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

RYAN P SCRENOCK, Employee

BRAKEBUSH BROTHERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09003894BO


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 a year and 36 weeks as a sanitation worker for the employer, a chicken processor and packaging company. His last day of work was on May 21, 2009 (week 21).

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with his employment.

On May 21, 2009, a local sheriff's deputy told the employer that the employee was suspected of illegal use of drugs. The employer asked the employee to take a fitness for duty drug test, which the employee refused, explaining that he was planning to leave of vacation for Florida and did not have time to submit to the test. Under the employer's policy, such a refusal may result in discharge.

On June 1, 2009 (week 23), the employer discharged the employee.

The employer argues that the employee was discharged for misconduct. The commission disagrees. The employee had been allowed to work his entire shift on May 22 and was only informed of the need to take the drug test at the end of his shift. The employee was going to Florida for a vacation with his family. The employee asked the employer what would happen if he did not take the test and the employer said he would be suspended. The employee requested and was given a suspension notice. The employer decided to suspend the employee rather than discharge him because he wanted to review the situation with the corporate attorney and the owners. The employer never informed the employee that if he refused to take the drug test he would be discharged. The employee believed that he would simply be suspended for not taking a drug test. The employee was leaving on a vacation that had been approved by the employer. Had he been informed he would be discharged for refusing to take the test, he may well have complied. The employee was not aware that his employment would end if he refused to take the test at that time. As such, his actions were not inconsistent with the continuation of the employment relationship.

Further, the employee was not insubordinate. He had a reason for refusing the test and specifically asked what would happen if he refused. He was told he would be suspended, which he understood to mean that he would be recalled when the employer decided to recall him. The employee testified that he was never informed that he would be discharged for refusing to take the test. The employee in this case showed extremely poor judgment in failing to take the test as directed by the employer, and should have contacted his family to inform it of the delay and then taken the test. The employee was concerned that staying at work longer would affect the rest of his family, and made a poor decision. However, he was never informed that he would be discharged for not taking the test at the time. As such, the commission concludes that his actions did not amount to 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 23 of 2009, the employee was discharged by the employer but not for misconduct connected with his work, 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, if otherwise qualified.

Dated and mailed January 7, 2010
screnry . urr : 145 : 5  MC 652.2

/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 who held the hearing. The commission did not reverse the ALJ because of a different assessment of witness credibility. Rather, the commission reached a different conclusion when applying the law to the facts found by the ALJ.

cc: Attorney Paul Screnock


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uploaded 2010/01/26