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

CHRISTOPHER P BARTOSH, Employee

MOTION INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02201209EC


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 worked about 11 years as a fluid power specialist for the employer, a distributor of industrial parts. His last day of work was April 8, 2002 (week 15), when he was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment.

The employer had a policy that required sales representatives, managers, and anyone who operated a company motor vehicle to submit to an annual drug test. The policy further provided that a positive result for illegal drugs would result in immediate termination of employment. The employee was aware of the employer's policy. He drove a company vehicle and underwent an annual drug test in prior years.

On April 3, 2002 (week 14), the employee was requested to undergo the annual drug test. He did so. He was notified that the test was positive for marijuana metabolites. The employee had smoked marijuana while on vacation in Amsterdam during the previous week. On the last day of work, the vice-president told the employee that he was being discharged for violating the company policy.

The employer contended that the employee's actions constituted misconduct connected with his employment. 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."

Here, the employer's policy prohibited off-duty drug use, in the sense that a worker testing positive for drug metabolites in his or her system would be discharged. In this case, the employer was sent the department's drug testing forms. However, the employer did not have those forms filled out completely. Therefore the employer's evidence did not establish that the employee actually had marijuana metabolites in his system. However, the employee admitted smoking marijuana while on vacation in Amsterdam. The commission appreciates that marijuana use may be legal in Holland, however, the fact is that the employer's rules specifically indicate that a worker will be discharged for off-duty use of marijuana. Because he drove a company vehicle, the employee knew he was subject to random drug tests. Also he was or should have been aware that smoking marijuana outside the workplace could result in his discharge. His actions therefore demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his employment.

The commission therefore finds that in week 15 of 2002, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 15 through 21 of 2002, amounting to a total of $2,563.00 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 15 of 2002, 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 is required to repay the sum of $2,563.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on April 9, 2002, is set aside. If benefits become payable based on other 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed September 18, 2002
bartoch . urr : 145 : 8  MC 651.2   MC 692.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse because of a different impression of witness credibility but rather because it reached a different conclusion when applying the law to the facts found by the ALJ.

cc: 
Sheakley Uniservice Inc.
Theresa Coleman -


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