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


RICHARD I ORSBURN, Employe

PREFERRED TRANSIT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00002115JV


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 employe is eligible for benefits beginning in week 11 of 2000, if otherwise qualified.

Dated and mailed September 21, 2000
orsburi.usd : 178 : 6  PC 740

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer has petitioned the commission to "reconsider" the appeal tribunal decision finding that the employer failed to prove good cause for its suspension of the employe. It offers newly discovered evidence of its good cause in the form of the preliminary hearing transcript and supporting documents.

The basis of employer's original decision to suspend the employe was the allegations in the criminal complaint that the employe was dealing drugs from its truck. The employer had no independent knowledge of the charges against the employe and the employe has never admitted the conduct. The complaint however does not constitute proof of the allegations contained within it. Moreover, the preliminary hearing transcript offered with the petition as new evidence is still insufficient to prove the employe was dealing drugs from its truck. It constitutes more hearsay, even if this time it was under oath. The admission attached to the transcript does not admit the allegations of drug trafficking or even possession at the time of his arrest. The employe admits some personal use of cocaine at an unspecified time in the past and that he sometimes loaned drugs to friends with the understanding that they would pay him back. The employe does not admit possessing drugs or drug paraphernalia in the truck which was the reason the employer suspended him. The employe has consistently denied the substance of the criminal complaint. Therefore, the commission concludes that the preliminary hearing transcript does not constitute newly discovered evidence under Wis. Stat. § 108.09(6)(c). However, the commission has two years to set aside any final decision on the basis of mistake or newly discovered evidence under that statute. The commission generally finds that a guilty plea, or a conviction following a plea of not guilty, constitutes "newly discovered evidence." When the employer has a certified copy of a guilty plea or judgment of conviction, it may petition the commission to set aside the decision in this case under the two year statute.

A conviction for dealing drugs out of the employer's truck would certainly amount to good cause to suspend an employe's employment. When the employer has proof of such conduct, it should be forwarded to the commission.

cc: ATTORNEY CARL W ROSS
KITTELSON BARRY ROSS WELLINGTON & THOMPSON

RICHARD I ORSBURN


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]