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

LYNNARD MC CULLOUGH, Employee

MANPOWER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05004978JV


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 twenty-six weeks as a material handler for the employer, a temporary placement agency. His last day of work was on October 10, 2005 (week 46).

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

Under the employee's "no drug use" policy, a worker is required to submit to a drug test if he is injured on the job. Any worker that fails such a test is discharged.

On October 5, 2005, the employee cut his hand at work while using a knife to "cut down" plastic material. The medical facility that provided care for his injury administered a drug test at the employer's request. The employee provided a urine specimen at 2:52 p.m. He was then sent back to work. The test specimen was later sent by the medical facility to a laboratory for analysis.

When the employee arrived at work, he was required by the client plastic manufacturer to take and pass another drug test prior to being allowed to return to work as a material handler. The test was administered by the employer sometime after 4:00 p.m. and was negative for use of drugs. The employee was allowed to return to work.

On October 10, 2005, the laboratory reported the results of the drug test administered by the medical facility to the employer. The results showed the employee had tested positive for the use of cocaine.

On October 11, 2005 (week 42), the employer discharged the employee.

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 insurance 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 good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute."

The employee denied engaging in illegal drug use and pointed to the negative tests given by the employer to support his position. The commission does not find the employee's denial credible. The employer presented certified evidence that chain of custody procedures were followed and certified evidence of the testing procedures followed and results of such testing. Further, the facility performing the test indicated that it was possible that within an hour or two after the employee supplied the sample tested, the quantity of metabolites could drop below the cutoff level and a repeat drug test would give a negative result. The commission does not find the test performed by the employer, of which little is known of the procedures followed, or the sophistication of the test, to place into question the certified evidence submitted by the employer.

The commission therefore finds that in week 42 of 2005 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $4,360.00 for weeks 42 through 53 of 2005 and weeks 1 through 6 of 2006, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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 departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 42 of 2005, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,360.00 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 otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed February 22, 2006
mccully . urr : 132 : 1 :   MC 652.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding his impressions of witness credibility and demeanor. The ALJ indicated that he credited the employee's testimony and found the employer's testimony suspect regarding the times the testing took place. The ALJ did not impart any demeanor impressions he had of the witnesses that led to his credibility assessments. For reasons set forth above, the commission has reached a different legal conclusion from the facts in the record.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

 

 

ROBERT GLASER, Commissioner, (dissenting):

I respectfully dissent from the majority decision finding misconduct. As pointed out by the ALJ two drug test were administered about an hour apart. While it is true that the certified test showed positive, the second test was done at the employer's direction and showed negative. It was the employer's decision to have a second test performed on a second sample rather than having a split sample taken. Since there were conflicting results it does not make the employee's denial of drug usage incredible. As such I would find that the employee's discharge was not for misconduct.

/s/ Robert Glaser, Commissioner



Appealed to Circuit Court.

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