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

SHAUN D GREEN, Employee

LAIDLAW TRANSIT SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600498MW


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, if otherwise qualified.

Dated and mailed April 27, 2007
greensh . usd : 178 : 1   MC 652.2

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employee was given adequate time to provide a urine sample and was aware that a failure to provide a sample would result in the loss of his employment. It argues that the appeal tribunal decision should be reverse and misconduct found.

The employee acknowledged that he was unable to provide the sample required by the employer's rule. The employer discharged him subject to its rules. However, before the commission will find misconduct, it must find that the employee acted in intentional disregard of the employer's interests. The ALJ accepted the employee's testimony that he was permitted less than the full three hours allowed by the employer's policy to produce a sample. The ALJ further credited that the employee's failure to produce the sample was not intentional. The commission accepts these findings and affirms the appeal tribunal decision. The employer made a valid business decision to discharge the employee but that discharge was not for misconduct.



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uploaded 2007/04/30