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

LARRY D BROOKS, Employee

CUSTOM FREIGHT MANAGING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05607643MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development 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 its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about thirteen months as a truck driver for the employer, a trucking company. His last day of work was August 25, 2005 (week 35).

The first issue to be resolved is whether the employee voluntarily terminated his employment with the employer. If the employee voluntarily terminated his employment, there is a secondary issue as to whether his termination was within any of the specific exceptions in the statutes permitting the immediate payment of unemployment benefits.

The employee had failed a drug test on June 1 and in compliance with the employer's drug policy was to undergo random testing. The employee was also "under federal guidelines" because of his previous failure. The employee was then randomly scheduled to test on August 25. He called the president at 4:45 to complain about the test. The president told him it was "very important" that he take the test and the president had no control over it. The president instructed the employee to stop whatever he was doing and go and take the drug test.

After the positive test, the employee had to sign a statement indicating he knew he would be tested randomly in the future. The employer had to send him for a certain number of random tests within a period of time. The employer had some flexibility as to when the employer had him tested but once the call was made the employer could not rescind it. The drug testing facility was open 24 hours per day. By law, the employer is required to use a 24-hour facility. The employee testified that he did not report to the drug testing site until 5:15 and that he waited for more than half an hour, then left to take his daughter to work. The employee did not ask the workers at the site whether he could return to be tested after taking his daughter to work. The employee called the employer and informed the employer that he could not keep his daughter waiting. The employer informed him that the matter was out of the employer's hands and if the employee did not take the test, it would be considered a refusal. A few days later, the employee asked the employer for the number of the company that was evaluating his particular case. The employee believed he had been suspended until he contacted the company that was evaluating his case. The employee stated he had been given a card and phone number but that he was unable to find it. The employee ultimately found the telephone number in the phone book, called and left a message. He made no sincere effort to immediately contact the company that was evaluating his case to see whether he could take his test later or what he could do about his refusal to take the test. Further, the employee testified that he had to take his daughter to work. While this is important, it was not in the nature of an emergency that would justify his refusal to take a drug test. The employee's actions, in leaving the drug testing facility, in particular since he had already had one positive drug test, and in failing to make arrangements to return to the facility, or to contact the employer or the evaluating company to see what he could do to rectify the situation were inconsistent with the continuation of the employment relationship and for unemployment insurance purposes constituted a quitting.

The employee quit rather than take a required drug test. The employee did not establish that his quitting was with good cause attributable to the employer or for any other reason that would allow immediate benefit payment.

The commission therefore finds that, in week 35 of 2005, the employee terminated his work, within the meaning of Wis. Stat. § 108.04(7)(a) but that his quitting was not for any reason which would allow for immediate benefit payment. The commission further finds that the employee was paid benefits in weeks 36 through 53 of 2005 and weeks 1 through 5 of 2006, totaling $7,544.00, 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), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 35 of 2005, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $7,544.00 to the Unemployment Reserve Fund.

Dated and mailed February 16, 2006
brookla . urr : 145 : 1 VL 1007.01    MC 652.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. He found the employee to be very credible about what happened. The ALJ considered that because the employer was uncertain about the procedure, the employee was not aware of what would happen if he refused to take the drug test. Further, the ALJ thought that because the employee's daughter had three small children to support, the employee would have considered it very important that he give her a ride to work. However, the commission did not find the employee to be particularly credible and infers from the record that the employee was well aware that it was imperative that he take the test, but that the employee failed to take the test because he was afraid he might not pass it. For one thing, the parties agree that the employee when he was told about the test, was also told that he was to drop everything he was doing, leave his work unfinished and take the test. This suggested that the matter was urgent. In addition, he was aware that he was required to take random tests because he had failed a previous test and that this was required by federal guidelines. The employee was aware of federal guidelines for the maximum hours he could work, and should have realized the importance of taking a random test when it was scheduled. In addition, the employee was told his failure to take the test would be considered a refusal. The employer indicted that under the federal guidelines, the refusal to submit to a required drug or alcohol test would mean that a worker could not perform or continue to perform safety sensitive functions. After the employee refused to take the test, he considered himself suspended, yet he took no action to return to work. He failed to contact either the employer or the company who was monitoring his progress. Further, the employee testified he was told the test site closed at 5:00 p.m. but he then testified that he arrived there at 5:15 p.m.

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.I. 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.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2006/02/20