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


JOYCE L FIRKUS, Employe

BORG WARNER PROTECTIVE SERVICES CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98004511WU


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 about four months as an assembler for the employer, an employment staffing business. Her last day of work was October 5, 1998 (week 41).

The employer's policy prohibited "the use of alcohol, illegal drugs, or any controlled substance. . ." It enforced this policy through a testing procedure which was conducted at the time of hire and then, after 90 days upon her transition to a permanent hire by the employer's client business at which she worked.

The employer administered a drug test at the time of hire and received a report of negative results. The employe was assigned to work at a window manufacturer. On September 8, 1998 (week 37), the employe was required to submit to a drug urinalysis to which she complied as a prerequisite to being hired by the window manufacturer. On October 5, 1998 (week 41), the employer was notified that the employe tested positive for marijuana use and the employer discharged her.

The issue which must be decided is whether the employe's discharge was for misconduct connected with her work.

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."

In this case, the employe tested positive for marijuana, despite the fact that she was aware that the results of a positive drug test would result in her disqualification as a candidate for employment with the window manufacturer. The employe suggested that her test was positive because of second-hand smoke. However, there is nothing in the record to support a finding that second-hand smoke would result in a positive test for marijuana, and the commission does not find her testimony in this regard to be credible. The employe's failure to abstain from marijuana use, despite knowing that a positive test result would end her employment, amounted to such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 41 of 1998, the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 41 through 46 of 1998, amounting to a total of $863.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe 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 employe 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 41 of 1998, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $863.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed June 15, 1999
firkujo.urr : 145 : 2  MC 653.3

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing, but reverses the ALJ's decision based on new evidence adduced at the remand hearing which was not available to the ALJ when he made his decision.

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

cc: GWEN COOPMAN
C/O BORG WARNER SERVICE


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