BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

GLENN A OLSON, Employe

Involving the account of

DISTRIBUTION TRANSFORMER DIVISION, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 88-603167WK


A Department Deputy's Initial Determination held that in week 17 of 1988, the employe was discharged 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 amended the week of issue to week 18 of 1988, but otherwise affirmed the Initial Determination. The employer timely filed a petition for Commission review.

Based on the applicable law, records and evidence in this case, and after consultation with the Administrative Law Judge regarding the credibility and demeanor of the witnesses, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for approximately ten years as a process maintenance operator for the employer, a waste water treatment plant. His last day of work was April 20, 1988 (week 17), and he was discharged effective April 26, 1988 (week 18).

At issue is whether the employe was discharged for misconduct connected with his employment, within the meaning of section  108.04(5) of the Statutes.

The employe had been terminated from his employment with the employer on or about November 11, 1987, after being found asleep at work and subsequently admitting that he had consumed 11 glasses of beer during the day, prior to reporting for his duties on the third shift. The employe filed a grievance and the termination was converted into a suspension with reinstatement, subject to certain written conditions. The reinstatement took effect January 11, 1988, and one of the written conditions was that the applicant abstain from consumption of alcohol and/or other controlled substances during the period ending January 11, 1989. Another of the written conditions was that the employe would submit to random tests during this one-year period to ensure his abstention from alcohol and/or other controlled substances.

On March 29, 1988, the employe submitted to a urinalysis in accordance with the reinstatement agreement. The results were positive for marijuana use, and the applicant admitted that he had smoked marijuana on two occasions while not at work. Shortly after discussing the positive test results with the employe over the telephone, the employer decided to terminate his employment.

The commission consulted with the administrative law judge, who indicated that credibility of the witnesses was not determinative in this matter, except that he questioned the employer's motivation for discharging the employe. The judge reasoned that since there was no evidence that the employe had allowed his marijuana use to interfere with or affect his job performance, the employer's decision to discharge him was unreasonable. The judge further reasoned that the discharge must therefore have amounted to additional punishment for the prior incident in November 1987.

The employe had been reinstated on January 11, 1988, under very specific terms which he agreed to follow. These terms were reasonably related to the employer's concern that the employe not allow consumption of alcohol or any other controlled substance to affect his performance at work. The reinstatement terms were strict, in that they required the employe to abstain from all consumption of alcohol and/or other controlled substances during a one-year period, both on and off the job. However, it is well known that alcohol and drug abuse may accompany each other. The employer was acting reasonably by setting strict conditions of reinstatement, because the employe had allowed off-duty consumption of an intoxicant to interfere with his work. This presented serious safety concerns for the employer, and an individual's failure to control his consumption of one intoxicant leads to the reasonable inference that such individual may fail to control his consumption of other intoxicants.

The employer's decision to discharge the employe was not an additional punishment for the incident which occurred in November, 1987. It was a reasonable response to the employer's failure to abide by the terms of the reinstatement agreement which he had promised to follow. The terms of the agreement were reasonably related to the employer's legitimate business interest in a drug and alcohol free work environment; and specifically, the provision that the employe abstain from all consumption of controlled substances, such as marijuana, was reasonably related to that same end.

The commission therefore finds that in week 18 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 $200 per week for each of weeks 19 and 20 of 1988, amounting to a total of $400, 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 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 18 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. He is required to repay the sum of $400 to the Unemployment Reserve Fund.

Dated and mailed February 3, 1989
185 : CD2002   MC 651.1  MC 651.5

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


NOTE: The stated effects of this decision are based on the provisions of Wisconsin Statutes Chapter 108 that are in effect as of this date. 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 law recently enacted will apply (1987 Act 38 and 1987 Act 255).


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