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


THOMAS H RUTKOWSKI, Employe

HONDO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98601879RC


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately four months as a marketing development manager for the employer, an operator of a soft drink manufacturing and distribution business. The employe's last day of work was January 26, 1998 (week 5). The employe was discharged on January 29, 1998 (week 5) for insubordination stemming from a refusal to take a drug/alcohol test.

On the employe's last day of work, the employer's office manager, William Flahive, received a telephone call from a customer who advised him that the employe had appeared to be acting strangely on his call. The customer indicated the employe was acting "peculiar and was rambling." The customer indicated to the office manager that she believed the employe had been drinking alcohol. As office manager, Mr. Flahive, called Human Resources in Milwaukee to find out what action needed to be taken. Human Resources informed Mr. Flahive to page the employe and ask him to return to the office immediately. After doing so, the office manager then notified the district manager, David Sherfinski, about the employe. Mr. Sherfinski then called the Human Resources department in Milwaukee for advice as well. When there was no answer, he called the Human Resources department in Chicago and received instructions to direct the employe to take a drug/alcohol test that day.

When the employe returned to the office, Mr. Sherfinski approached the employe and informed him that a customer had complained about his appearance and behavior. Mr. Sherfinski explained that the employe was required to submit to a drug/alcohol test based upon this complaint. Mr. Sherfinski also made his own personal observations about the employe and they included that the employe was "acting peculiar, his eyes were glassy, his speech was slurred and he did alot of rambling." Mr. Sherfinski testified that he requested that the employe submit to a drug/alcohol test that day on at least ten different occasions during their conversation.

The employe does not dispute that he was requested to submit to a test so many times. Rather, the employe disputes the chain of command and the manner in which he was requested to submit to the drug/alcohol test. The employe repeatedly inquired about the customer who complained and also asked on numerous occasions to speak with the "attorney" (who turned out not to be an attorney but a company vice-president) who issued the instructions regarding the test. The employe's requests were refused by Mr. Sherfinski and Mr. Flahive.

The employe believed that Mr. Sherfinski and Mr. Flahive were not his direct supervisors but were co-equals in the company hierarchy. The employe's direct supervisor, Tyler Nehls, general manager, was the employe's direct supervisor. Mr. Nehls was out of town on business that day and Mr. Sherfinski testified that when Mr. Nehls is out of town, he is the "acting person in charge." Mr. Sherfinski explained that he is in charge every time Mr. Nehls leaves town for business or is on vacation. Mr. Sherfinski did admit that his instructions to have the employe submit to a drug/alcohol test were received from Chicago and he was not given any authority to terminate the employe. When Mr. Nehls returned from his business trip he then discharged the employe for insubordination for refusing to take the drug/alcohol test. The employer failed to produce any written rules relating to intoxication while on duty or drug/alcohol testing. (1)

The issue for review is whether the employe's discharge was for misconduct connected with his 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' within the meaning of the statute."

The ALJ found that the employe's discharge was not for misconduct connected with his employment. The ALJ reasoned that the employe believed Mr. Sherfinski and Mr. Flahive had no authority over him. The ALJ conceded that a refusal to follow a reasonable directive of a supervisor or submit to the reasonable authority of a supervisor would constitute insubordination and may amount to misconduct. However, the ALJ believed that the employe did not understand he was failing to follow the directives of his supervisors believing that these individuals were his co-workers and did not have permission to order him about. Also, given the employe's requests, the ALJ believed that the employe should have been permitted to talk to the actual individual who ordered the test.

The commission recognizes that while the employe may have believed these individuals had no supervisory authority to deal with the employe, his refusal to submit to the test was unreasonable. Mr. Sherfinski was the division manager and worked for 27 years for the employer. The employe worked only four months for the employer. Even if the employe's understanding that Mr. Sherfinski is a co-equal was reasonable, the employe arguments discount the fact that Mr. Sherfinski was merely implementing instructions from personnel in Chicago. The employe either knew or should have known that his failure to submit to the test could result in termination.

The second reason the ALJ found no misconduct dealt with the employer's lack of documentation as to its rules governing the submission to a drug/alcohol test. The commission however has found instances of misconduct absent written rules regarding intoxication. Brophy v. Cornell Paperboard Products Co., Inc., & Ind. Com. (Circuit Court, 9/15/55). See generally UC Digest, Misconduct 650. In Brophy, the claimant was discharged after he was considered to be under the influence of intoxicants while on duty. The employe alleged that the liquor he had been drinking was medicine but his superior smelled liquor on his breath and observed he talked loudly and in a rather thick manner and made inappropriate remarks. The employe was discharged for misconduct. The Circuit Court, citing Kuroske v. Aetna Life Insurance Company, 234 Wis. 394 (1940), to the effect that firsthand observations may be sufficient to render an opinion that the employe was intoxicated, held that the witnesses who had the opportunity to observe facts upon which they base their opinion may give their opinion whether a person at a particular time was under the influence of intoxicants. The Circuit Court also noted that sobriety is a standard of behavior that the employer has a right to expect of its employes with or without a rule to ensure safety in the employment.

Mr. Sherfinski, in particular, offered very specific observations about the employe's behavior that day. It was Mr. Sherfinski's opinion that the employe had been drinking alcohol, although the employe denied drinking alcohol that day. The commission also concludes that the employe, whose duties included calls on customers, owed his employer the duty of sobriety even without an express rule prohibiting it. Thus despite the production of no work rules regarding alcohol consumption, it still can be held that the employe's refusal to submit to the test and appearing to be intoxicated while on duty evinced an intentional disregard of the employer's interests and of the standards of conduct the employer had a right to expect of the employe.

The commission therefore finds that in week 5 of 1998 the employe was discharged for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits amounting to a total of $1,106.00 for which he is not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe 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 employe 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)2.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 5 of 1998 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $1,106.00 to the Unemployment Reserve Fund.

Dated and mailed: September 18, 1998
rutkoth.urr : 135 : 1 MC 651.7  MC 652.2 

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred with the ALJ as to his credibility impressions and assessment of those who testified. The ALJ found all the witnesses credible. The ALJ explained that he did not resolve the issue of whether the employe was discharged for misconduct on any credibility issue but rather on the lack of an employer's policy and written rules regarding intoxication and submitting to a drug/alcohol test. The commission agrees with the ALJ that the issue was whether the employe's refusal to submit to the drug/alcohol test constituted misconduct within the meaning of Wis. Stat. § 108.04(5), but reaches a different legal conclusion.

The commission believes that the employe's understanding that Mr. Sherfinski was a co-equal was unreasonable. Mr. Sherfinski was a district manager and a 27 year employe for the employer. The employe had worked for only four months for the employer. Even if Mr. Sherfinski was only a co-equal, a co-equal co-worker may still have the authority to order a test when such orders are received by personnel with apparent authority to order such a test. Perhaps the employe should have been permitted to telephone personnel in Chicago, but Mr. Sherfinski's refusal to permit the employe to do so does not provide the employe with a reasonable right to refuse to take the test. See Brophy v. Cornell Paperboard Products Co., Inc., & Ind. Comm. (Circuit Court, 9/15/55) and generally UC Digest, Misconduct 650.

The commission notes that it would have been extremely helpful had the employer produced its written work rules relating to intoxication while on duty and drug/alcohol testing and suggests that for further hearings the employer produce these written rules when attempting to meet its burden of proof. However, in view of the firsthand testimony regarding the employe's condition of intoxication on the day in question, the employer was able to establish, even without the production of a written rule prohibiting such conduct, that the employe's refusal to submit to the test established misconduct connected with his employment within the meaning of the law.

NOTE: Repayment instructions for the amount that must be repaid will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayments of unemployment and other special benefit programs that are due to the state, another state, or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, Wisconsin 53707, to establish an agreement to repay the overpayment.


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Footnotes:

(1)( Back ) All witnesses agreed that the employer had a random drug testing policy in place. However, the situation involving the employe concerned "probable cause" for testing not random testing.