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


DANIEL M QUINNELL, Employe

WISCONSIN POWER & LIGHT CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00000889BD


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 about eight and a half years as a field service representative for the employer, a public gas and electric utility. His last day of work was January 5, 2000 (week 2).

The issue which must be decided is whether the employe's actions, for which he was discharged, constitute misconduct connected with his employment.

Because of the nature of its business the employer is required to comply with the federal Department of Transportation's drug testing laws for certain job classifications, including the employe's. As a result, the employe was subject to being randomly selected to be tested for use of controlled substances at any time. Pursuant to the employer's drug and alcohol abuse policy, a worker who tests positive or who refuses to be tested can be discharged from the employer's employment.

On October 7, 1996, the employer suspended the employe's employment because he had tested positive for the use of a controlled substance. On November 15, 1996, he was allowed to return to work with the proviso that if he tested positive again, his employment would be terminated.

On December 15 1999, the employe's name was randomly selected for testing. He was sent to a laboratory used by the employer for collecting specimens for drug and alcohol screening. A certified report from the laboratory technician who obtained the specimen establishes it was obtained from the employe in the required manner, identified, sealed and transmitted to a testing laboratory for testing. On January 5, 2000, the testing laboratory notified the employer that the specimen provided by the employe had been adulterated and could not be tested for drugs. Pursuant to federal law, which considers an adulterated specimen to amount to a positive test, the employer advised him that his employment was being suspended. On January 7, 2000 (week 2), the employer notified him that his employment was being terminated because he had violated his 1996 agreement with the employer not to use drugs.

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 employe contended that he had neither the motive nor the opportunity to adulterate the specimen he provided on December 15, 1999, so it must be concluded that the sample tested had been switched. The commission disagrees. A certified report from the toxicologists who had been assigned to test the specimen establishes a clear chain of custody and specimen identity back to the employe. He had provided an adulterated specimen on December 15, 1999. He was well aware that another violation of the employer's policy prohibiting the use of drugs or alcohol would result in his employment being terminated.

Under the circumstances, the employe's actions evinced such a wilful, intentional and substantial disregard of the employer's interests as to constitute misconduct connected with his employment.

An appeal tribunal decision, issued on March 22, 2000, reversed the initial determination and found that the employe's discharge was for misconduct connected with his work. However, the appeal tribunal decision was coded by the department as an affirm and therefore benefits continued to be paid to the employe, even after it was determined that he was not entitled to those payments. This generated an additional overpayment in the amount of $899, which was the result of department error, and not the fault of the employe. On April 13, 2000, the department issued an amended appeal tribunal decision, not knowing that the employe had already filed a petition for commission review. Therefore the ALJ lost jurisdiction before the amended decision was issued.

The commission therefore finds that in week 2 of 2000 the employe was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 3 through 15 of 2000, amounting to a total of $3,869.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1) and that $2,970.00 must be repaid to the department because that portion of the overpayment was not the result of any error by the department, within the meaning of Wis. Stat. § 108.22(8)(a) and (c).

The commission further finds that recovery of benefits paid for weeks 13 through 15 of 2000, amounting to a total of $899, is waived under Wis. Stat. § 108.22 (8)(c), because that portion of the overpayment occurred as a result of a departmental error, and the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f).

DECISION

The decision of the administrative law judge dated March 22, 2000 is modified to conform to the foregoing findings and, as modified, is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 2 of 2000, 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. He is required to repay the sum of $2,970.00 to the unemployment reserve fund. The initial benefit computation (UCB-700) issued on January 7, 2000 is set aside. If benefits become payable based on work performed in other covered 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 May 18, 2000
quinnda.urr : 145 : 1  MC 652.3   BR 335.03

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who issued the decision. The commission modified his decision to include the necessary findings on the waiver and overpayment that the ALJ could not include because he lost jurisdiction of the case.

cc: ALLIANT ENERGY WPL


Appealed to Circuit Court. Affirmed September 12, 2001.

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