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


EVAN J EVANS, Employee

STEEL KING INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00402341AP


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a metal fabricating company, for about five months as a welder on second shift. His last day of work was June 29, 2000, and he was discharged on July 5, 2000 (week 28).

The employer's rules prohibit "possessing, drinking, using or being under the influence of drugs and/or alcoholic beverages during working hours."

The employer heard rumors that employees were using drugs in its parking lot, and arranged with local police to patrol the parking lot. On June 29, 2000, the employee and a co-worker were arrested in the employer's parking lot. Police officers on the scene observed the employee and his co-worker smoking marijuana in the employee's car and found marijuana and paraphernalia in the vehicle. When the employer's plant manager arrived at the scene he was informed by the police that the employee and his co-worker had been seen smoking marijuana. Based upon this information, the employer concluded that the employee was under the influence of marijuana. When the employee reported for his next scheduled shift, on July 5, 2000 (week 28), the employer notified him he was discharged.

The question to decide is whether the employee was discharged for misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

". . . the intended meaning of the term `misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed `misconduct' within the meaning of the statute."

The employee acknowledged that he knew his co-worker was smoking marijuana, but denied smoking it with him. The commission does not find this denial to be credible. At the hearing the employer introduced police reports which contain statements contradicting the employee's testimony. For example, police chief Wilkinson's report indicates that he observed the employee smoking a cigarette, then saw him "hold a small object up to his mouth with one hand and light a lighter with the other hand, tipping the flame downward," actions which he described as being consistent with someone igniting the contents in the bowl of a small pipe. Chief Wilkinson stated in his report that the employee then appeared to smoke from the pipe and that the co-worker did the same. A second report was prepared by Officer Fields, who did not personally observe the employee smoking marijuana, but who noted that he interviewed the employee and observed that the employee's eyes were bloodshot and glassy. The commission believes that the employee was, in fact, smoking marijuana in the employer's parking lot, and it finds that his possession and use of an illegal substance on work premises and during working hours amounted to misconduct.

The commission, therefore, finds that in week 28 of 2000, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 28 through 43 of 2000 in the total amount of $4,904, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 28 of 2000 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $4,904 to the Unemployment Reserve Fund.

Dated and mailed February 20, 2001
evansev.urr : 164 : 1  MC 651.6

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account and for a reimbursement employer, to the fund's administrative account.

Repayment instruction for the amount that must be repaid will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayments of unemployment and other special benefit programs that are due to the state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 788, Madison, WI 53707, to establish an agreement to repay the overpayment.

MEMORANDUM OPINION

The appeal tribunal did not specifically find that the employee was smoking marijuana, but concluded that his tolerance of his co-worker smoking marijuana in his truck constituted "possession" and was sufficient to establish a violation of the employer's work rule. The commission disagrees with this analysis, as it does not believe that one can reasonably be said to possess illegal drugs merely by virtue of sharing a vehicle with someone else who has them. To the contrary, if the employee was not smoking marijuana and was not shown to have possessed marijuana, then he did not personally engage in any conduct that violated the employer's work rules.

The commission believes, however, that the record contains sufficient evidence to support a conclusion that the employee was engaged in the use and possession of illegal drugs at the work place. Although the appeal tribunal held that the police reports presented by the employer could not be accepted for the truth of the matter, those reports were admissible under Wis. Stat. § 908.03(8). While any statements by third party witnesses contained in the police reports must be disregarded as hearsay, the hearsay exclusion does not apply to those matters to which the police officers would have been able to testify themselves had they been present at the hearing. As set forth in the body of the decision, portions of the police reports do provide admissible evidence supporting a conclusion that the employee was smoking marijuana.

The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that she did not believe the employee's testimony that he was not smoking marijuana, and the commission agrees with that credibility assessment. Having rejected the employee's testimony as incredible, and considering the observations of the police officers as contained in their reports, the commission concludes that the employee was smoking marijuana along with his co-worker. It has, therefore, rewritten the appeal tribunal decision to find misconduct based upon the employee's own conduct.

cc: STEEL KING INDUSTRIES INC


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