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


ALAN P BRONENKANT, Employe

GLEASON REDI MIX INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98607954RC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, benefits are allowed, if the employe is otherwise qualified.

Dated and mailed April 14, 1999
broneal.usd : 105 : 1   MC 626  MC 652.2

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, for the following reasons. First, the record from the hearing does not indicate that the employe was obligated to take the follow-up drug/alcohol test immediately, upon having been directed to go for a follow-up test by the employer. The employe's testimony, credited by the administrative law judge and the commission, was that the employer in the past had given the employe a day or two to have the drug test taken. (1) The commission is cognizant of the different standard for reasonable cause testing. There is no evidence in the record, however, to indicate that the same time deadlines for reasonable cause testing also apply to follow-up testing.

The employe also credibly established an alternative reason for the separation. His testimony was unrebutted that he routinely was laid off in the winter, and he credibly testified that another driver, and not the employe, would be working the necessary routes over the winter. Although the employer denied having told the employe that the employe and other driver would have to figure out who would be working during the winter months, yet the employer testified immediately afterwards that he had said he would be figuring out "who would do what." This testimony by the employer is consistent with the employe's argument that the layoff was due to the winter and not to the employe's refusal to take the follow-up drug test. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The majority believes that the employe was not fired because he did not follow up on the employer's request for a drug test but because the employer planned to lay him off for the season. Even if the employer had planned to lay the employe off at the end of the season, I believe the employer fired him for failing to take the drug test.

The employer told the employe to take a follow-up drug test since he had tested positive for marijuana in September. The employe did not take the test. The employe's response as to why he did not take the test was "On Wednesday at noon, he said I needed to go in and give a drug test. I did not do it. I went to work the next day. He asked if I took it.I did not go in prior to today because we were preparing for Halloween. I went to the lab to run a drug test but they were full at the time. I took the drug test once before for the employer. I tested positive for marijuana. The second time it came back clear." The employe gave two excuses as to why he didn't get tested. He was preparing for Halloween and the lab was full. If his first answer about Halloween was true, then he did not go in so he would not know if the lab were full. Also if he really did go in and the lab was full, he does not indicate he would not have been tested that day if he waited.

The employer testified " Finally, I discharged him because he failed to go get the test. This was the first time he failed to submit to a test." While the employe testified " I was never threatened with any discipline for not taking the test immediately;" there is no testimony that he ever delayed taking a test before.

The employe was a driver for the employer and covered by DOT rules for maintaining a drug-free workplace. The employer was obligated to randomly test the employe after he had tested positive for drugs. The employe failed to take the test when the employer required him to be tested. The employe had no valid reason for refusing. Therefore, I would find that the employe was discharged for misconduct connected to his employment and I would reverse and deny benefits.


__________________________________
Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The dissent challenges the consistency of the employe's two stated reasons for not taking the follow-up test on the Wednesday afternoon in question. The two reasons, though, are not inconsistent. That is, the employe testified that he had little time available that afternoon, which means only that he did not have time to wait at the clinic however long he would have had to do so. That he was short on time that afternoon does not require the inference the dissent draws, that he did not go to the clinic.