JAMES D MCMILLAN, Employee

ASPLUNDH TREE EXPERT CO, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 the applicable law, records and evidence in this case, the commission makes the following:

The employe worked for a little over two months as a tree trimmer for the employer, a tree trimming business. His last day of work was on or about December 29, 1995. He was discharged on January 5, 1996 (week 1).

In order to work as a tree trimmer a worker needs a commercial driver's license and a herbicide license. Due to these requirements and the nature of the employer's business the employer has implemented a drug-free workplace policy. Pursuant to that policy, the employer conducts preemployment drug testing of its workers. If a worker begins work prior to testing, a subsequent positive drug test results in immediate discharge of the worker's conditional, probationary employment.

The employe began working for the employer on October 16. On October 19, he signed an acknowledgment that he received and understood the employer's policies. On December 28, the employe provided a urine sample for his preemployment drug test. On January 5, the employer was notified that the employe tested positive, under procedures complying with the Department of Transportation Workplace Drug Testing Program, for marijuana. The employe was discharged that same day.

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

" . . . 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 denied using marijuana during his employment. Rather, the employe maintained that the positive test result could only have occurred because of his presence at a party, during the time he was working for the employer, where other individuals were using marijuana. The employe's contention is not credible. The commission has previously enunciated its policy applied when an employe alleges that a positive drug test result was a result of second-hand exposure. In such cases, where the employer uses the same cut off levels as used by the Department of Transportation, as it did here, the presumption arises that the test result was due to knowing and intentional ingestion of marijuana not due to passive inhalation. Instead, it becomes the employe's burden to establish, by competent medical and/or scientific evidence, that the positive test result could have been caused by passive inhalation. The employe's bare assertion that he was in the presence of others who were smoking marijuana does not suffice.

The employe's testimony that he did not smoke marijuana during his employment is not credible. The employe gave untruthful testimony at the hearing under oath. The employe's untruthful testimony should place him in no better position than an individual who refuses to respond to a question. That is, the negative inference that arises from his untruthful testimony was that he in fact engaged in marijuana use while employed by the employer.

The employer's policy was implemented to protect the health and safety of its workers. The employe was aware of such policy. The employe's violation of that policy evinced an intentional and substantial disregard of the standards of behavior the employer had a right to expect of the employe rising to the level of misconduct connected with his work.

The commission therefore finds that in week 1 of 1996, the employe was discharged for misconduct connected with his employment, within the meaning of sec. 108.04 (5), Stats.

The commission further finds that the employe was paid benefits in the amount of $7,116.00 for weeks 1 through 26 of 1996, for which he was not eligible within the meaning of sec. 108.03 (1), Stats., and to which he was not entitled, and that the total amount of $7,116.00 must be repaid to the department because the overpayment was not the result of any error by the department and/or was caused partially or wholly by the employe, within the meaning of sec. 108.22 (8) (a) and (c), Stats. The overpayment results from the commission's reversal of the appeal tribunal decision.

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 1 of 1996 and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate that would have been paid had the discharge not occurred. He is required to repay the sum of $7,116.00 to the Unemployment Reserve Fund.

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 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 September 4, 1996
mcmilja . urr : 132 : 1  MC 653.3 

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission agrees with the administrative law judge that the employe was not credible in his assertion that the positive test result was caused by passive inhalation. However, the commission believes that given the employe's untruthful testimony, the employe is not entitled to the benefit of the doubt regarding whether his drug usage occurred during or prior to his employment. Further, the employe was tested 73 days after he began his employment with the employer. The department's policy acknowledges that metabolites for drugs may remain in one's system for up to 30 days. Such however was not the case here. See Unemployment Compensation Manual, Volume 3, Parts VII, Chapter 2, pages 14-14a. Therefore, if a positive test result occurs within the first 30 days of employment and is accompanied by a credible denial of usage since the start of such employment, misconduct will not be established. The positive test result in this case came well past this 30 day time period and the employe was not credible in his denial of drug use subsequent to beginning his employment.

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 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: 
Asplundh Tree Expert Co
c/o Mary Stahl

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