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


SAMUEL C WALLIS, Employe

ROSCOE REDI MIX INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99000149JV


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 employe worked for the employer, a ready-mix concrete company based in Illinois, for five months as a truck driver. He was discharged on August 31, 1998 (week 36).

The employer is part of a consortium of trucking companies which pools workers' names and conducts random drug tests on a certain percentage of the workers from each company each year. On or about August 26, 1998, the employe's name came up for a random drug screen through the outside testing facility used by the companies in this consortium, and he was sent for a drug test. On August 27, 1998, the test came back positive for marijuana metabolites. On August 31, 1998, the plant supervisor notified the employe he was fired based on the result of the drug test.

The question to decide is whether the employe's discharge was for misconduct connected with his employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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 has no written rules or policies regarding drug testing, but contends that it complies with Federal Highway Administration and Illinois Department of Transportation guidelines, and that these rules provide that an individual cannot drive a commercial vehicle with a CDL under the influence of an illegal drug. The employer also indicates that once it is notified of a positive test result, it is an automatic dismissal because it has a "no-tolerance program."

In order for a discharge due to a positive drug test to be considered misconduct, the employer must establish that the testing occurred pursuant to a reasonable rule. The department's policy indicates that it is reasonable for an employer to have a rule which restricts the use of illegal drugs both on the job and off, but that, to be considered reasonable, an employer's rule must meet the following criteria:

(1) The rule prohibits both on duty and off duty use of illegal drugs, is known to the employe, is provided in writing, and spells out the consequences of a positive test result; or

(2) The rule implements drug testing which is mandated by either state or federal law and the employe is provided written copies of both the legal mandates and the consequences of a positive test result.

UI Benefits Manual, Vol. 3, Part VII, Chapter 2, Dec. 1995, Pages 14-14A (emphasis added).

In this case, the employer is implementing drug testing which is mandated by law. However, the department rule contemplates that, where drug testing is mandated by law, the employe must receive a written copy of the legal mandate and of the consequences of a positive test. Here, the employer maintained no written rules, and the employe insisted that he had not received a copy of the legal mandate and was unaware that he could be discharged for a positive test. While the appeal tribunal found that the employe was aware of these matters by virtue of his experience in the trucking industry, the commission disagrees. Even if there was a basis to assume that the employe received a copy of the federal rules when he received his CDL license, those rules do not specifically require employers to discharge workers who have tested positive for drugs. The employe testified that he had worked for a previous employer that had a policy of issuing a 30-day suspension followed by a retest, rather than discharge, and that his understanding was that each employer does things differently. While, in this case, the employer testified that it has a "no-tolerance program," it was the employer's burden to make the employe aware of this fact, and there is no basis to impute such knowledge to him based on his previous work experience as a truck driver. Under all of the circumstances, the commission concludes that the employer did not implement drug testing pursuant to a reasonable rule and that, therefore, a positive test result does not provide evidence of misconduct connected with the employe's employment.

The commission, therefore, finds that in week 36 of 1998 the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits as of week 36 of 1998, provided he is otherwise qualified. There is no overpayment as a result of this issue.

Dated and mailed May 6, 1999
wallisa.urr : 164 : 1  MC 651.1  MC 651.4

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility, but is as a matter of law.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent.
I agree with the administrative law judge and would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner


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