STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARTIDELL D BERRY, Employee

GOODWILL INDUSTRIES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95603155MW


An administrative law judge (ALJ) for the Unemployment Compensation Division of the Department of Industry, Labor and Human Relations 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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about one and one-half years as a production worker in utility, specifically as a lead worker in laundry for the employer. His last day of work was May 10, 1995 (week 19), when he was discharged.

Prior to March of 1995, the employer's drug policy provided for random testing of workers in transportation. On March 14, 1995, the employer mailed a new drug policy to workers which indicated that the employer was expanding its drug testing to all workers. The policy indicated the employer's dedication to preserving a drug free workplace to guarantee that all workers have a safe, comfortable, and enjoyable place of employment. That policy provided for testing based on reasonable suspicion which included an on-the-job injury or accident. The policy provided that if a worker was tested under the reasonable suspicion portion of the policy, a positive test result would subject the worker to immediate termination.

The employe sustained an on-the-job injury on April 30, 1995. On May 1, 1995, and approximately one month prior to the employe's accident he ingested marijuana. The employe was tested on May 2, 1995, and tested positive for marijuana. The employe had returned to work pending the results of the test and last worked on May 10, 1995 (week 19), when he was discharged for testing positive in violation of the employer's policy.

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

The administrative law judge found that the employe's discharge was not for misconduct because of the positive test result, without evidence of on-the- job impairment, was not sufficiently connected to the employe's work for the employer. The commission disagrees.

In the commission's recent decision in Richard F. Adams v. Penda Corporation, Hearing No. 95002425BO (LIRC, 8/18/95), the commission reaffirmed its position that an employer's drug-free workplace policy, if designed to ensure the safety of the employer's workers, is reasonable and reasonably connected to an employe's employment. The stated purpose of the employer's policy was to provide all workers with a safe, comfortable, and enjoyable place of employment. The employer's interest in safety, and the difficulty in determining impairment, make its blanket prohibition reasonable and violation of that policy by the employe evinced an intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 19 of 1995, the employe was discharged from his employment and 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 for weeks 19 through 36 of 1995, in the amount of $2,908.00 for which he was not eligible within the meaning of 108.03 (1), Stats., and to which he was not entitled.

The commission further finds that waiver of benefit recovery is not required under sec. 108.22 (8)(c), because although the overpayment did not result from the fault of the employe as provided in sec. 108.04 (13)(f), Stats., the overpayment was not the result of a departmental error. See sec. 108.22 (8) (c)2., Stats. Rather, the overpayment in this case results from the commission's reversal of the appeal tribunal decision.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 19 of 1995, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned 14 times the weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $2,908.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB700) issued on May 12, 1995, is set aside. If benefits become payable based on work performed in other covered 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 September 22, 1995
martibe . urr : 132 : 1  MC 651.1 MC 651.4 

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge did not credit the employe's testimony that he did not receive a copy of the employer's policy. The commission likewise agrees that he received such policy. While the employe maintained he could not read, once he obtained a copy of the employer's policy it was his obligation to obtain assistance from friends, family, or the employer to have the policy read to him and ensure that he understood such policy. The commission disagrees with the administrative law judge's legal conclusion that the employe's actions did not rise to the level of misconduct. Accordingly, the commission's reversal is not based on any differing impression of witness credibility or demeanor but is done as a matter of law.

cc: 
Goodwill Industries
Continental Investig & Security Ltd


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