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

JAMES E THOMAS, Employee

BUSSE  SJI  DIVISION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01400081AP


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for 17 years as an assembler for a conveyor manufacturer. His last day of work was November 6, 2000 (week 46).

On the employee's last day of work, he refused to take a random drug test when required to by the employer. The employer had recently amended its drug policy to provide for random testing of at least three individuals per calendar quarter. The employee was selected by the employer's drug testing facility to participate in the second batch of random tests. He refused to submit to the test. He believed he was chosen for the test in retaliation for prevailing in an unemployment hearing against the employer two work days earlier. The employer's policy provided that the employee compliance with the testing procedure was a condition of continued employment. The employee did not work after that time.

The issues are whether the employee quit when he refused to submit to the drug test and if his reasons for doing so amount to good cause attributable to the employer.

The employer's drug policy made clear that compliance with the random drug testing policy was a condition of his continued employment. The employee was aware of this and signed a form indicating that he understood the policy. When the employee subsequently refused to take the drug test on November 6, he prompted the employment separation. His actions were inconsistent with an intention to continue the employment relationship and thereby constituted a quitting. Dentici v. Ind. Comm., 264 Wis. 181, 186 (1953). As the supreme court held in Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980), the statutory concept of voluntary termination is not limited to the employee who says "I quit" and conversely it may encompass a situation where the employer discharges the employee, such as occurred here.

Concluding that the employee voluntarily terminated his employment, the next issue is whether the employee's refusal constitutes "good cause attributable" to the employer for quitting within the meaning of Wis. Stat. § 108.04(7)(b).

The employee maintained that the test was not random but given to him in retaliation for pursuing an unemployment appeal. While the employee asserted that it was retaliatory, he offered nothing to support his bald statement. The employer testified that the employee was not chosen by it but was chosen by the testing facility. Without some more concrete evidence of retaliation the commission will accept the employer's testimony that the test was not retaliatory. Under these circumstances, the commission believes that the employee voluntarily terminated his employment by refusing to take the drug test and that his refusal was unreasonable and fails to provide him with any exception to the quit disqualification found in Wis. Stat § 108.04(7)(b), Stats.

The commission therefore finds that in week 46 of 2000, the employee voluntarily terminated his employment but not for good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b), or within any other statutory exception that would allow benefits.

The commission further finds that the employee was paid benefits amounting to a total of $5008, for week 46 of 2000 through week 28 of 2001, for which he is not eligible and to which he is 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 decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 46 of 2000 and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the amount of $5008 to the Unemployment Reserve Fund.

Dated and mailed September 27, 2001
thomaja . urr : 178 : 3   VL 1007.01  VL 1080.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission consulted with the ALJ prior to reversing. The ALJ offered no credibility basis for her decision but was struck by the timing of the unemployment insurance hearing so close to the drug test. The commission does not find the timing alone so suspicious as to overcome the employer's testimony that the test was random. The commission therefore accepts that the test was random.

cc: 
Arrowhead Conveyor
Attorney Andrew A. Jones


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uploaded 2001/10/02