsay evidence unless the hearsay evidence is admissible under Ch. 908, Stats. In the present case, the critical issue is whether any part of the drug transaction took place on the employer's premises. To find that it did, the commission would have to use the hearsay report of the undercover agent. The administrative code provisions prohibits the commission or administrative law judge from doing so. The employer argues that the sale of unauthorized controlled substances to a co-worker in and of itself should constitute misconduct. That constitutes only a tenuous connection to the work, however, and the misconduct statutes require that the misconduct be connected with one's employment. In addition, the employer's own work rule on the matter governs only actions "on company property."

That having been said, the employer will be free if new evidence comes into existence, such as a criminal conviction of the employee for the acts alleged, to bring such evidence to the commission's attention via a request for reconsideration under Wis. Stat. § 108.09(6)(c). Such new evidence will have to establish that at least part of the transaction in question occurred on company property.

cc: GENERAL MOTORS CORP
ATTN JIM UNDERHILL

ANTHONY KLEMER
C/O GENERAL MOTORS EMPLOYEE BENEFITS


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uploaded 2001/02/16