JAMES O ZAHN, Employee

LAND O LAKES INC, Employer
c/o UC EXPRESS

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:

The employee worked more than 29 years as a general laborer for the employer, a cheese manufacturing and processing plant. The employee's last day of employment was December 2, 2003.

The issues are whether the employee was eligible for benefits during the period of suspension beginning on December 5, 2003; whether the personnel action taken on December 18, 2003, was a discharge or a suspension; and whether the December 18 action occurred under circumstances which would permit the payment of benefits.

As a part of his duties, the employee was responsible for driving the employer's trucks. As a driver, the employee was subject to random drug and alcohol screening pursuant to the employer's policies (exhibit #2) and Department of Transportation requirements. The employee was aware of this.

The employee underwent a random drug and alcohol screening on Tuesday, December 2, 2003, and the certified test results (exhibit #1) show that he tested positive for marijuana metabolites.

The employee drank a case and a half of beer the previous weekend and, although he did not remember doing so, was told that he smoked marijuana while he was intoxicated.

The employee was suspended for purposes of investigation on December 5, 2003, and discharged on December 18, 2003.

The employee returned to work for the employer on February 16, 2004, pursuant to an agreement between the employer and his union, and, as a condition of his return, he was required to remain alcohol/drug-free and was prohibited from resuming his driving duties. The employer treated this as a reinstatement after a period of unpaid suspension.

The employee would be eligible for benefits during the period of suspension for purposes of investigation, i.e., from December 5 through 17, 2003. Stahl v. Doskocil Food Service, UI Hearing No. 01005452JF (LIRC March 29, 2002).

In regard to the period of time after December 17, where, as here, the facts clearly indicate that a discharge has been rescinded and the employer has treated the employee's period of unemployment as a period of disciplinary suspension, the employee's eligibility for benefits is properly analyzed pursuant to Wis. Stat. § 108.04(6). Hall v. Milwaukee Transport Services, Inc., UI Hearing No. 95603339MW (LIRC Jan. 11, 1996), aff'd sub nom., Milwaukee Transport Services, Inc., v. LIRC and Cornelius Hall, Case No. 96 CV 000989 (Milw. Co. Cir. Ct., Aug. 21, 1996).

Wisconsin Statues § 108.04(6), states as follows:

108.04(6) Disciplinary suspension. An employee whose work is suspended by an employing unit for good cause connected with the employee's work is ineligible to receive benefits until 3 weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first. This subsection does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under this subsection if the employee qualifies to establish a benefit year under s. 108.06(2)(a).

The next question then is whether the employer had good cause for its disciplinary suspension of the employee.

In Koss v. Menonomee Indian Tribe, UI Hearing No. 97-400031 (LIRC April 10, 1998), the commission held that, in order to deny benefits for off-duty drug use based on a positive drug test, the employee must knowingly violate a reasonable employer rule prohibiting off-duty use of illegal drugs, and, to be reasonable, the employer's rule must prohibit both on-duty and off-duty use of illegal drugs, be known to the employee, be set forth in writing, and spell out the consequences of a positive test result.

The employer's policy meets each of these tests. Specifically, in Addendum 2, the employer's policy relating to drug testing of drivers states as follows, as relevant here:

The use of a controlled substance is prohibited and violates company policy. This means Drivers . . . shall not consume any controlled substance while on or off duty. If a Driver has a prohibited controlled substance in his or her system or has used a controlled substance as evidenced by a drug test administered in compliance with the Department of Transportation (DOT) rules, that Driver will be deemed medically unqualified to drive, will be prohibited form driving and will be subject to summary discipline, up to and including discharge.

Marijuana heads the list of controlled substances in the definition section of this addendum which, in section B of the Procedure section, provides for random testing. Finally, the employer's policies, as explained in the Purpose section of Addendum 2, are reasonably related to the employer's interests in protecting the safety of the motoring public and citizens in general.

As a result, the record supports a conclusion that the employer had good cause for the employee's disciplinary suspension.

In his petition for commission review, the employee offers a letter from a counselor, prepared on February 4, 2004, which states that, as a result of a December 29, 2003, evaluation, the counselor concluded that the employee is alcohol dependent with a secondary diagnosis of cannabis abuse. The employee's theory is that his consumption of alcohol during the weekend at issue was not volitional and caused his use of marijuana, and that, consequently, good cause for his disciplinary suspension could not be shown. There are at least two good reasons for not granting further hearing to give the employee an opportunity to offer this letter as evidence. First, a letter from a counselor is not competent medical evidence as to the existence of a non-volitional substance addiction. Second, the hearing in this matter was held on February 25, 2004, so the employee had an opportunity to offer this letter as a hearing exhibit but failed to do so and has offered no reason for this failure.

The commission therefore finds that, beginning in week 49 of 2003, the employee's employment was suspended, but not for good cause connected with his work, within the meaning of Wis. Stat. § 108.04(6).

The commission further finds that, in week 51 of 2003, the employee's employment was suspended for good cause connected with his work, within the meaning of Wis. Stat. § 108.04(6).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 49 of 2003. The employee is ineligible for benefits beginning in week 51 of 2003, and until 3 weeks have elapsed since the end of that week. The employee is eligible for benefits thereafter, if otherwise qualified.

Dated and mailed June 29, 2004
zahnjam . urr : 115 : 3  MC 676  MC 676.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

cc: Land O' Lakes (Spencer, Wisconsin)

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uploaded 2004/07/02