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


KEVIN T WILLINGHAM, Employe

KAUL OIL CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97606611MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about 11 months as a driver of a tank truck for the employer, a distributor of petroleum products. He was discharged on August 20, 1997 (week 34).

The employe was required by law to have a commercial driver's license. The substances he was hauling were hazardous substances under the jurisdiction of the federal department of transportation. The federal government required that random drug tests be taken of employes. The standard set forth by the federal government was that if an employe tested positive for drugs or drug metabolites, he could not drive hazardous substances.

The employer has a rule set forth in its policy handbook that requires employes to comply with state and federal regulations. The employer has a rule in that handbook that a driver shall possess a valid "CDL" (commercial driver's license) and that if an employe's license is revoked for any reason he shall immediately inform the company.

The employer also has an alcohol and drug policy that forbids the consumption, possession or being at work under the influence of alcohol, drugs or other controlled substances on company time. That rule also indicates that refusal to comply with an order for testing will be considered insubordination, grounds for disciplinary action, including discharge.

The employe was given notice that he was required to appear for a random drug test on August 13, 1997. The employe appeared for the drug test and provided a sample. That sample was tested and was reported back to the employer as having 377 nanograms per milliliter of benzoylecgonine, a non-toxic, non-reactive metabolite of cocaine. The cutoff level was 150 nannograms per milliliter. The test result indicated that he had, at some time within the approximately three days prior to taking the test, consumed cocaine. The test does not indicate whether the employe consumed that cocaine during work hours.

The employe was informed of the test results. The employer offered him an opportunity for a retest. He was given several hours notice of the retest which was to have taken place by 1:30 p.m. on August 16, 1997 (week 33), at which time the clinic closed. The employe failed to appear for the test. He did not notify the employer that he had missed the test until he was next in contact with it on August 18. The employe was told that he should meet with the employer on August 20. On August 20, the employer told him that he was discharged because he tested positive on a random drug test.

The employer alleged that by testing positive the employe violated DOT regulations and he demonstrated insubordination in his failure to take the test on August 16.

The issue to be decided is whether the employe's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance 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 appeal tribunal found that there was no work related conduct on the part of the employe to indicate that he had violated the employer's prohibition against on-duty drug possession or impairment. Consequently it held that the employer had not established the employe had committed misconduct connected with his employment when he tested positive for cocaine. The commission disagrees.

The employe was on notice that he was subject to Department of Transportation Federal Motor Carrier safety regulations. Those regulations disqualify a driver from driving if he tests positive for controlled substances. 49 C.F.R. § 391.15 (1997). Moreover, federal regulations forbid an employer from permitting an employe to drive following a positive test for controlled substances. 49 C.F.R § 382.501 (1997). The employe used a controlled substance knowing that the result of a positive test would make him unavailable for work. His conduct was in clear disregard of the employer's interests in employing workers who are qualified to drive. He made a voluntary decision to engage in conduct detrimental to the employer's interest. While the employer's rule does not require discharge in the case of a loss of a CDL the employe did not appear to take a second test. Since the employe also did not appear at the hearing to explain that absence, the commission must conclude that it was done in further disregard of the employer's interests and in violation of the employer's rule's forbidding test refusal. This demonstrated to the employer a continuing disregard for its interests.

The employe's voluntary action in using a controlled substance, knowing such use was prohibited by federal regulations and that a positive test would result in disqualifying him as a commercial motor vehicle driver making him unable to perform the duties for which he was hired, evinced a wilful and substantial disregard of the employer's interests and of the standards of conduct the employer had a right to expect, and therefore constituted misconduct connected with his employment.

The commission therefore finds that in week 34 of 1997, the employe was discharged for misconduct connected with his work, within the meaning of sec. 108.04(5), Stats.

The commission further finds that the employe was paid benefits in the amount of $245 per week for each of weeks 34 and 35 of 1997, and $159 for week 36 of 1997, amounting to a total of $649; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and 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 employe 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. Rather, the overpayment in this case results from the commission's reversal of the appeal tribunal decision.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 34 of 1997, 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. He is required to repay the sum of $649 to the Unemployment Reserve Fund.

Dated and mailed: January 30, 1998
willike.urr : 178 : 7  MC 652.2   MC 692.02

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission has not reversed the administrative law judge's decision based on any differing opinion as to credibility. Rather, the commission has reached a different legal conclusion when applying the law to the facts of the case.

cc: ATTORNEY RUSSELL C BRANNEN JR
O'NEILL CANNON & HOLLMAN SC


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