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

TERRY ARMSTRONG, Employee

EMMPAK FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01605775MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee was a general laborer for the employer, a meat production company, for sixteen months. His last day of work was July 28, 2000 (week 31). He was discharged thereafter in a letter dated August 4, 2000 (week 32).

The issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with his employment.

The parties asserted, and the record indicates, that the employee was discharged.

The employer contented that the employee was discharged for misconduct connected with his work because he violated the employer's drug policy. The commission agrees.

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 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' with in the meaning of the statute."

The employer has a drug policy that requires a drug test for all new hires, after any equipment damage amounting to $500 or more, after an on the job injury that results in lost time or referral for medical attention, when there is reason to believe a worker is using drugs, and in cases of continued attendance or performance violations that lead to suspension. The employer's policy indicates the employer wants a drug free workplace because of safety and attendance concerns.

A worker who tests positive could either be suspended or given a final written warning after a first positive result, depending on the worker's disciplinary record. The policy calls for a second test within 12 months, or for any of the causes referred to above. If there is a second positive result within 12 months, the worker is automatically discharged.

On April 3, 2000, the employee had his first positive drug test result. He was tested because he had been suspended due to continuing unexcused absences. He tested positive for cocaine and marijuana.

On July 28, the employee was tested after an injury at work. On this occasion he was again positive for cocaine.

The employer's policy provides for zero tolerance. The employee admitted using drugs to the human resources manager.

The employee testified that his last day of work was July 28, 2000, when he cut his right ring finger on the band saw he was operating. He cut the tip of his finger bone off and minor surgery had to be done on it. On the day of the accident he gave a urine sample. He had used cocaine and marijuana recently enough so that he knew it would show up. The employee was aware that he would lose his job if he had a second positive result. The employee denied using drugs at work, and stated he was not under the influence while working. He used drugs for recreational purposes. He started drinking and that would sometimes lead to substance abuse. He last used cocaine about four days before his July 28 accident. He did understand that he could be tested on a random basis.

The employer's drug policy, of which the employee was aware, provided for discharge after a second positive test result within a year. The employee was or should have been aware that this policy effectively prohibited off duty use of illegal drugs. The purpose of the employer's policy was to promote safety and to discourage poor attendance, and was reasonable. Therefore the employee's second positive drug test violated the employer's policy and supports a finding of misconduct.

The commission therefore finds that in week 32 of 2000, the employee was discharged for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 40 through 53 of 2000, amounting to a total of $6,136.00 for which he was 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), the employee 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 32, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $6,136.00 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700) issued on September 27, 2000, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed November 29, 2001
armstte . urr : 145 : 1  MC 651.1 MC 651.2   MC 651.4

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. However the commission does not reverse based on a different assessment of witness credibility, but rather because it reached a different legal conclusion from the facts found by the ALJ.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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uploaded 2001/12/04