DUANE D. DUCAT, Employee

WISCONSIN ELECTRIC POWER CO., Employer

A Department deputy's Initial Determination held that in week 40 of 1988 the employe was discharged for misconduct connected with his employment. As a result, benefits were denied.

The employe timely appealed the Initial Determination and a hearing was held on December 13, 1988 before Administrative Law Judge Janine M. Smiley acting as an Appeal Tribunal of the Wisconsin Department of Industry, Labor and Human Relations. The Appeal Tribunal Decision, issued on February 9, 1989, amended the Initial Determination as to week of issue and reversed it as so amended, finding the employe eligible for benefits.

The employer timely petitioned for review by the Wisconsin Labor and Industry Review Commission. Based on the evidence and applicable law, and having considered the arguments presented by the parties, the Commission makes the following:

The employe worked for about 11 years as a mechanic electrician for the employer, a utility company, at a nuclear power plant which the employer operates. His last day of work was September 19, 1988 (week 39).

The employer is licensed and regulated by the Nuclear Regulatory Commission ("NRC"), which establishes and enforces comprehensive standards and regulations governing the operation of all nuclear power plants in the United States. The NRC has issued a Policy Statement setting forth its expectations that "fitness for duty" plans established by the nuclear power industry, presently accepted by the NRC in lieu of the exercise of its own authority to establish such standards, must at a minimum include provisions that sale, use or possession of illegal drugs within the protected area of a nuclear power plant will result in immediate discharge, that the use of alcohol or abuse of legal drugs within  the protected area of the plant will result in possible discharge, that any other sale, possession or use of illegal drugs will result in immediate revocation of access to vital areas of the plant, mandatory rehabilitation prior to reinstatement of access, and possible discharge, and that effective monitoring and testing procedures to provide reasonable assurance that nuclear power plant personnel with access to vital areas are fit for duty will be established. The NRC policy statement expressly notes that the NRC retains its authority to issue enforcement orders and to suspend operating licenses should significant safety problems be found.

Consistent with the regulations to which it is subject, and with its inherent interest in the safe operation of its enterprise, the employer has adopted rules governing the use of alcohol and illegal drugs by employes. These rules provide, among other things, that any employe engaged in use, possession, distribution, sale, or being under the influence of alcohol, or any illegal drug, while on duty or on the employer's property, shall be subject to termination, and that any employe using, possessing, distributing, selling, or under the influence of any illegal drug while off duty and not on the company's property but which affects the employe's ability to perform his or her job or which results in publicity or circumstances which adversely affect the company or its employes, shall be subject to severe disciplinary action up to and including termination. The employer's alcohol and drug use policy also indicates that the employer may require an employe to submit to a reasonable medical examination which may include a urinalysis and/or blood test.

In September, 1988, the employer was informed by representatives of the Federal Bureau of Investigation and the Manitowoc County Sheriff's Department that an informant then incarcerated in the Winnebago Drug Treatment Facility, David Mrotek, had provided information concerning use and sale of illegal drugs by certain employes of the employer. The employer was informed by both of these law enforcement agencies that they had received credible information in the past from Mrotek and considered him a reliable informant.

A representative of the employer met with Mrotek and obtained a written statement from him, in which Mrotek indicated that five employes of the employer were involved in use and sale of illegal drugs. The employer was able to identify at least one of those five as a present employe, James Lukes, based on information Mrotek provided concerning his residence and personal circumstances.

The employer then interviewed Lukes on September 19, 1988. After consulting with his union representative, Lukes cooperated fully with the employer's investigation, providing a urine sample for testing and a statement concerning his involvement with the use of illegal drugs. Lukes admitted marijuana and cocaine use extending over a period of 15 years, and use of marijuana on an every other day basis for the last 10 years.

Lukes provided a detailed statement in which he identified, by name and by specific recollection, a number of employes of the employer as having engaged in use of illegal drugs both on and off the employer's premises. Specifically with respect to the employe herein, Duane Ducat, he stated that he had been present and observed Ducat and at least four other employes using illegal drugs in the "fisherman's parking lot" on the employer's premises some 10 years before, that he had been present and observed Ducat using cocaine at a party on December 31, 1987, that he and Ducat had been present at the house of another employe when he (Lukes) used cocaine some three months previously, and that he had been present and observed Ducat using marijuana at Ducat's house around September 1, 1988, little more than three weeks before the date of his statement.

Based on the information provided by Lukes, the employer called Ducat to a meeting on September 19, 1988 (week 39) and told him that in view of Luke's statements he would be required to submit a urine sample for testing and to submit to an interview concerning his alleged use of illegal drugs. He was specifically warned that if he refused to cooperate with these requirements he would be viewed as engaging in insubordination and would be subject to severe discipline up to and including discharge. After considering the matter, the employe refused to comply with the employer's requirement that he submit to drug testing. He was then suspended pending further investigation, and escorted from the premises.

A fact-finding meeting was subsequently held on September 26, 1988, at which Lukes confirmed his identification of Ducat as a user of illegal drugs and at which Ducat acknowledged his receipt of the employer's policies concerning drug use and investigations.  On September 28, 1988, the employe's suspension was converted into a discharge, effective September 19, 1988 (week 39).

The issue for decision is whether the employe was discharged for misconduct connected with his employment.

If the employer in this matter were contending that the misconduct for which the employe was discharged was the use of illegal drugs which affected his ability to do his job, it would be necessary for the employer to prove by clear and convincing evidence that the employe engaged in the misconduct alleged. However, such proof is not necessary here because the employer is not contending that the employe was discharged for such drug use. Rather, the employer is contending that the employe was discharged for insubordinate refusal to comply with a directive of the employer, i.e., its directive that he submit to drug testing. It is not disputed that a direct order to this effect was made and that it was just as directly refused by the employe.

The parties agree generally that an employe's insubordinate refusal to comply with a directive of an employer is misconduct if the directive is a "reasonable" one under all the circumstances. This is consistent with the holding of Gregory v. Anderson, 14 Wis. 2d 130 (1961) . The parties disagree, however, over whether the requirement that the employe submit to urinalysis was reasonable here.

The employer argues, and the employe seems to agree, that a critical issue in determining whether the employer's directive that the employe submit to drug testing was reasonable is whether the employer had an adequate basis for suspecting that the employe had engaged in a violation of its drug rule. Thus, the employer contends that the question is whether the employer had a "reasonable suspicion" that the employe had violated the drug rule. The employe argues that the employer was required to have "probable cause" to believe that the employe had violated the drug rule before his refusal to comply with an order to submit to testing could be found to be misconduct. The Commission finds convincing the two decisions cited by the employer, Fowler v. Unemployment Appeals Comm., 537 So. 2d 162 (Fla. App. 5th Dist., 1989), and Ables v. Schultz Steel Co., Precedent Benefit Decision No. P-V-454 (Cal. Unemployment Ins. Appeals Bd., 1987), which applied the "reasonable suspicion" standard in evaluating whether employes' refusals to submit to drug tests were "misconduct" under unemployment compensation laws. The contention of the employe, that a "probable cause" test applies, is therefore rejected, as is the implicit suggestion of the Administrative Law Judge that an employer must have "just cause" to demand a urine sample.

The "reasonable suspicion" standard may be satisfied based on statements of informants reasonably believed to be reliable. There is thus no question here but that the employer had a "reasonable suspicion" to believe that the employe had engaged in the use of illegal drugs off duty and off premises, that he had at least once engaged in the use of illegal drugs on the company's premises, and that his use of illegal drugs spanned a period of 10 years and extended to the use of marijuana within only the last few weeks.

The employe argues, however, that the employer had no basis on which to conclude that the employe violated the employer's rule, since the rule does not prohibit off-duty, off-premises use of illegal drugs per se, but only such use as affects the employe's ability to perform his or her job. The employe argues that nothing about the employe's job performance gave the employer any reason whatsoever to suspect that any off-duty drug use was affecting that job performance. The evidence does establish that the employe's job performance was and had been good, that he had never manifested any aberrant behavior at work, that there had been no change in the level of his performance, and that the employer had no reason to believe that he had ever been under the influence of drugs at work. The Commission finds the employe's argument unconvincing, for two reasons.

First, the question is not merely whether the employer had a reasonable basis for believing that the employe had been under the influence of illegal drugs while at work, but also whether the employer had a reasonable basis for believing that the employe engaged in use of illegal drugs which affected his job performance. Being "under the influence", and being "affected" by drugs, are different. It has been recognized that the lingering effects of the use of illegal drugs can be significant even after the period of immediate intoxication. Alverado v. Washington Power Public Supply System , 759 P. 2d 427, 111 Wash. 2d 424 (1988),  City of Palm Bay v. Bauman , 475 So. 2d 1322 (Fla. 5th Dist. Ct. App., 1985).

Second, the fact that nothing had been noted about the employe's job performance which would suggest that use of illegal drugs was affecting it is not, in the Commission's view, determinative. As a mechanic electrician, the employe's duties included periodic maintenance on equipment essential to the operation of the nuclear power plant, including the repair of pumps and valves, welding, and small tooling. Even if the employe continued to report to work regularly and on time, to apply himself to his job while at work, and to apparently complete assigned tasks, the possibility remains that the skill and ability which he brought to the job and the accuracy and thoroughness of his work were suffering in ways that were not immediately discernible. A nuclear power plant contains innumerable complex mechanical and electrical systems, many of which are redundant or "back-up" systems not routinely used. It is certainly possible, if not likely, that significant errors in the work performed by someone in the employe's job classification could go undiscovered.

Particularly given the nature of the industry in which the employe worked, the Commission considers it unwise to hold in this case that the employer was required to wait until an error was discovered in the employe's work before it could assert a reasonable basis for concern that his illegal drug use was affecting his ability to perform his job. The incidents at Three Mile Island and, more recently, at Chernobyl in the Soviet Union, illustrate the staggering risks associated with failures of mechanical or electrical systems in nuclear power plants. In a nuclear power plant, an error by a maintenance employe in the service of a valve or a gauge which leads to failure of that part, could be disastrous. The significance to this case of the nature of the employe's work and the nature of the industry in which he was employed cannot be overemphasized.

As noted above, the critical issue in this case is whether the employer's requirement that the employe submit to drug testing was a reasonable one. In evaluating this, the Commission has looked to two considerations: the reasonableness of the employer's suspicion that the employe was engaged in the use of illegal drugs, and the reasonableness of the employer's suspicion that any such use of illegal drugs was affecting the employe's ability to do his job. With respect to the first consideration, the Commission finds that the employer's suspicion that the employe was engaged in the use of illegal drugs was a reasonable one given the reliable information provided by the informant concerning the employe's use of drugs over a period of time. With respect to the second consideration, the Commission finds that the employer's suspicion that the employe's use of illegal drugs was affecting his ability to do his job was a "reasonable" one, not only because of the reasonableness of the employer's concern that the effect of off duty drug use can linger for some time (a concern which, as noted, has been validated by a number of commentators), but also because of the critical importance of safety in the employe's job. Thus, the Commission finds that the degree of hazard presented by the prospect of inadequate or faulty performance in a particular job is a factor that may legitimately be considered in evaluating the question of whether an employer's suspicion that illegal drug use affects ability to do that job, is "reasonable."

Thus, for example, if the employe in this case had been involved in a different occupation, or in a different industry, the same outcome might not necessarily have resulted. Given the same evidence as to off-duty use of illegal drugs, an employer's suspicion that the drug use was affecting the employe's ability to do his or her job might, in the Commission's view, not be as "reasonable" as it was found to be here if the employe involved worked in a job in which the potential consequences of poor performance were not so ominous. The Commission considers it neither wise nor necessary, however, to attempt in this decision to anticipate other situations and to prescribe results for those situations. The determination of whether an employer's requirement that an employe submit to drug testing is "reasonable" is peculiarly dependent on the facts of each case, and must be decided on those facts.

The Commission would further note that it has no occasion in this case to decide when, if ever, an employer's requirement that an employe submit to random drug testing, i.e., testing imposed without any individualized suspicion, would be "reasonable" such that the employe's refusal to submit to such testing would be misconduct. The question of the "reasonableness" of random drug testing raises difficult issues not presented in a case such as this, where there were definite and unequivocal grounds for suspicion as to the particular employe who was required to submit to the drug test in question.

For the reasons stated above, the Commission concludes that the requirement imposed by the employer in this case, that the employe submit to a urinalysis test for illegal drugs, was "reasonable" under all the circumstances, and that the employe's insubordinate refusal to comply with that directive was therefore misconduct.

The Commission therefore finds that in week 39 of 1988, the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04 (5) of the Statutes. The Commission further finds that the employe was paid benefits in the amount of $120 for week 40 of 1988, $192 per week for each of weeks 41 through 53 of 1988 and 1 through 12 of 1989, and $280 for week 13 of 1989, amounting to a total of $5,200, for which he was not eligible and to which he was not entitled, within the meaning of section 108.03 (1) of the Statutes, and pursuant to section 108.22 (8)(a) of the Statutes, he is required to repay such sum to the Unemployment Reserve Fund.

The Appeal Tribunal Decision is reversed. Accordingly, the employe is ineligible for benefits based on employment with the employer. He is also ineligible for benefits based on employment with other employers beginning in week 39 of 1988, and continuing thereafter until he has again been employed within at least seven weeks in employment covered by the unemployment compensation law of any state or the federal government and has earned wages in that employment equaling at least 14 times his weekly benefit rate with the employer against whom benefits are initially chargeable. He is required to repay the sum of $5,200 to the Unemployment Reserve Fund. The initial Benefit Computation (Department Form UCB-700), issued on February 21, 1989, is set aside.

Dated and mailed September 5, 1989
110 : CD4258   MC 651.1  MC 651.2  MC 652.1  MC 653.1

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

NOTE: There were no material issues of fact in this case. The Commission has reversed the Administrative Law Judge as a matter of law.

cc: 
Dan Sherman, Business Agent, L.U. 2150 - I.B.E.W.
Thomas Gausden, Attorney, WEPC
William S. Kowalski, Attorney, Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C.

Appealed to Circuit Court.  Affirmed February 23, 1990.

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