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

LEANN T NAHMENS, Employee

MCC WISCONSIN LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09000647BD


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 four years and three months, most recently as a team leader, for the employer, a printing business. The employee last worked for the employer on January 13, 2009 (week 3). The employer discharged the employee from employment on January 19, 2009 (week 4) for testing positive for marijuana.

Prior to the employee's last day of work, the employer had been receiving complaints from other workers about the employee's erratic and moody behavior on the production line. On January 9, 2009, the employer received an anonymous tip that the employee was using illegal drugs. The employer's witness (the human resource coordinator), testified that she received an anonymous phone call from a woman stating she had overheard a conversation at a bar involving some employer's workers and the name "Leann" came up as using drugs while working. The caller told the employer she called because she believed it was a safety concern that one of the employer's workers was working on machines under the influence.

As a result of this anonymous phone call, the following Monday, January 13, 2009, the employer called the employee in to work to discuss what the employee referred to as "people issues." Present at the meeting was the employee, the employer's manager of human resources (via telephone), a production manager and another manager. The human resources manager told the employee that there were some people on the floor talking about drug usage at work and that the employer did not believe the employee was using drugs, but to prove it, they were going to have the employee tested. The employee said she would submit to the test. When the human resource manager got off the phone, the employee informed the production manager, Linda Laehr, that the drug test would probably come back positive because she had "smoked a bowl" at a Christmas party the prior weekend. The employee agreed to the testing because she knew under the employer's policy she could be terminated immediately for refusing the drug test.

The employer discharged the employee for testing positive for marijuana metabolites. The issue therefore is whether the employee's discharge was for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

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 argued the employer did not have cause under its drug policy to test her and therefore she was wrongfully terminated despite a positive test for marijuana. Under the employer's drug policy, which the employee acknowledged having received on April 12, 2005, substance abuse testing is done for pre-employment and "for cause." The employer's policy defines "for cause" as "observed or suspicious behavior, or working in an unsafe manner." The policy also provides that other types of testing such as random, periodic, post-accident and return to duty testing may be employed in appropriate cases as determined by the company. Refusal to consent to any such test or failure to cooperate during any testing procedure or failing to meet any or all of the requirements set forth in the policy would subject an employee to immediate termination.

The employee admitted she was aware a drug test could be ordered if the employer had cause based on "observation or suspicious behavior or working in an unsafe manner." The employee, however, was unaware the employer had received an anonymous call on January 9, 2009 alleging the employee had used drugs. The employer admitted that if the anonymous call had not been received, the employee would not have been subject to the drug test on January 13, 2009. Furthermore, the employee was told that the January 13th meeting was called to discuss "people issues" as she had been warned previously about her moody behavior on the line.

The commission agrees with the employee's argument that the employer had no legitimate basis under its own rules for drug testing the employee. There is insufficient evidence in the record to establish that the employee was observed or exhibited suspicious behavior, including working in an unsafe manner that would have triggered a drug test under the employer's policy. The employer argues that the suspicious behavior was the employee's erratic and moody behavior. However, the employer admitted that the sole reason was for ordering the drug test was the anonymous phone call received on January 9, 2009. The anonymous phone call cannot constitute "cause" under the employer's policy given its hearsay nature. Although the employer could argue the employee admitted the drug test would probably come back positive for marijuana metabolites, that admission was made after the employer told the employee it wanted her tested. The employee's admission therefore did not provide the employer with cause under its policy to order the drug test.

The employer did not have a legitimate basis under its own rules to test the employee and therefore cannot use the positive drug test to argue that the employee's discharge was for misconduct within the meaning of Wis. Stat. § 108.04(5).

The commission therefore finds that in week 4 of 2009, the employee was discharged, but that her discharge was not for misconduct connected with the work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 4 of 2009, if she is otherwise qualified.

Dated and mailed July 24, 2009
nahmele : 135 : 5  MC 652.1

/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 does not reverse the ALJ's decision based on a different impression of witness credibility and demeanor. Rather, the commission reached a different legal conclusion when it applied the law to the facts in this case.

cc: MCC Wisconsin (Watertown, Wisconsin)


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uploaded 2009/07/30