Wis.LIRC UC Decision: Brennan, Joel - June 5, 2003 - VL 1007; MC 676 Suspension (Disciplinary); PC 713 - Hearing, Issues For Decision -- under employer's policy positive drug test resulted in employee being on "inactive" status until they passed another drug test - employee failed test, was on "inactive" status, and returned to work some weeks later after passing 2d test - this separation should be treated as a suspension, rather than a discharge and reinstatement - suspension issue had not been noticed, so case remanded

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

JOEL S BRENNAN, Employee

BALCO SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02403564AP

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a mechanical contracting business, for approximately eight years as a steamfitter.

On July 26, 2002, the employee was selected for a random drug test, as provided for in the "Substance Abuse Testing Program" contained in the collective bargaining agreement between the employer and the union. The employee tested positive for marijuana and cocaine metabolites. On July 29, the employer removed the employee from his position based on the positive test result. Consistent with the employer's policy, the employee was placed on "inactive" status until such time as he passed a drug test. On September 18, 2002, the employee passed a drug test. He returned to work the following day.

The question to decide is whether the employee was discharged by the employer on July 29, 2002 (week 31).

While an indefinite suspension is generally considered to be a discharge, in this case it is clear that neither party intended to sever the employment relationship, and both the employer and employee understood that the employee would eventually return to work. Although there was no specified return-to-work date, that appears to have been a matter within the employee's control, as his return to work was contingent upon his passing a drug test. The employee passed a drug test and returned to work prior to the date of the hearing.

The commission, therefore, finds that there was no discharge in week 31 of 2002, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. This matter is remanded for further proceedings on the question of whether there was a suspension in week 31 of 2002.

Dated and mailed June 5, 2003
brennjo . urr : 164 : 1 VL 1007 MC 676 PC 713

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not discuss witness credibility with the administrative law judge. The commission's reversal is not based upon a differing assessment of credibility, but is as a matter of law. The commission finds there was no discharge in this case and believes that the separation would be better characterized as a suspension under the provisions of Wis. Stat. § 108.04(6) or Wis. Stat. § 108.04(1)(b)1. However, the commission is unable to make findings on that issue, as it was not noticed for hearing. It has therefore remanded this matter for a determination as to the applicability of the suspension provisions to these facts.

cc: Attorney Lucas J. Thomas

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uploaded 2003/06/13