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


WARREN S KING, Employe

CITY OF RICE LAKE, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96200696RL


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits, as of week 11 of 1996, if he is otherwise qualified.

Dated and mailed: November 1, 1996
kingwar.usd : 178 : 1 MC 651.1  MC 651.7   MC 652.2  PC 734

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that it was unaware that it would be required to establish the reasonableness of it drug policy because the employe had never raised it as an issue. First, the commission agrees with the employe's attorney that the employe did raise the reasonableness of the policy when he maintained that the drug test violated his constitutional rights. Nevertheless, it remains the employer's burden to establish that the employe's conduct in refusing to take the drug test was an intentional and substantial disregard of the employer's interests whether he raises it or not. In order to do so, the employer must demonstrate that the rule was reasonable, that the employe received written notice of it and that he was aware that his refusal to take the test would place his job in jeopardy. The employer, despite its representation by counsel, failed to offer the rule into evidence even after the ALJ remarked that the rule was not in evidence. An independent judgment as to the rule's reasonableness must be made before the commission can judge whether the refusal to follow the rule was misconduct. Without either the rule itself or a competent witness available to testify to the content of the rule, the employer failed to meet its burden that the drug test policy was reasonable.

The employer further argues that the policy was reasonable because it was created in response to federal mandates. It requests the commission to either accept its judgment of the rule's reasonableness or remand for further hearing so that it may prove its reasonableness. The commission has the authority to remand for additional hearing but that authority is exercised only in extraordinary circumstances such as when newly discovered evidence which a party could not have discovered even with the exercise, of due diligence, becomes available after the hearing. No such exceptional circumstances are present here. The employer failed to provide the necessary evidence for the commission to find misconduct. The commission therefore has no alternative but to affirm the appeal tribunal decision.

cc: ATTORNEY BRIAN H WRIGHT
ATTORNEY STEPHEN L WELD
WELD RILEY PRENN & RICCI SC

ATTORNEY JAMES W FLORY
MISFELDT STARK RICHIE & WICKSTROM


Appealed to Circuit Court. Affirmed October 14, 1997.

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