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

DIANE R JAKUBOWSKI, Employe

CITY OF GREEN BAY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98401701GB

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 ineligible for benefits beginning in week 18 of 1998, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $2,030 to the Unemployment Reserve Fund.

Dated and mailed: January 7, 1999
jakubdi.usd : 135 : 7  MC 688.1  MC 651.5

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review, the employe raises several arguments surrounding her discharge. First, the employe contends that she was under duress when she signed the last chance agreement in order to keep her employment. This contention is without merit. The employe was advised by her union representative and signed the agreement to keep her job. The employer provided the employe with an option: sign the last chance agreement or face termination. The commission finds it difficult to conclude that this option was coercive or that the employe was under duress when she signed this last chance agreement in order to preserve her employment.

Second, the employe raises concern with the fact that other employes with similar situations did not receive the same type of discipline. As the ALJ explained at the hearing, these individual situations are not relevant to the employe's case and would have required the employer to delve into confidential information. The issue before the ALJ, and now the commission, is whether the employe's second positive drug test amounts to misconduct connected with the employe's employment. The commission concludes that it does, especially in light of the employe's obligation to remain drug free as a condition of her continued employment.

The employe argues that she has been wrongfully terminated. For unemployment insurance purposes, the issue before the commission is whether the employe's actions rise to the level of misconduct within the meaning of Wis. Stat. § 108.04(5). The employe suggests that perhaps an internal investigation should be considered to prevent similar situations from arising in the future. Again, for unemployment insurance purposes, the only issue is whether the employe's actions rose to the level of misconduct. Concluding that the employe's actions do rise to the level of misconduct, the commission affirms the appeal tribunal decision.

cc: LANNY M SCHIMMEL
ASSISTANT CITY ATTORNEY
CITY OF GREEN BAY

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