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

KELLI R ZUTZ, Employee

WALGREEN CO ILLINOIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05608219MW


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 three years for the employer. Her last day of work was October 5, 2005 (week 41), when she was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with her employment.

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 employer alleged that in June of 2005, the employee failed a random drug test. As a result the employee signed a Last chance Agreement. The employee was to go through counseling and rehabilitation and was required to phone in to a drug testing site daily to see whether she was to have a random test.

The employee failed, on one occasion, in about the middle of August, to call the drug test site. As a result she was told she missed her testing, due to her failure to call the test site. It was not clear from the information presented by the employer that the failure to call the site would be considered failing the drug test.

The employee called the test site and was to take a test on September 30, 2005. The employee then contacted the store manager. She informed him she had missed her test and was concerned she would be discharged. She explained to him that she could not immediately get a babysitter for her child and arrived after the test site had closed. The store manager told her that he would see whether there was anything that could be done to preserve her employment. The manager asked the pharmacy supervisor if there was a loophole that would enable her to keep her job. The store manager or the pharmacy supervisor contacted Employee Relations and the overall district pharmacy manager, and ultimately learned nothing could be done. This investigation resulted in a delay in conveying the employee's discharge to her and she was discharged on October 5, 2005.

In this case, it was not clear that the employee was aware that if she failed to call the testing site this would be considered refusing to take a test. With respect to the final occasion, the employee attempted to get to the test site and take the test. However, she was unable to get there before it closed because she needed to find child care for her son. She immediately reported this occurrence to the manager. In this case, the employee did not willfully refuse to take a test, and in fact reported to the testing site. While the employer may have made a valid business decision when it discharged the employee, the employee's actions did not amount to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 41 of 2005, the employee was discharged but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, the employee is eligible for benefits beginning in week 41 of 2005, if otherwise qualified.

Dated and mailed March 7, 2006
zutzke . urr : 145 : 1   MC 651.5  MC 652.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The employer, in its petition for commission review, argues that the employee was discharged for failing to abide by a signed Last Chance Agreement. The employer argues that the ALJ was mistaken when he concluded that the last chance agreement was not needed. The commission agrees that the employee was discharged because she failed to comply with the terms of a last chance agreement that she had signed. However, the employer explained that the employee, on the second occasion, was unable to immediately report to the test site because she had to find someone to watch her child. The employee ultimately found childcare and then reported to the test site but the site was closed. As such, her refusal to take the test was not intentional and her actions did not rise to the level of misconduct connected with her work.

cc:
Centurion Investigations Inc.
Walgreens Co. (Deerfield, Illinois)
Walgreens Co. (Milwaukee, Wisconsin)


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