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

ALBERT GALINDO, Employee

ASHLEY FURNITURE INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08003572LX


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 three years in upholstery assembly for the employer, a furniture manufacturer. He last worked on August 15, 2008 (week 33) when the employer discharged him after he tested positive for marijuana use in a random urine drug test based on a specimen provided on August 8, 2008. There was no evidence that he was impaired or under the influence of illegal substances at work.

The employer's substance abuse policy states:

The policy prohibits the use or sale of, attempted purchase or sale of, manufacture of, or purchase of illegal substances. Possession or transfer of illegal drugs and/or alcohol on Company property, in Company vehicles, or during the business day is strictly prohibited. The use of legal drugs that result in an unfit condition will subject any employee to disciplinary action up to and including termination. Refer to the Company Substance Abuse Policy for more information.

The employer's policy further provides that any employee who tests positive as a result of a random/universal drug test will be discharged from further employment.

The issue before the commission is whether the employee's discharge was for misconduct connected with his work.

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 employee was aware that pursuant to the employer's policy a positive drug test would result in his discharge. The employee alleged that although he tested positive for marijuana he was not a user and had a documented drug addiction for marijuana, cocaine and alcohol. As such, he did not view his situation as a willful disregard of the employer's policy, rather he considered it a relapse. The employee testified at the hearing that he had completed two drug treatment programs. The employee views relapse as part of recovery. The employee did not inform the employer that he had a drug problem and the employee did not avail himself of the employer's drug treatment program. However, once the employee was chosen for random drug testing it was too late as the employee needed to report the situation to the employer ahead of time.

In this case, the employee argued that his use of non-prescription drugs off duty was not willful because he was suffering from a drug addiction. However, the employee presented no medical evidence or expert opinion to support his assertion in this regard or to support a conclusion by the commission that the employee was unable to abstain from the use of marijuana. Under the circumstances, the employee's actions in using marijuana when he knew that his off duty use was prohibited by the employer's rules evinced 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 the employer discharged the employee in week 33 of 2008 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 34 through 36, and weeks 48 through 52 of 2008, and for week 1 of 2009, amounting to a total of $1,878.00; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1).

The ALJ in this case based his opinion that the employee was unable to abstain from marijuana use on the employee's lay opinion. The employee had nothing in the way of credible medical evidence to support his self serving assertion that he could not refrain from using marijuana. The ALJ erred because he had no expert opinion to support his conclusion that the employee's use of marijuana was not a willful or knowing violation of the employer's policy, or that the employee lacked a normal capacity to refrain from drug use.

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

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 33 of 2008 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 not required to repay the sum of $1,878 in unemployment insurance benefits. The initial Benefit Computation (Form UCB-700), issued on August 17, 2008, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed January 20, 2009
galinal . urr : 145 : 1 MC 653. 2

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission did not reverse the ALJ's decision because it reached a different credibility determination. Rather, the commission reversed the ALJ's decision as a matter of law.

cc: Attorney Justin Silcox


Appealed to Circuit Court.   Reversed, November 30, 2009.   Appealed to the Court of Appeals.  Circuit court decision reversed and LIRC decision affirmed, in unpublished per curiam decision, March 8, 2011.

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