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

JESSE J BROWN, Employee

DISTRICT COUNCIL OF MADISON INC
SOC OF ST VINCENT DE PAUL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002790MD


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, except that it makes the following modifications:

The second sentence of the seventh paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is modified to read as follows:

The manager smelled marijuana in the van and noticed the employee sitting in the driver's seat and another employee sitting in the back seat smoking what appeared to be a marijuana pipe.

The word "incredible" in the first sentence of the twelfth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is changed to the word "credible.'

The second and third sentences of the twelfth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section are deleted.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 25 of 2006, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed November 30, 2006
brownje . umd : 115 : 2  MC 651.6

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The administrative law judge did not credit the employee's testimony that he was unaware that coworker Jewell was smoking marijuana in the employee's van. The commission finds no persuasive reason to overturn this credibility determination.

First, the employee's explanations morphed over time. The employee's initial defense was that he did nothing wrong because he was not aware that coworker Jewell intended to smoke marijuana when the employee let him join him in the van. His defense then changed to a denial that he had been aware that Jewell was smoking marijuana in his van, because Jewell was not sitting in the front seat where the employee could have seen he was smoking a pipe rather than a cigarette and because the employee had no reason to be familiar with the smell of marijuana smoke. Finally, the employee conceded to the employer that he had been aware that coworker Jewell was smoking marijuana but he should not be discharged because it was not his marijuana, and he had not smoked it or actually even touched or "possessed" it.

In addition, Lemon's contemporaneous notes indicate that, when the employee was asked whether someone was smoking marijuana in his van, he directed Lemon's attention to Jewell in the back of the van; notes taken of the employee's meeting with four supervisors on the day the incident occurred indicate he eventually conceded to them that he had been aware that Jewell was smoking marijuana in the back of the employee's van; and the employee signed a statement that day admitting that he had been aware that Jewell was smoking marijuana in the back of his van.

Given the employee's statement that he was aware he could be discharged for letting Jewell smoke marijuana in his van on company property, he was aware that his job would be in jeopardy for engaging in such actions.

The final question then is whether the employee's actions constitute misconduct connected with his employment.

The fact that these actions occurred in the employee's parking lot during business hours supplies a sufficient connection to the employee's employment.

It was, of course, not the actions of the employee which directly violated the employer's work rule prohibiting the use or possession of a controlled substance on company property (see Exhibit #3). It was, instead, his enabling of the prohibited actions of a coworker which implicated him.

Here, the employee provided coworker Jewell a place to hide the prohibited activity from management, and, even if the employee had not originally been aware of Jewell's intent, he apparently did not make an effort, once becoming aware, to prevent Jewell from continuing to use his van for this purpose.

In Garon v. Goodwill Industries, UI Hearing No. 06400614GB (LIRC Aug. 25, 2006), the commission held that, although there was nothing in the record to suggest that the employee in that case had knowingly participated in a fraud against his employer, "he intentionally violated the standards of conduct the employer had a right to expect of him [by] enabling the fraud to occur."

Given the very serious nature of the prohibited activity enabled by the employee here, i.e., the use of a controlled substance on employer property during business hours, the commission concludes that the employer sustained its burden to prove misconduct.

 


 

ROBERT GLASER, COMMISSIONER (Dissenting)

I respectfully dissent from the majority decision.

In my opinion, the employee did not commit a violation of the employer's work rules. These rules prohibit only the "consumption, possession, or being under the influence of....illegal substances on the premises of the [employer]." It is not alleged that the employee was under the influence of marijuana or any other illegal substance. The employee's mere presence in the van with a coworker who was smoking marijuana would not actually constitute consumption or possession.

Although, in Garon, supra., the commission concluded that enabling an illegal act to occur can support a conclusion of misconduct, the employee here took a significantly more passive role in regard to the illegal actions under consideration than the employee in Garon. As a result, the rationale of that case should not be extended to the present fact situation.

The employee's conduct, although deserving of some level of discipline under the employer's progressive discipline policy, was not sufficiently egregious to support a conclusion of misconduct.

/s/Robert Glaser, Commissioner

 

cc: Brian Cadwell


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