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

BENNY C WILSON, Employee

HI-TECH PLASTICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04402301GB


On May 21, 2004, the Department of Workforce Development issued an initial determination which held that the employee's discharge was for misconduct connected with his employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on June 29, 2004 in Green Bay, Wisconsin before a department administrative law judge. On July 1, 2004, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse determination, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately seven months as a shipping/receiving worker for the employer, a plastics manufacturing concern. The employer discharged him for a positive test for unauthorized controlled substances, and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employer has a drug/alcohol abuse policy which provides, in part, that a worker can be discharged for being on company property or conducting company business while "under the influence of drugs." "Under the influence" is defined in the policy as a positive result of any drug in the worker's system after a drug test.

The employee was absent on April 23, 2004, and did not notify the employer of his absence. On April 26, the employee reported to work and informed the employer's operations manager that he was absent on April 23 because he was smoking cocaine. He also informed the operations manager that he had a problem and was seeking treatment in an outpatient program, beginning that morning. The operations manager allowed the employee to go to his outpatient program meeting but, upon his return to the workplace, directed him to report for a drug test. The employee did so, the test was positive and the employer discharged the employee for the positive test on April 30, 2004 (week 18).

In Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 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 Supreme Court of Wisconsin said, in part:

[T]he 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 good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute.

The employer's policy defines "under the influence" to be a positive result on a test for unauthorized controlled substances. The employee conceded that he knew a positive drug test result would result in discharge. The employee also conceded that he knew he could use drugs while off duty and still have a positive drug test result. Given these factors, the employee had to know that the employer's work rules prohibited even off-duty unauthorized use of controlled substances. The employee did not establish by competent medical evidence, finally, that he was unable to desist in the use of the controlled substance in question. The employee's failure thus must be deemed the intentional and substantial disregard of an employer's interests which is misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 18 of 2004, the employee was discharged for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid unemployment benefits in the amount of $307.00 per week for each of weeks 18 through 32 of 2004, and $194.00 for week 33 of 2004, totaling $4,799.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), it also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 18 of 2004, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee must repay $4,799.00 to the Unemployment Reserve Fund.

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 employee 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed December 22, 2004
wilsobe . urr : 105 : 2 MC 651.4    MC 651.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The facts are undisputed; the commission's reversal thus is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission has concluded as a matter of law that the employer's drug policy was sufficiently clear for the employee to know he was subject to discharge for a positive test due even to off-duty use of unauthorized controlled substances.

 


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