BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

STEPHEN J BUDA, Employe

Involving the account of

U LINE CORPORATION, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 88-602910MW


A Department Deputy's Initial Determination held that in week 14 of 1988, the employe was discharged by the employer but not for misconduct connected with his employment, within the meaning of section 108.04(5) of the Statutes. Accordingly, benefits were allowed. The employer timely appealed and a hearing was held before an Appeal Tribunal. The Appeal Tribunal decision affirmed the Initial Determination . The employer timely filed a petition for Commission review.

Based on a review of the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked as an assembler for the employer, a manufacturing concern. The employe was discharged on April 1, 1988. The issue is whether the employe was discharged for misconduct.

The employer gave two reasons for discharging the employe: excessive absenteeism and failure to pass a drug test.

With respect to the drug test, the employe was injured at work on March 31, 1988. Pursuant to a contract between the employer and the employes' union, an employe who is injured on the job must submit to a drug test. The employe was tested and he test positive for cocaine and marijuana. In addition to the test results, the employe's supervisor testified that on two occasions in 1988, he approached the employe because he felt "from the appearance on (the employe's) face and the way he carried himself, that he was under the influence of drugs. I suggested he seek treatment. I did not send him home."

While the employe admitted to being a user of cocaine while working for the employer, he asserted that it did not affect his ability to do his job. He testified, further, that on the two occasions his supervisor spoke to him, he was not under the influence of drugs, but that he had a cold and bronchitis.

Under the circumstances, the Commission finds that the employer's evidence is insufficient to establish that the employe's conduct with respect to drugs evinced and intentional and substantial disregard for the employer's interests, namely, that the employe was using drugs while working, that he came to work under the influence of drugs, or that his personal or recreational use of drugs affected or impaired his ability to work. While the result of the drug test may have provided a sufficient business basis upon which to discharge the employe, it is not sufficient, by itself, to establish any of the above-mentioned elements necessary to a finding of misconduct. Other than the drug test, the employer's only evidence concerning the employe's drug usage is the employe's supervisor's testimony that he suspected the employe was under the influence of drugs on two unspecified occasions in 1988. As to this testimony, however, the appearance of the employe's face or even the way he carried himself is not competent evidence of drug use, or even necessarily of impaired ability to work. Moreover, the supervisor did not send the employe home or reprimand him on either occasion. If there had been enough outward evidence on those two occasions, either that the employe was under the influence of drugs in the workplace or that his recreational use, whether or not he was under the influence at work, had impaired his ability to work, it may safely be assumed that the employe's supervisor would have sent him home, reprimanded him, or worse. The absence of any employer response or discipline suggests that there was insufficient evidence for the employer to conclusively determine that the employe was under the influence of drugs.

The Commission concludes that the employer failed to establish that the employe's drug use, even though it was a factor in the employer's decision to discharge the employe, amounted to statutory misconduct.

The second reason the employer gives for discharging the employe is the employe's excessive absenteeism and tardiness. In the 13-month period preceding the employe's discharge, he was absent or tardy a total of 29 times. Of those, at least 11 were unexcused. The employe did not recall any of the circumstances surrounding nine of the occasions on which he was absent or tardy. Of those the employe did recall, his excuses included having to get his car registered, being stopped for speeding, waking up late, having a hangover, and "something to do with my car."

The employer issued the employe a written warning on September 23, 1987 for excessive absenteeism and tardiness. This had no apparent effect on the employe's attendance record as the employe logged 9 of his 11 unexcused absences and tardies after this warning. On March 11, 1988, the employer gave the employe his second written warning for poor attendance. This written warning specifically stated that if the employe had another unexcused absence within the next 30 days, he would be terminated. The employe was discharged on April 1, 1988.

Although the employe did not have another unexcused absence between his final warning and his discharge date, that fact is not necessarily determinative for purposes of assessing misconduct. That the employer allowed the employe to continue working, allowed him to tally a poor attendance record and did not discharge the employe for a specific attendance infraction, does not preclude the commission from looking at the employe's entire attendance record in evaluating the employe's conduct. In Checker Cab Co. v. Industrial Comm., 242 Wis. 429 (1943), the Wisconsin Supreme Court found that if an employe has an overall record of wrongdoing sufficient to find him guilty of statutory misconduct, then it matters not that the incident which precipitated the employe's discharge was not the employe's fault. In such an instance, the court reasoned, the incident which precipitates the employe's discharge is "the occasion of and not the reason for his discharge" Id. At 433. (emphasis added)

As in Checker Cab, supra, the incident which precipitated the employe's discharge (his positive test for drugs) is not, by itself, evidence of sufficient employe fault to support a finding of misconduct. Nor did the employe incur any unexcused absences after his final warning. Nevertheless, the employe's entire attendance record was a major factor in his dismissal. He was not discharged solely because of his failure to pass the drug test. The employe's discharge letter cited both his failure to pass the drug test and his poor attendance record as reasons for his discharge. Looking at the employe's attendance record in its entirety, the commission finds that the employe was excessively absent and tardy. Furthermore, the employe had no legitimate reason for many of these absences and occasions of tardiness. Moreover, the fact that seven of the employe's unexcused absences and tardies came after he received a written warning, creates a strong inference that the employe deliberately ignored this rather serious step in the discipline process. In short, that the employe made no effort to improve his very poor attendance record when he clearly knew of the employer's extreme dissatisfaction over that record. In view of the totality of the employe's attendance record, the lack of legitimate excuses for many of his absences, and his failure to improve his attendance after being placed on notice by the employer in the form of two warnings, the commission concludes that the employe's actions in this regard evinced an intentional and substantial disregard for the employer's interests, amounting to misconduct.

The commission therefore finds that in week 14 of 1988, the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04(5) of the Statutes.

The commission further finds that the employe was paid benefits in the amount of $140 per week for each of weeks 16 through 18 of 1988, amounting to a total of $420 for which he was not eligible and to which he was not entitled, within the meaning of section 108.03(1) of the Statutes, and that pursuant to section 108.22(8)(a) of the Statutes, he is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the Appeal Tribunal is reversed. Accordingly, the employe is ineligible for benefits based on employment with the employer. He is also ineligible for benefits based on employment with other employers beginning in week 14 of 1988, and continuing thereafter until he has again been employed within at least seven weeks in employment covered by the Unemployment Compensation Law of any state or the federal government and has earned wages in that employment equaling at least 14 times his weekly benefit rate with the employer against whom benefits are initially chargeable. The employe is required to repay the sum of $420 to the Unemployment Reserve Fund.

Dated and mailed February 3, 1989
150 : CD2006  MC 651.2  MC 653.1  MC 688

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


NOTE: The commission has reversed the appeal tribunal as a matter of law.

If any employment affected by this decision becomes base period employment for a new claim, beginning April 2, 1989 or later, the provisions of the Unemployment Compensation Law recently enacted will apply (1987 Act 38 and 1987 Act 255).


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