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


ERIC W HALL, Employe

SYSCO CORP, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97601931WB


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 about five months as a selector for the employer, a food distributor. He last worked for the employer in week 7 of 1997, the calendar week ending February 15. He was discharged on February 12, 1997 (week 7).

During the employe's employment the employer had in effect a "FITNESS FOR DUTY POLICY." The policy states that the employer requires pre-employment drug testing and that a positive test result will disqualify an applicant. The policy further states:

"SYSCO prohibits its employees from being under the influence of, using or consuming, possessing, transferring, or selling any amount of alcohol, drugs, or other controlled, mood altering, non-prescription substances on SYSCO premises, in Company vehicles, or during work hours, including breaks and meals. Inappropriate use of prescription drugs is considered a violation of this policy.

Employees may be required to submit (sic) a Fitness for Duty Examination, should any of the following occur:

1) Reasonable Suspicion: When management deems necessary due to unusual appearance or behavior.

2) Post Accident: Whether vehicle, personal injury, property or equipment is involved.

3) Departmental Changes: Whenever an employee transfers to another department (Sales, Office, Delivery or Warehouse).

4) Promotions to Supervision: Anyone being considered for a supervisory position from a non-supervisory position.

5) Random Selection: Those employees subject to Department of Transportation regulations will be placed in a random drug/alcohol testing pool.

A positive test result under any of the above circumstances of testing will result in immediate removal from the work site and appropriate disciplinary action will be taken, which may include termination. Any positive test or any test found to have inconsistent results will be subject to further testing."

The employe was seeking a transfer from warehouse to delivery. Accordingly, he underwent a drug test as required by the employer's policy. The employe tested positive for marijuana. The employer informed the employe that he was being discharged because he tested positive for marijuana. The employe admitted that he smoked marijuana, but stated that he didn't think it would show up on the drug test because he had smoked sometime in January.

The issue to be decided is whether the employe was discharged 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 compensation 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 commission finds that the employe's actions in smoking marijuana, resulting in a positive drug test, violated the employer's policy and as such constituted misconduct connected with his work. The employer's policy specifically states that a positive drug test is grounds for discharge. That policy did not limit its application to positive test results caused by on-duty use of drugs. The employe chose to engage in illegal conduct and took the risk that such conduct, whether undertaken off duty or on duty, would cause a positive test result.

The commission therefore finds that in week 7 of 1997, the employe 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 employe was paid benefits in the amount of $229.00 for week 8 of 1997, for which he was not eligible and to which he 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 employe. Under Wis. Stat. § 108.02 (10e)(a) and (b), department 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, 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 department error as defined in Wis. Stat. § 108.02 (10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found. The commission disagrees with the administrative law judge's rationale that the employe did not have adequate notice that his off-duty conduct was prohibited. The employe did not appear at the hearing in this matter and therefore there was no evidence that the employe believed his behavior was outside the scope of the employer's policy.

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 administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 7 of 1997, and until seven weeks elapse since the end of the week of discharge and the employe 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. He is required to repay the sum of $229.00 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 employe 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 August 15, 1997
halleri.urr : 132 : 1 MC 651.2   MC 692.02

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission's reversal is based on its finding that the employer's policy provided notice to the employe that his off-duty conduct could result in his discharge.

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.C. and other special benefit programs that are due to this state, another state or to the federal government.

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

cc:
SYSCO FOOD SERVICES OF EASTERN WISCONSIN


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