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

KEAON S BRODIE, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07601985MW


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 four years for the employer. His last day of work was February 7, 2007 (week 6). At that time, he was suspended pending a decision as to his employment status. On February 21, 2007 (week 8), he was discharged.

The initial issue to be decided is whether the suspension of the employee's employment during weeks 6 and 7 of 2007, was a disciplinary action for good cause connected with the employment.

The purpose of the suspension was to review the situation that occurred on the employee's last day of work and to give the employer time to make a decision as to whether he would be discharged. It was not a disciplinary action separate and distinct from the discharge. As such, it was not the type of suspension covered by the disqualifying section of the statutes.

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

On the employee's last day of work, a supervisor detected the odor of alcohol on him when he appeared at an office. He was asked to remain in the office while another supervisor was contacted in order to join them. He got on the phone and while on the phone stepped out into a hallway after the supervisor asked him to remain in the office. He was informed that he needed to return, and was told that if he did not do so, the employer would consider him insubordinate. He rolled his eyes at the supervisor and continued walking. While on the phone in the hallway, the employee shouted comments, including the statement, "I could take this motherfucker out too."

When the second supervisor arrived, the employee returned to the office. The employer contacted a representative of the employee's union and the union representative was unable to come to the office. The employee spoke to the union representative on the phone, and the employer informed the employee that he had to take a test to detect the presence of alcohol and the employee stated he would not take a "mother fucking" test. The employer's policy provides that refusal to take a test shall be noted and recorded and the employee shall immediately be removed from the worksite. The policy further provides that refusal to take a drug and alcohol test will constitute just cause for discipline up to and including discharge. The policy does not provide that the employee has the right to refuse to take a test unless a union representative is present.

The employee said he was going home. The employer informed the employee that he was being suspended so that the employer could make a determination as to what discipline to administer.

The employee in this case refused to take a drug test, despite the fact that the employer established that it had reasonable suspicion that the employee had been drinking. In fact, the employer was reasonable in inferring, from the employee's behavior, that the employee had drunk a significant amount prior to appearing for work. The employer's policy provides that a worker who refuses to take an alcohol test shall be immediately removed from the worksite and disciplined. The employee flat out refused to take a "mother fucking" test. The employee spoke to his union representative on the telephone. The employer's policy provides that a worker should be informed of the right to have a union representative present but if the representative fails or refuses to be present within 30 minutes of his or her notification the employee must be informed of this. The policy cannot be read to mean that each worker has the absolute right to refuse the test if the union representative is not present, for the simple reason that if that were the case, the employer would be powerless to administer any tests for the union representatives could always simply refuse to be present. Therefore, the most logical interpretation is that put forth by the employer, that contact with the union by telephone is sufficient. The employee's actions in refusing to take a drug test, in particular in such an unreasonable and insubordinate manner, demonstrated such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 6 and 7 of 2007, the employee's work was suspended but not as a disciplinary action for good cause connected with that work, within the meaning of Wis. Stat. § 108.04(6).

The commission further finds that in week 8 of 2007, the commission was discharged 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 for each of weeks 8 through 32 of 2007, amounting to a total of $6,850.00; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), 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)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits for weeks 6 and 7 of 2007, if otherwise qualified. The employee is ineligible for benefits beginning in week 8 of 2007 and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $6,850.00 to the Unemployment Reserve Fund.

Dated and mailed October 26, 1997
brodike . urr : 145 : 8   MC 652.2

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The ALJ found as facts that the employee failed to adhere to the supervisor's order that he remain in the office and that the employee stepped into the hallway after the supervisor asked him to remain in the office. He further found that while on the phone, the employee yelled a statement that the supervisor felt was a threat. The employee testified that he said something similar to he could "take this motherfucker out too." The employee was uncertain of his exact words but agreed he made a statement to this effect but argued that he was referring to his neighbor when he made the statement. The commission concludes that looking at the statement in the context in which it was made the supervisor was justified in concluding that the comment referred to the supervisor. The ALJ further found that the employee refused to take the test after he had been asked to do so. The employee specifically testified that the union representative told him that he could be suspended if he did not take the test. The ALJ reached his conclusion that the employee's actions were not misconduct in large part based upon the fact that the union representative was not able to be present. The commission disagrees that the policy provided that the employee had an absolute right to a union representative to be there in person when he was taking the test. The commission concluded that the employee's actions in refusing to take the alcohol test under the circumstances presented in this case amounted to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

 

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 Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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