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

RICKY E SCHUEPFERLING, Employee

TTI  INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07005007MD


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 about 16 months as a truck driver for the employer, an interstate trucking business. His last day of work was August 29, 2006.

In accordance with federal safety regulations, the employee agreed to unannounced drug testing for a two year period due to a positive drug test during a prior period of employment with the company. He understood that a positive outcome would result in termination.

On August 24, 2006, the employee submitted to a random drug test. On August 29, 2006, the employer notified him that the test was positive for marijuana. The employee denied the use of drugs during his employment and requested a second test for the original sample at another facility as was his right under the employer's policy. The employer provided him with the telephone number of the test facility. The employer discharged him effective September 6, 2006 (week 36). He was unable to contact the medical review officer personally to arrange for the retest under September 20, 2006. As of the hearing, he had not received the second test result.

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 employer presented certified evidence that the employee tested positive for marijuana. The employee was aware that a positive test could result in his discharge. The employee did not provide any credible evidence to refute the accuracy of the reports. The most reasonable means by which marijuana entered his system was by knowing ingestion by the employee.

The commission therefore finds that in week 36 of 2006 the employee 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 employee was paid benefits in the amount of $3,730.00 for weeks 51 and 52 of 2007, and weeks 1 through 9 of 2008, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).  (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 employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental 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, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The commission finds that the employee was paid benefits due to departmental error. Specifically, the ALJ questioned at the hearing, and used as the basis of her conclusion of no misconduct, a perceived inconsistency in the narrative of the Drug Test Report and the attached report. The narrative indicated the employee had a positive test reading of 40 ng/nl, and advised the reader to see the attached report. The ALJ stated at the hearing that the attached report "shows a screen 50 gc/ms of 15." However, the attached report does not purport to show the level at which the employee tested positive, but the cutoff levels, for marijuana and all other listed drugs. The attached report reflects that 50 was the cut off level for the screen test. The cutoff level for the gas chromatography/mass spectrometry test was 15. The report notes, next to marijuana, **POSITIVE." The report indicates that for the other drugs listed, for which the employee was tested, the results were "NEGATIVE." Finally, the reports contain all the necessary certifications and credentials.

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), and the overpayment was the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 36 of 2006, and until seven weeks elapse since the end of the week of discharge and the employee 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. The employee is not required to repay the sum of $3,730.00 to the Unemployment Reserve Fund. The employer's account will be credited with the overpaid amount.

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 employee 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 March 21, 2008
schueri . urr : 132 : 1 : BR 335.02  MC 652.4

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ who presided at the hearing. The commission has reversed the ALJ's decision for reasons set forth above.

 

[Ed. note: The decision is reproduced here as affected by a corrective amendment issued on March 26, 2008]


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Footnotes:

(1)( Back ) The employee requalified as of the new claim week, 43 of 2007, but the maximum benefit amount is reduced to $2,643.00, as a result of the misconduct finding.

 


uploaded 2008/03/24