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


SHANE R JOHNSTONE, Employe

J L FRENCH CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99400814SH


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for an aluminum die casting company for three and a half years as a die caster. His last day of work was March 11, 1999 (week 11). He was discharged the following day.

The employe was working under a last chance agreement following a prior previous positive test for drugs. As a condition of his continued employment, the employe was subject to random drug testing for a 24 month period. On March 11, the employe was selected for a random drug screen. He was escorted to the testing facility where he was shown to a bathroom to provide a sample. The nurse turned off the sink water and colored the toilet water before permitting the employe to enter. Following the test, the employe opened the door, handed out the sample, watched the nurse check the temperature and seal the jar and then he initialed the label. The sample was within the normal temperature range. Later, the lab identified the sample as chemically inconsistent with normal human urine and did not run the test. The employe was discharged for substituting the sample and thereby violating the terms of his continued employment agreement. The employe denied substituting the sample.

The issue to be decided is whether the employe's discharge was for misconduct connected with his employment.

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 employer demonstrated with competent and persuasive evidence that the lab followed the correct chain of custody procedures in handling the sample. Since that sample was not consistent with normal human urine, the employe must be responsible for introducing the substituted sample into the chain of custody. The commission does not credit the employe's denial of involvement in substituting the sample. The employe's attempt to evade the employer's testing procedure by substituting a different sample for his own constitutes a deliberate and substantial disregard of the employer's interests.

The commission therefore finds that in week 11 of 1999, the employe was discharged for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $157 for week 12 of 1999, and $297 per week for each of weeks 13 through 35 of 1999, amounting to a total of $6,988; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund. The benefits paid in week 12 of 1999 in the amount of $140, were withheld as forfeitures. Since the claimant is not eligible for this week, it cannot be used as a forfeiture. The sum of $140 will be restored to the forfeiture balance.

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 appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 11 of 1999, 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 the sum of $6,988 to the Unemployment Reserve Fund. The initial benefit computation (Form UCB-700), issued on March 15, 1999 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

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 September 10, 1999
johnssh.urr : 178 : 7  MC 652.3  MC 652.4 

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed credibility with the ALJ prior to reversing. The ALJ's decision did not rely heavily on the credibility of the employe's testimony. Instead, the ALJ was persuaded that the lab must of erred due to the normal temperature of the sample and the employe's lack of opportunity to collect a substitute sample following the notice of his random test. While the commission acknowledges that substituting the sample would have involved considerable forethought, it is possible. The employer's lab followed the federally mandated chain of custody procedures to guarantee the identity of the sample. Since the employe has not offered any persuasive evidence which would cause the commission to discredit that document, the commission concludes that the employe is the party responsible for the substitution.

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. C. 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.


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