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

MICHAEL P STUSHEK, Employee

GRAPHIC PACKAGING CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02402158AP


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 for about fourteen years as a press helper for the employer, a business that manufactures paper cartons. The employee's last day of work for the employer was April 22, 2002 (week 17).

The employer's policies prohibited workers from using or possessing alcohol or controlled substances while at work. In addition, the employer's policies provided that "an employee who reports for work or who is observed at work under the influence of alcohol or drugs, or who is incapable of safely performing his/her job, will be subject to severe disciplinary action which may include immediate termination of employment." The employer's policy goes on to state that "`under the influence' includes the presence of alcohol or drugs in the body, which may be verified by laboratory tests, or impairment to any degree. . . ."

On April 16, 2002, the employee suffered a work-related injury to his finger due to his failure to follow the employer's safety procedures for the operation of a printing press. Upon being treated for the injury at an emergency clinic, in accordance with the employer's policies, the employee submitted to required testing for the presence of alcohol or drugs in his body.

On or about April 22, 2002, the employer's human resources generalist received a report from the testing laboratory that on April 16 the employee had tested positive for "marijuana." On April 22, 2002, the employer discharged the employee for working under the influence of an illegal drug.

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

The employer argued that, based on the report it received of a positive drug test, the employee was under the influence of marijuana while at work and that for that reason he was discharged. The employer's position is that the employee was discharged for 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."

The ALJ determined that the employee's discharge was not for misconduct. The ALJ found that the employer's policy defined being "under the influence" not with impairment, as would often be understood, but as having a detectable level of marijuana metabolites in his system. The ALJ found that the employer's definition was ambiguous and failed to provide workers with reasonably clear notice that they might be discharged for a positive drug test.

The commission has long held that an employer's policy that provides for discharge upon a positive drug test result, is effectively a policy that prohibits off-duty use. Terry Armstrong v. Emmpak Foods, Inc. UI Dec. Hearing No. 01605775MW (LIRC November 29, 2001). The next issue is whether recovery of overpaid benefits may be waived. In Freddie Washington v. Roundys Inc., UI Dec. Hearing No. 97602900MW (LIRC November 14, 1997), the commission stated:

"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." 

In this case, the employer's policy provided for discharge for being under the influence. The policy informed workers that "under the influence" included the presence of drugs or drug metabolites in the body. The workers were aware that they could be discharged if they had a positive test result. Thus, the employee was or should have been aware that the employer's policy prohibited the off-duty use of marijuana. The employee's actions in regard to using marijuana, under the circumstances, demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work. The ALJ's conclusion that the employer's policy did not apprise the employee that off-duty drug use was prohibited amounted to department error.

The commission therefore finds that in week 17 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 17 through 52 of 2002, and for weeks 1 through 8 of 2003, for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c) because the overpayment was the result of a department error, and the overpayment did not result from the fault of the employee. Repayment of $12,636.00 is waived.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 17 of 2002, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is not required to repay the sum of $12,636.00.

The initial benefit computation (UCB-700) issued on April 25, 2002, 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.

Dated and mailed April 10, 2003
stushmi . urr : 145 : 1  MC 651.2   MC 651.4   BR 335.01 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing because the commission did not reverse because of a different impression of witness credibility and demeanor. Rather, the commission reversed the appeal tribunal decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other 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 over payment.

cc: 
Graphic Packaging Corp (Golden, Colorado)
James B. Schmidt


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uploaded 2003/04/21