In the matter of the unemployment benefit claim of
URIELANDIES TURNER, Employee
Involving the account of
LAKESIDE BUSES OF WI INC, Employer
The Department of Industry, Labor and Human Relations issued an initial determination in the above-captioned matter which found that in week 34 of 1993, the employe was discharged but not for misconduct connected with his work. As a result, benefits were allowed. The employer filed a timely appeal to an appeal tribunal. On November 5, 1993, the appeal tribunal issued a decision which affirmed the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision.
On July 19, 1994, the commission ordered that additional testimony be taken before an administrative law judge, acting on behalf of the commission, with respect to whether the employe performed any wage earning services for the employer in August, 1993 after he received notice of his definite return to work. Based on the applicable law, records and evidence in this case, and after consultation with the administrative law judge regarding witness credibility and demeanor, the commission makes the following:
The employe began work as a school bus driver in May of 1990 for the employer, a bus transportation service for students. His last day of work for the 1992-1993 school year was June 6, 1993. The empl oye understood at that time that he would be recalled to work once school started. The employe was not given a definite recall date because the employer normally contacted drivers over the summer by mail and indicated a date in which drivers were to report t o orientation and to select routes.
On July 8, 1993, the employe received a letter from the employer requesting confirmation that he would return to work at the start of the 1993-1994 school- year, August 26, 1993. The employe responded in the affirmative. That notice further notified the employe to report for a mandatory driver orientation meeting in order to select routes on August 14, 1993 (week 33).
The employer services. the Milwaukee Public Schools. Pursuant to its contract with the Milwaukee Public Schools, the employer was required to implement a drug testing policy.
The employer's drug testing policy, effective January 1, 1991, required employes to submit to a drug test, before employment, upon renewal of a commercial driver's license and based on reasonable cause. That policy further provided that any employe engaged in the use of a prohibited substance such as marijuana would be discharged.
On August 12, 1993, the employe renewed his commercial driver's license. On August 13, 1993, the employe submitted to a drug test pursuant to the employer's policy. On August 14, 1993, the employe attended the mandatory orientation meeting and was paid $5.00 for his attendance. The employer discharged the employe on August 20, 1993 (week 34), because the employe's drug test came back positive for marijuana.
The issue to be decided is whether the employe was discharged for misconduct connected with his work
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."
The employe had been employed for three years as a school bus driver. The employe understood at the conclusion of the 1992-1993 school year that he would be recalled by the employer. Although the employe was unaware of the specific date that he would again perform services, the employe knew that he would in fact be recalled and, as of July 8, 1993, his understanding was in fact reaffirmed. As a school bus driver, the employe was aware that he would again perform services for the employer some time in August of 1993. For these reasons, the commission finds that the employe's employment with the employer did continue through the summer.
The employe was aware of the employer's drug policy. The employe was aware that his commercial driver's license would expire and that because of that fact he would be required to submit to a drug test. While the employe maintained at the hearing that the positive-drug test may have been related to medication he was taking for iritis, the employe offered no evidence that such medication could result in a positive drug test. The employer submitted a certified report indicating that the employe tested positive for marijuana. The natural and logical way the employe would have had marijuana in his system so as to cause a positive test would have been by knowing inhalation of marijuana. The commission therefore finds that the employer has satisfied its burden of establishing that the employe violated its policy by the knowing and intentional ingestion of marijuana. It is the employe's burden to present competent medical and/or scientific evidence to demonstrate that his positive test result could have been caused by the medication he was taking. The employe's bare statement that he was taking medication does not, suffice to establish that a positive test could have resulted from such medication. The employer's drug free workplace policy seeks to protect the safety of students, drivers and the general public. Such drug free work policy is reasonable given the fact that it is difficult to determine when and whether an individual is impaired due to the use of controlled substances such as marijuana.
The commission therefore finds that the employe's violation of the employer's drug policy, of which he was aware, did demonstrate an intentional and substantial disregard of the employer's interests and of the standards of conduct the employer has a right to expect and, therefore, constituted misconduct connected with his employment within the meaning of section 108.04 (5), Stats.
The commission further finds, that the employe was paid benefits in the amount of $4,542.00 for weeks 34 and 35, weeks 37 through 45 and weeks 47 through 52 of 1993 and weeks 1 through 19 of 1994 for which he was not eligible, within the meaning of section 108.03 (1), Stats., and to which he was not entitled.
The commission further finds that waiver of benefit recovery in week 19 of 1994 is not required under section 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04 (13)(f), Stats., the overpayment was not the result of a department error. See section 108.22 (8)(c)2., Stats. The overpayment in this case occurred as a result of the commission's reversal of the appeal tribunal decision.
The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 34 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. The employe is required to repay the sum of $4,542.00 to the Unemployment Reserve Fund
Base period wages for 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 for 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 January 13, 1995
132 - 1078 MC 651.4 MC 653.3
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ James R. Meier, Commissioner
The commission did consult with the administrative law judge regarding witness credibility and demeanor. The commission's reversal does not result from a differing impression of witness credibility. Rather, the commission reverses the appeal tribunal decision. because it finds that the employment relationship continued beyond the employe's last day of work in June of 1993 because the employe had a history of returning to work for the employer, and at the time he ended work in June of 1993 understood that he would be recalled to work when school began. The emp loye has not made a threshold demonstration that his positive test result could have resulted from the medication he was taking and therefore the employe did not rebut the inference which flows from the certified drug report submitted by the employer.
NOTE: Repayment The Department will withhold benefits due for future weeks of unemployment in order to offset payment 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 7888, Madison, WI 53707; to establish an agreement to repay the overpayment.
Federal law does allow for waiver of an overpayment of EUC when the overpayment was not the fault of the claimant and recovery would case 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: Lakeside Buses of WI Inc
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