JAMES E WICKLIFFE, Employee

SNAP ON LOGISTICS CO, Employer

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:

The employee worked six years as a utility operator for the employer, a hand tool manufacturer. The employee's last day of work was November 16, 2010, and his date of discharge was November 17, 2010 (week 47).

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment.

The employer has a substance abuse policy that prohibits working while under the influence of alcohol. The policy defines "under the influence" as being affected in any detectable manner. The employer also has a policy that requires its workers to submit to "reasonable cause" drug and alcohol testing when "management has objective reason to believe that a member may be jeopardizing workplace safety or is demonstrating impaired job performance." The policy further provides for termination if the test results are positive. The employee acknowledged receipt of the employer's policies and agreed to be tested for alcohol and certain controlled substances.

On November 16, 2010 (week 47), the employee's supervisor brought the employee to the office of the employer's human resources manager, reporting that there had been a disagreement between them. The supervisor stated that the employee had been in a different area of the plant. The supervisor indicated that he and the employee argued that the employee was to go back to his normal work area and work. The supervisor reported that the employee said he was taking it upon himself to see what the "hot jobs" were. A hot job is a rush or priority job. The human resources manager then told the employee it was the supervisor's responsibility to determine which jobs were hot jobs. The employee disagreed and said it was his responsibility and that was what he needed to do. The human resources manager determined that the employee's conversation was "scattered." The employee talked to the human resources manager about how it was his job to find the hot jobs and then would "talk about something completely different as far as what his normal job was." He would not continue to talk about hot jobs but talked about other aspects of the job. The employee was not hostile but agitated. The supervisor determined that given the scattered nature of the conversation the employee should be sent for a reasonable suspicion drug and alcohol test. The employee spoke to his union steward and then took the test. The human resources manager took the employee to a testing facility where at 3:31 p.m. he had blown a .266. The second test had a reading time of 3:46 and the employee blew a .265. The technician asked the employee if he would like to do a urine analysis but the employee refused.

On November 17, 2010 (week 47), the employer discharged the employee based on his positive alcohol test result. The employee had tested positive for alcohol on two previous dates in 2006 and 2007.

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 argued that under the circumstances in this case, the employee's positive test result amounted to misconduct. The commission agrees.

The employee argued that a lead worker was disrespectful to him and he merely tried to explain what he was doing. The employee was upset about the lead worker's manner and went to his supervisor to complain but when the situation was not resolved to his satisfaction he asked to talk to the human resources manager. Essentially, it was the employee's position that he did not act in a way that would give the employer reasonable cause to test him. The commission disagrees. The employee had a union steward at the meeting. The employee agreed he was agitated and told the employer that even though he was no longer a union steward people would come to him and complain about the lead worker. The employee agreed that he was agitated and the conversation was not going anywhere so the human resources manager exercised his right to test the employee. The employer decided to test the employee because he could not remain on the subject that was bothering him and even the employee agreed he was acting in a manner which gave the employer cause to test him. Thus, the employer had reasonable cause to test the employee for alcohol.

The employee had tested positive for alcohol in the past and was or should have been aware that he could be discharged for a positive test result. The employee's failure to refrain from drinking prior to reporting to work amounted 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 47 of 2010, the employee was discharged 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 47 of 2010 through 20 of 2011, amounting to a total of $9,348; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

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 employee 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 47 of 2010, 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 required to repay the sum of $9,438.00 to the unemployment reserve fund. The initial benefit computation (UCB-700) issued on November 18, 2010, is set aside. If benefits become payable based on work performed in covered employment a new computation will be issued as to those benefit rights.

Dated and Mailed June 16, 2011
wicklja . urr : 145 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found both parties to be credible. The ALJ did not believe that the employer had reasonable cause to test the employee based on his "scattered" speech because all of his conversation was about work, and he did not begin talking about things that were totally unrelated to the workplace. The commission found that the human resources manager's testimony that the employee's conversation was scattered in that he would not remain on the topic of hot jobs but would wander off into different aspects of the work provided the employer with reasonable cause to test the employee.

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

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

cc: Snap On Logistics Co. (Milwaukee, WI)

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uploaded 2011/08/15