STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

MARK E. DAVIS, Employee

Involving the account of

ROUNDYS INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 93608647MW


The Department of Industry, Labor and Human Relations issued an initial determination in the above-captioned matter which found that in week 13 of 1993, the employe was discharged but that the discharge was not for misconduct connected with his work. As a result, benefits were allowed.  The employer filed a timely appeal to an appeal tribunal.  On December 10, 1993, the appeal tribunal issued a decision which affirmed the initial determination.  The employer filed a timely petition for commission review of the appeal tribunal decision.

Based upon the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for 21-months as a grocery selector for the employer, a distributor of grocery products. His last day of work was March 23, 1993 (week 13). He was discharged on March 31, 1993 (week 14), for violating the employer's drug control policy by testing positive on a drug test.

At the time of the employe's hire, the employer's drug policy provided only for pre-employment drug testing. Approximately 5 months after the employe's hire the employer revised its policy to provide for drug testing after an accident at work which results in an injury. The revised policy was posted on bulletin boards in the employer's workplace. The employe saw the revised policy on the employer's bulletin boards and knew the employer had a drug-free workplace policy.

On March 23, 1993 (week 13), the employe was involved in an accident at work when a motorized pallet mover he was operating ran into the rear of another similar vehicle when the individual operating that vehicle stopped suddenly. The individual reported an injury. Pursuant to the employer's policy, the employe was sent to a local hospital for a drug test. He tested positive for cannabinoids, or marijuana. The employe had consumed marijuana at a party the Friday before the accident. The employe was discharged based on the positive drug test

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, 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 goodfaith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

In this case, the employer's post-accident drug-test policy existed for one and one half years before the employe's accident. The employe testified that he knew the employer's policy was on the bulletin board although he did not read the policy. The employe testified he did not read the policy because of its length. However, given the length of time the policy was available to him, the fact that it was visibly posted, and the fact that the employe acknowledged that the employer had a drugfree workplace, the commission concludes that the employe's discharge was for misconduct connected with his work. The policy was not recently instituted. Rather, it had been available for inspection for one and one half years. The employe cannot insulate himself from the consequences of a policy by failing to apprise himself of the policy when it is readily available to him. Further, even if the employe did not know the specifics, the employe was aware the employer had a drug-free workplace policy.

The commission therefore finds that in week 14 of 1993, the employe was discharged from his employment for misconduct connected with his work, within the meaning of sec. 108.04 (5), Stats.

The commission further finds that the employe was paid benefits in the amount of $4,719 in weeks 19 through 51 of 1993, 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, the employe 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 14 of 1993 and until seven weeks have elapsed since the end of the week of discharge and the employe 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 $4,719.

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 employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits chargeable to a contribution employer's account shall be charged to the fund's balancing account..

Dated and mailed December 16, 1994
132 : CD8387  MC 651.4

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission does not reverse the appeal tribunal decision based on differing assessment of witness credibility but on a different legal conclusion when applying the facts of this case to the law.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 788, Madison, WI 53707, to establish an agreement to repay the overpayment.

A portion of your overpayment is from EUC. Federal law does allow for waiver of an overpayment when the overpayment was not the fault of the claimant and recovery would cause extraordinary hardship. An application for waiver can be obtained by sending a letter to: Unemployment Compensation Division, EUC Unit, P. O. Box 7965, Madison, WI 53707.

cc: 
Roundys Inc.
Continental Investigation and Security Ltd


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