BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment beneit claim of

STEVEN D. EDWARDS, Employee

Involving the account of

R. B. TRUCKING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 91-603118 MW


The Department of Industry, Labor and Human Relations issued an Initial Determination in the above-captioned matter finding that in week 12 of 1991, the employe was discharged for misconduct connected with his work. As a result, benefits were denied. The employe appealed and a hearing was held before an Appeal Tribunal. The Appeal Tribunal issued a decision on May 9, 1991, which reversed the Initial Determination and found that the employe's discharge was not for misconduct connected with his employment. As a result, benefits were allowed. The employer filed a timely petition for Commission review of the Appeal Tribunal Decision.

Based an the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about three and one half years as a truck driver for the employer, a trucking company. His last day of work was March 19, 1991. He was discharged on March 21, 1991 (week 12).

The employe was off work due to a worker's compensation back injury from August 14 through August 24, 1990; August 27 through November 9, 1990; and
January 17 through February 13, 1991. While off work in January for such injury, the employe smoked marijuana. He was reviewed every ten days by his doctor to determine when he would be able to return to work. He returned to work on February 14, 1991. On March 11, 1991, while the employer's vehicle was being weighed on a scale, it was discovered that the employe's medical certificate had expired, Accordingly, the employe was scheduled for and took his biennial physical on March 13, 1991, as required by the Department of Transportation. A drug urinalysis test was performed in conjunction with such physical.

On March 20, 1991, the employe contacted the employer and informed the employer that be had tested positive for marijuana.   The employe admitted using marijuana. The employer told him that be would not be put on the road until the employer checked the situation out. On March 21, 1991 (week 12), the employer discharged the employe for testing positive for drug use.

The employer has had a drug policy since December of 1990. The employe received a copy of that policy and passed an initial drug urinalysis test performed pursuant to that policy. The employer's policy requires employer to submit to drug urinalysis testing at the time of their biennial physical is required by the Department of Transportation. The employer's policy does not specifically prohibit off-duty drug use but does provide that any driver who fails a drug urinalysis test will be terminated. Independent of the employer's policy, the Department of Transportation regulations applicable to the employer and employe provide that a person is physically unqualified to drive it the person uses controlled substances, and that no driver shall be on duty if the driver tests positive for use of controlled substances. The employe was aware of the Department of Transportation regulations as they related to the use of controlled subtances.

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

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (l941), 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 interest 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' within the meaning of the Statute."

The Appeal Tribunal found that because there was no work-related conduct on the part of the employe to indicate that he was impaired at work due to ingesting marijuana, it was not established that his positive test for marijuana was connected with employment. The Commission disagrees.

The connection of the employe's ingestion of marijuana with his work existed whether or not his ingestion occurred at work or resulted in objectively discernible work impairment. This is so because by virtue of his use of marijuana, the employe rendered himself unavailable for work pursuant to the Department of Transportation Federal Mortor Carrier Regulations. To say that the employe's use of a controlled substance off duty was not connected with his employment ignores the numerous provisions in the Federal Motor Carrier Safety Regulations which prohibit a driver who uses or tests positive for controlled substances from driving.

The employe testified at the hearing that he was aware of the federal regulations which prohibit use of controlled substances such as marijuana.

The purpose of the Federal Regulations implementation of a drug testing program is "to reduce highway accidents that result from driver use of controlled substances, thereby reducing fatalities, injuries and property damage," 49 CFR see. 391.81 (a).

The Federal Motor Carrier Safety Regulations establish the following as a physical qualification of drivers of commercial motor vehicles:

"(a) A person shall not drive a motor vehicle unless he is physically qualified to do so and . . . has on his person . . . a. medical examiner's certificate that he is physically qualified to drive a motor vehicle.

"(b) A person is physically qualified to drive a motor vehicle if that person -

"(12) Does not use a Schedule I drug or other substance identified in Appendix D to this subchapter, an amphetamine, narcotic, or any other habit-forming drug, except that a driver may use such a substance or drug is the substance or drug is precribed by a licensed medical practitioner who is familiar with the driver's medical history and assigned duties and who has advised the driver that the prescibed substance or drug will not adversely affect the driver's ability to safely operate a motor vehicle . . ."

49 CFR sec. 391.41

The regulations further provide that:

"(a) No driver shall be on duty . . . if the driver uses any controlled substances, except as provided in see. 391.97 of this part.

"(b) No driver shall be on duty, as defined in sec. 395.2 of this subchapter, if the driver tests positive for use of controlled substances, except as provided in see. 391.97 of this part.

"(c) A person who tests positive for the use of a controlled substance as defined in 49 CFR Part 40, is medically unqualified to operate a commercial motor vehicle."

49 CFR sec. 391-95 (emphasis added)

The employe used a controlled substance knowing that the result of a positive test would make him unavailable for work. Although he did so while off work due to an injury, he admitted at the hearing that be was evaluated every ten days by his doctor to determine when he would return to work. Thus, he engaged in the use of a controlled substance not knowing whether or when he would be returning to work. His conduct was a clear disregard of the employer's interest in employing workers who are qualified to drive. The Commission does not believe that the employe's actions are ameliorated by the his explanation that be used marijuana due to the pain associated with his injury. He made a voluntary decision to engage in conduct detrimental to the employer's interest, as such his actions were wilful. As to the consequence of his actions as it related to his continued employment, the Commission notes that the employer's drug policy is unambiguous and states:

"V. DISCIPLINARY ACTION Any driver who fails a drug urinalysis test will be terminated. It is a federal regulation that the results of any failed drug test by a driver will be reported to DOT and their license will be suspended."

The employe's voluntary action in using a controlled substance, knowing such use was prohibited by federal regulations and that a positive drug test would result in disqualifying him as a commercial motor vehicle driver making him unable the perform duties for which he was hired, evinced a wilful and substantial disregard of the employer's interest and of the standard of conduct the employer has a right to expect, and therefore constituted misconduct connected with his employment.

The Commission therefore finds that in week 12 of 1991, the employe was discharged for misconduct connected with his work, within the meaning of sec. 108.04 (5) of the Statutes.

The Commission further finds that the employe was paid benefits in the amount of $4,343, for weeks 12 through 21 and 48 through 52 of 1991 and weeks 1 through 6 of 1992 for which he was not eligible and to which he was not entitled, within the meaning of sec. 108-03 (1) of the Statutes and that, pursuant to section 108.22 (8) (a) of the Statutes, he is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the Appeal. Tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 12 of 1991, 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. He is required to repay the sum of $4,343 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700) issued on March 22, 1991, is set aside. If benefit payments become payable based other employment, a new computation will be issued as to those benefit rights. 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 and for a reimbursement employer, to the fund's administrative account.

Dated and mailed February 26, 1992
132 : CD3059   MC 651.4

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: The Commission did not consult with the Appeal Tribunal regarding witness credibility and demeanor. The Commission's reversal of the Appeal Tribunal Decision is based on its finding that the employe's actions were connected with his employment. The Commission has reached a different legal conclusion when applying the facts to the law.

cc: Allen Seneczko, Attorney


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