STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

MERRICK MALONE, Employee

Involving the account of

MESSER GRIESHEIM INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 9360676MW


The Department of Industry, Labor and Human Relations issued an initial determination in the above-captioned matter which found that in week 29 of 1993, the employe was discharged for misconduct connected with his work. As a result, benefits were denied. The employe filed a timely appeal to an appeal tribunal. On September 17, 1993, the appeal tribunal issued a decision which reversed the initial determination and found that the employe's discharge was not for misconduct connected with his work. As a result, benefits were allowed. The employer filed a timely petition for commission review of the adverse appeal tribunal decision. By order dated June 1, 1994, the commission ordered that further testimony be taken before an administrative law judge acting on behalf of the commission, with respect to the merits of the case.

Based on the applicable law, records and evidence in this case, and considering the new testimony taken at the remand hearing, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about 15 months as a material handler for the employer, a firm engaged in the manufacture of flame cutting machines. He was discharged by the employer on July 13, 1993 (week 29), his last day of work.

At the time of hire, the employe received a copy of the employer's drug and alcohol control policy that provided for discharge by the employer upon the receipt of a report of a positive test for a controlled substance. The employe was required to submit to a random test on July 9, 1993, which was returned by the laboratory as positive for cocaine. Although the employe denied using cocaine, he was terminated by the employer for violation of its drug and alcohol policy based on his positive test result for a controlled substance.

The issue to be decided is whether the employe's discharge was for misconduct connected with his work.

The commission determines that his actions did constitute misconduct and therefore reverses the appeal tribunal decision.

The employer presented a certified drug testing report which indicated that the employe tested positive for cocaine. Such test was confirmed by the use of the gas chromatography/mass spectrometry test. Such certified drug test is prima facie evidence that the employe had cocaine in his system. The natural and logical way the employe would have a positive drug test for cocaine is by knowingly ingesting cocaine. The employe did not appear at the remand hearing to dispute the results of the employer's certified drug test.

The employe's use of cocaine, which resulted in a positive test result in violation of the employer's policy, evinced a wilful and substantial disregard of the employer's interests and of the standards of conduct the employer has a right to expect and, therefore, constituted misconduct connected with his work.

The commission therefore finds that in week 29 of 1993, the employe was discharged from his employment for misconduct connected with his work within the meaning of sec. 108.04 (5), Stats.

The commission further finds that the employe was paid benefits in the amount of $4,836 in weeks 30 through 62 of 1993 and weeks 1 through 7 of 1994, for which the employe was not eligible and to which the employe was not entitled, within the meaning of sec. 108.03 (1), Stats., and that, pursuant to sec. 108.22 (8)(a), Stats., the employe is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 29 of 1993 and until seven weeks have elapsed since the end of the week of discharge and the employe 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 initial Benefit Computation (Form UCB-700) issued on July 19, 1993, is hereby set aside. If benefit payments become due based on other covered employment, a new computation will be issued as to those benefits rights. The employe is required to repay the sum of $4,836 to the Unemployment Reserve Fund.

Dated and mailed July 19, 1994
132 : CD3482   MC 652.4  PC 733

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The commission did not consult with administrative law judge regarding witness credibility or demeanor. The commission does not reverse the appeal tribunal decision based on a different assessment of witness credibility. The appeal tribunal originally found that the employer did not meet its burden of proof in establishing that the employe violated its policy by having a positive drug test result because the employer did not present certified forms at the hearing. However, upon petition for commission review it was determined that the employer was not sent the necessary forms and therefore did not have the opportunity to present the certified forms at the hearing. The employer did present such certified forms at the remand hearing and therefore the commission has reversed the appeal tribunal decision based on evidence not before the appeal tribunal at the time the appeal tribunal issued its original decision. As noted in the commission's decision, the employe did not appear at the remand hearing to dispute the accuracy of the employer's certified reports.


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