DAVON KING, Employee

MERCHANTS DELIVERY MOVING & STORAGE, Employer

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 approximately ten months as a mover and a CDL driver for a moving and storage company. The employee's last day of work was December 31, 2012. The employee was discharged on January 31, 2013 (week 5).

Prior to his discharge, the employee was suspended on January 3, 2013 (week 1) for using marijuana off-duty. The suspension lasted until the employee was evaluated by a substance abuse professional and complied with the employer's drug and alcohol policy; specifically pages 36-39 of the employer's policy. See Exhibit 1. As part of this drug evaluation the employee's urine was tested on January 29, 2013.

The terms of the employee's suspension are spelled out in Exhibit 3, Employee Warning Notice, issued by the employer on January 3, 2013. The warning states that the employee admitted to using THC on December 31, 2012 and that as a result of this admission the employee would be relieved from duty by the safety manager until an evaluation by a substance abuse professional could be performed in accordance with the employer's policies. See pages 36-39 of employer's policies, Exhibit 1.

The warning further provided that the employee was dismissed from duties until completion of the evaluation and recommendation from the counselor that the employee is ready to return to duty per the employer's policies, including having a clean drug test at the completion of the counseling. Finally, the warning states "Consequences of Further Infractions: Termination". Both the employer and employee signed the warning on January 3, 2013.

The employee attempts to recant the effect his signature has on this warning, in particular that he never admitted to management that he used marijuana off-duty. The employee admitted using marijuana off-duty sometime before January 3 when the warning was issued and agreed he signed the warning. Further, the employee failed to state on the warning that he disagreed with the admission to off-duty marijuana use.

The first issue is whether the employee's suspension in week 1 of 2013 was with good cause connected with the employee's work. Wis. Stat. Section 108.04(6) provides:

(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).

It is generally held that the "good cause" standard used in Wis. Stat. § 108.04(6) is a less stringent standard than misconduct requiring the employer to establish some blameworthy conduct on the employee's part which may include single, isolated acts of negligence or poor judgment on the part of the employee. See, Neuendorf V. Kraft Foods Global Inc., UI Dec. Hearing No. 10005039MD (January 7, 2011); Mueller v. Ruan Transport Corp., UI Dec. Hearing No. 09004659WR (LIRC January 22, 2010);Voeltner v. Consolidated Freightways Corporation of Delaware, UI Dec. Hearing No. 91400173AP (LIRC May 5, 1992).

The employee argues that he never admitted to management or co-workers that he used marijuana off-duty prior to his suspension date. The employer's witness testified that the employee admitted off-duty use of marijuana to the employer's safety manager. The safety manager did not appear at the hearing but this employer witness heard the employee admit to using marijuana off-duty during the suspension meeting on January 3, 2013. Further, Exhibit 3, the warning that placed the employee on suspension for off-duty marijuana use can be relied upon to support a finding of good cause under Wis. Stat. § 108.04(6). The employee signed the warning and agreed to submit to the conditions of the warning which included drug counseling and testing clean after counseling. Finally, the employee did admit at the hearing that he used marijuana off-duty in December of 2012. (See synopsis pages 12, 15). The commission is therefore satisfied that the evidence collectively establishes good cause within the meaning of Wis. Stat. § 108.04(6).

The commission therefore finds the employee's employment was suspended as a disciplinary action for good cause connected with that work, beginning in week 1 of 2013, within the meaning of Wis. Stat. § 108.04(6).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits in weeks 1 through 3 of 2013.

Dated and mailed August 26, 2013

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The commission is satisfied that the record establishes good cause connected with the employee's disciplinary suspension within the meaning of Wis. Stat. § 108.04(6) and reverses the appeal tribunal decision as a matter of law.

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uploaded 2013/09/27