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


FREDDIE WASHINGTON, Employe

ROUNDYS INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97602900MW


On April 10, 1997, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer timely requested a hearing on the adverse determination, and hearing was held on May 16, 1997 in Milwaukee, Wisconsin before a department administrative law judge. On May 21, 1997, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer timely filed a 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 employe in this case worked just over a year as a selector for the employer, a food distributor. His last day of work was March 18, 1997 and he was discharged on March 20, 1997 (week 12), following a positive test for the presence of cocaine metabolites. The administrative law judge held that the employe's discharge was not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04 (5). The commission disagrees and so reverse the appeal tribunal decision.

Section I.F.1. of the employer's Corporate Substance Abuse Policy requires post-accident drug testing. On March 18, 1997, the employe hurt himself while lifting containers of water. He told his supervisor he was hurt and then, pursuant to the employer's policy, filled out an accident report and went to an area hospital for a drug test. The drug test was positive for the presence of cocaine metabolites and, after review of the drug testing results by the employer's Medical Review Officer, the employer discharged the employe.

Misconduct for unemployment compensation purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. Those standards include reasonable work rules promulgated by the employer. Pursuant to section 1.2 of the employer's policy, it was developed to keep its "workplace free from drug or alcohol- influenced employes." Pursuant to section I.A.1. of the policy, it is the company's policy "not to hire or rehire individuals who use controlled substances, in any amount, without a medically acceptable prescription." Section 1.A.2. states: "Any applicant who tests positive for any controlled substances without a medically acceptable prescription will not be considered qualified for employment." As indicated above, the policy provides for post-accident drug testing. Section I.F.4. states: "If the test results [of a post-accident drug test] are positive, the employee will be discharged immediately." Finally, the employer's Substance Abuse Policy Work Rule 1.3 provides: "It is prohibited for any employee on the Company premises or on Company time to engage in work when that employee has . . . unacceptable levels of an illegal substance as determined by proper screening and testing." The commission and courts have held it to be reasonable for an employer to enact work rules prohibiting even off-duty use of unauthorized controlled substances. The employe's positive drug test violated work rule 1.3, and the employe had no legitimate explanation for the positive drug test. The commission therefore finds that, in week 12 of 1997, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04 (5). The commission also finds that the employe was paid benefits in the amount of $226 per week for each of weeks 15 through 39 of 1997, and $211 for week 40 of 1997, totaling $5861 for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1).

The commission finds, finally, that waiver of benefit recovery of benefits received for weeks 21 - 40 of 1997 is required under Wis. Stat. § 108.22 (8)(c), because the overpayment was the result of departmental error and did not result from employe fault as provided in Wis. Stat. § 108.04 (13)(f). The administrative law judge, in finding the discharge not to have been for misconduct, reasoned that the employer's work rules do not specifically prohibit off-duty use of controlled substances. In so reasoning, however, the administrative law judge failed to apply the specific rule to the effect that a positive drug test would result in the immediate discharge of the employe in question. Pursuant to commission precedent, this was error by the administrative law judge warranting waiver of overpayment to the employe. See Brandner v. Stone Container Corp., No. 94604063MW (LIRC 3-8-95). Recovery of benefits received for weeks 21 - 40 of 1997, $4505, is waived. Pursuant to Wis. Stat. § 108.22 (8)(a), the employe must repay benefits received for weeks 15 - 20 of 1997, totaling $1356, to the Unemployment Reserve Fund. Those benefits were not paid due to departmental error, but rather because the adjudicator who issued the initial determination did not have the evidence subsequently sent in on the employer's behalf.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 12 of 1997, 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 the discharge not occurred. He must repay $1356 to the Unemployment Reserve Fund. Recovery of the remainder of the overpayment, $4505, is waived.

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 employe 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 14, 1997
washifr.urr : 105 : 3    MC 651.1  MC 651.2   BR 335.01 

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's determination to reverse the appeal tribunal decision was not based upon a differing assessment of credibility from that of the administrative law judge, but rather because of the employer's work rule 1.3, which specifically prohibits employes from being at work with detectable levels in their bodies of unauthorized controlled substances.

cc: 
ATTORNEY LAURIE PETERSON
LINDER AND MARSACK

ROUNDYS INC


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