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

CHARLES A CUNNINGHAM, Employee

EMMPAK FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01605076MW


On May 25, 2001, the Department of Workforce Development issued an initial determination which held that the employee's discharge was for misconduct connected with his employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on July 23, 2001 in Milwaukee, Wisconsin before a department administrative law judge. On July 23, 2001, the administrative law judge issued an appeal tribunal decision reversing the initial determination of misconduct. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately three years as a forklift driver for the employer, a meat processing concern. The employer discharged him on May 7, 2001 (week 19), for allegedly having adulterated a urine sample following an injury at work. The commission concludes that the employee did adulterate the sample, and that such was misconduct for unemployment insurance purposes. The commission therefore reverses the appeal tribunal decision.

The employee injured his finger at work on April 27, 2001. Pursuant to employer policy, the employee was subject to a drug screen. The employee initially was unable to provide a urine sample. The employer's nurse drove the employee to a medical clinic for treatment, and asked clinic personnel to obtain a sample from the employee if he were to go to the bathroom. The employee was not able to provide a sample at the clinic.

The employer's nurse was waiting for the employee after his medical treatment, at which time they returned to the plant and the employee was able to provide a urine sample. The nurse properly sealed the sample and sent it to the employer's drug testing laboratory, where the initial test on it indicated that it was not within the parameters of human urine. At this point, the testing ceased and the lab reported back to the employer that the sample had been adulterated. The employer then discharged the employee.

The relevant portion of the employer's controlled substances policy is as follows:

In the event a urine sample is determined to be invalid or unreliable by the outside testing laboratory due to circumstances unrelated to the conduct of the employee or job applicant, the employee or applicant will be immediately notified and will be requested to provide a new sample. If the sample is found to be invalid or unreliable due to circumstances related to the conduct of the employee or job applicant, the employee or job applicant will be presumed to have been incapable of passing the drug/alcohol screen thereby making him or her ineligible for employment in the case of a job applicant, and subject to appropriate disciplinary action, up to and including discharge, in the case of an employee.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The employee's behavior in this case meets this standard. He adulterated a urine sample, presumably in order to avoid failing a drug screen. There is little question but that this conduct by the employee was intentional, and it was in substantial disregard of the employer's legitimate interests in having its drivers not be under the influence of unauthorized controlled substances while at work.

The commission therefore finds that, in week 19 of 2001, the employee was discharged for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee received benefits in the amount of $237 per week for each of weeks 20 through 24 of 2001, totaling $1,185, for which he was ineligible 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 must repay such sum to the Unemployment Reserve Fund. The commission also finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)(2).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 19 of 2001, 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. The employee must repay $1,185 to the Unemployment Reserve Fund. Department form UCB- 700, issued on May 8, 2001, is set aside.

For purposes of computing benefit entitlement, 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed October 23, 2001
cunnich . urr : 105 : 8  MC 652.3

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. It was the administrative law judge's judgment that the employee had not had opportunity to adulterate the urine sample he provided the employer's nurse. The commission's reversal is based upon its conclusion that the employee did have such opportunity and, given the results of the testing by the laboratory, in fact did adulterate the sample.


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uploaded 2001/10/29