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


LEROY E PHILLIPS, Employe

STOUGHTON TRAILERS INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 95005516MD


On November 17, 1995, the Department issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer timely requested a hearing before an administrative law judge. A hearing was conducted and on January 12, 1996, the administrative law judge issued an appeal tribunal decision, affirming the initial determination, finding that the employe was discharged but not for misconduct. The employer timely petitioned the commission for review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission reaches the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately seven years as an assembler for the employer, a manufacturer of truck trailers. The employe was discharged on July 14, 1995 (week 28). The employer has in place a drug policy that provides for random drug testing (ten workers are selected every week). In February of 1995 the employe testified positive for marijuana. The laboratory test results regarding this positive test were admitted into evidence. At that time the employe was told that he could be randomly tested again and received a three day suspension. The employe was also referred to the "Share" program which is a program that the employer runs in conjunction with the local hospital to determine whether substance abuse counseling is needed. The employe completed the Share program and was tested in March of 1995. The test result was negative. The employe was on vacation in the first week of July of 1995. The week the employe returned from vacation he was subject to another drug test. This drug test, again confirmed by laboratory results, indicated a positive test for marijuana. In light of the employer's discipline, the employe was subject to termination and accordingly was discharged on July 14, 1995.

Relevant portions of the work rule provide the following:

". . . The use of drugs or controlled substances, (that are not prescribed) on the Company premises is strictly prohibited. The sale, transfer or possession of open intoxicants or controlled substances (that are not prescribed) on Company premises is strictly prohibited. Company vehicles as well as private vehicles parked on Company premises are included in this prohibition.

. . . Our policy also prohibits participation by an employe who is involved in off the job activity involving illegal drugs or other controlled substances (that are not prescribed). For the purposes of this policy, `involved' includes but is not limited to, the use or sale of illegal drugs or controlled substances (that are not prescribed). Ensuring the health and safety of all of our employes is a prime concern." (Emphasis added).

The issue for review is whether the employe's discharge was for misconduct. 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 compensation 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 administrative law judge concluded that the employe's discharge was not for misconduct. The administrative law judge found that although the employe admitted that he may have used drugs at a party during his vacation, the employer did not have a drug policy which prohibited the off duty use of drugs. Consequently, the administrative law judge reasoned that the employer's policy did not place the employe on notice that his practice could result in dismissal or forewarn him that he could test positive in the week following the use of a drug.

The commission concludes that the administrative law judge's findings and conclusion of law are contrary to the record. The employer's drug policy strictly prohibits the off duty use of illegal drugs. Consistent with numerous commission decisions as well as court decisions, employers can govern off duty use of illegal substances if the policy is designed to ensure the safety of the employer's workers, the public or improve productivity. Miller Compressing Company v. LIRC & Flowers, Milwaukee County Circuit Court, Case No. 88-CV-017755 (1989); Jonathan Fidler v. Stoughton Trailers, (LIRC 10/28/92); Jayson Storts v. Springs Window Fashions Div. Inc., (LIRC 6/11/93); Jeffrey R. Brandner v. Stone Container Corp., (LIRC 3/8/95) and finally, Richard F. Adams v. Penda Corporation, (LIRC 8/18/95). The purpose of the employer's policy in this case encompasses nearly all the concerns recognized by the courts and the commission as reasonably related to the employer's interests and which make a policy proscribing off duty drug use reasonable. Furthermore, since Miller, the commission has found that off duty drug use, if proven, in violation of reasonable work rules, is misconduct. The employe's conduct here is no exception to the commission's general policy. The employe's second positive drug test in six months violated the employer's prohibition of off duty drug use and consequently supports a finding of misconduct.

The commission therefore finds that in week 28 of 1995, the employe was discharged for misconduct connected with his work within the meaning of section 108.04 (5), Stats.

The commission further finds that the employe was paid benefits in the amount of $227 for weeks 44 and 45 of 1995, $95 for week 46 of 1995, $227 for weeks 47 of 1995 through 17 of 1996, and $132 for week 18 of 1996, amounting to a total of $5,902.00, for which he is not eligible and to which he is not entitled, within the meaning of section 108.03 (1), Stats.

The commission further finds that waiver of benefit recovery is required under section 108.22 (8)(c), Stats., with regard to benefits received for weeks 2 through 18 of 1996, because the overpayment was the result of a department error, and the overpayment did not result from the fault of the employe. Repayment of $3,764.00 is waived; the employe must repay $2,138.00 in benefits he received for weeks 44 of 1995 through 1 of 1996.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 28 of 1995, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay $2,138.00 to the Unemployment Reserve Fund.

Dated and mailed: July 24, 1996
phillle.urr : 135 : 1  BR 335.01  MC 651.1  MC 651.2   MC 692.02

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission's reversal of the appeal tribunal decision is not based upon a different assessment of credibility or demeanor. Rather, the commission found departmental error, based upon the administrative law judge's failure to find that the employer strictly prohibited the use of off duty illegal drug use. This omission of fact led the administrative law judge to conclude that the employer did not prohibit such conduct and that the employe was never warned that such conduct was prohibited by the employer. Consequently, this error of fact lead the administrative law judge to conclude that the employe's discharge was not for misconduct. However, the record establishes that the employer strictly prohibits off duty use of illegal substances and that the employe violated this work rule leading to his discharge for misconduct connected with his employment. A portion of the employe's overpayment is waived within the meaning of section 108.22 (8)(c), Stats., based upon the administrative law judge's error and since the overpayment did not result form the fault of the employe.


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