In the matter of the unemployment benefit claim of

THOMAS E. TRACHTE, Employee

Involving the account of

MADISON-KIPP CORP, Employer

On October 17, 1992, the Department of Industry, Labor and Human Relations (the department) issued an initial determination which held that the employe was discharged, but not for misconduct connected with his employment. As a result, benefits were allowed. The employer appealed the initial determination and a hearing was scheduled before an appeal tribunal on November 24, 1992. The presiding appeal tribunal also found that the employe was discharged, but not for misconduct. On November 27, 1992, the appeal tribunal issued a decision amending the initial determination as to the week of issue but affirming it on the merits. The employer filed a timely petition for commission review under sec. 108.09 (6)(a), Stats.

Based on the applicable law, records and evidence in this case, the commission makes the following:

The employe worked for the employer, an aluminum and zinc die cast facility, for four and one-half years prior to his discharge on September 16, 1992 (week 38). The parties agree that the employe was discharged by the employer. The issue in this case is whether the employe was discharged for misconduct connected with his employment under sec. 108.04 (5), Stats.

The employe did machine maintenance for the employer. The employer required the employe, under its written policy, to submit to a random drug test on August 11, 1992, and he tested positive for marijuana or cannabinoid metabolites. He received a drug assessment and some counseling, and was told that he could be discharged if he had a second positive test. See Exhibit 3. On September 11, the employe was again tested for, drug use. This time he tested positive for cocaine metabolites. The employe contends that he had not willingly used cocaine and that the substance must have been slipped to him in a drink at a tavern near the University of Wisconsin campus. The employe was discharged after the second positive test.

The record contains certifications from the laboratory that performed both tests. The certifications establish not only the chain of custody for the urine specimens that were tested, but also describe the testing procedures used. In both instances, a screening test which indicated that the employe tested positive for cocaine or marijuana. metabolites was confirmed by a gas chromatography/mass spectrometry test.

The employer's drug policy prohibits the possession, sale, distribution or use of alcohol or controlled substances on the employer's premises. It also provides for random testing of workers. Although the policy could be better written, it indicates that a worker who tests positive for controlled substances must seek employe assistance counseling and if he or she tests positive after the counseling, he or she is subject to discharge. The employer issued a disciplinary report (Exhibit 3) after the initial test which clearly provided that he would be discharged if he had another positive drug test within twelve months.

In this case, the employer has proven that its policy provided for the discharge after a second positive test for controlled substances and that the employe was aware of that policy. Further, the employer provided a valid chain of custody and certified test procedures results, including live testimony from a representative of the drug testing laboratory. The record supports the finding that the employe tested positive for controlled substances on both occasions in question. The employer has thus established a violation of its rule.

However, the mere violation of an employer's valid work rule does not establish misconduct. In such cases, the commission must consider whether the rule was reasonable and whether the employe's conduct in violation of the rule was an intentional and unreasonable interference with the employer's interests, regardless of what construction is put on the rule or the reasonableness of the rule. Milwaukee Transformer Co. v. Industrial Commission, 22 Wis. 2d 502, 512 (1964). When, as here, a rule concerns off duty conduct by the employe, the conduct must be reasonably related to the employer's interests. Gregory v. Anderson, 14 Wis. 2d 130, 137 (1961). A rule is reasonable if a violation is reasonably likely to harm the employer's interests. Actual harm at the time of the violation need not be shown. Id., at 14 Wis. 2d 138.

In past cases, the commission has held that an absolute prohibition on off-duty illicit drug use is reasonable because drug use in the workplace is a costly and significant problem, impairment may exist without any outward signs detectable by a lay person, and there is no legally protected right to engage in drug use. Indeed, a circuit court has concluded that a second positive drug test may constitute misconduct even when there is no evidence showing that the employe was under the influence of the drug at work. Miller Compressing v. Flowers, Milwaukee County Circuit Court Case No. 88-CV-17755 (October 14, 1989).  In another case, a circuit court has held that the possibility that off duty drug use might affect the skill and ability of a worker makes a rule prohibiting off duty drug use reasonable. Duane Ducat v. LIRC, Kewaunee County Circuit Case No. 89-CV- 65 (February 23, 1990).

Similarly, the commission has held that a rule which prohibits off-duty use of controlled substances is reasonable if it is designed to ensure the health and safety of an employer's workers. In this case, the stated purpose of the employer's rule is to ensure promotion of a safe, productive and a drug-free environment at its workplace. The goal of the rule was to increase the rate and quality of production, and to decrease tardiness and health-related attendance problems. The employer's interests are served by such its policy and an employe's continued use of illegal controlled substances, in the face of a warning to discontinue the use of such substances, is likely to interfere with those interests. The commission, therefore, concludes the employer's rule is reasonable.

The final question is whether the employe acted in an intentional and substantial violation of the employer's interests by violating the rule. On this point, the employe contends that he did not intentionally violate the employer's rule, but did so unknowingly when someone placed cocaine in his drink at a tavern. However, the record does not indicate who "doctored" the employe's drink or why he or she would have done so. While such things no doubt happen, the commission simply cannot find that the employe unwittingly consumed cocaine in this case. The commission must therefore conclude that the employe knowingly violated the employer's rule, and that he acted in substantial, unreasonable and intentional disregard of the employer's interests and of the standards of conduct it could reasonably expect from its workers.

The commission therefore finds that in week 38 of 1992 the employe was discharged for misconduct connected with his work within the meaning of sec. 108.04 (5), Stats.

The commission further finds that the employe was paid benefits from weeks 39 of 1992 through 29 of 1993, amounting to a. total of $7,997, for which he was not eligible and to which he was not entitled, within the meaning of section 108.03 (1), Stats. Pursuant to section 108.22 (8)(a) of the Statutes, he is required to repay such sum to the Unemployment Reserve Fund.

The decision of the appeal tribunal is reversed. Accordingly, the employe is ineligible or benefits beginning in week 38 of 1992, 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 amount of $7,997 to the Unemployment Reserve Fund. The initial Benefit Computation (form UCB-700); issued on March 4, 1993, is set aside. If benefit payments became payable 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 or 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 changed to the fund's balancing account.

Dated and mailed August 10, 1993
101 - CD1085   MC 651.1  MC 653.3

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: 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. 0. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

The commission's decision reversing the appeal tribunal decision did not involve an assessment of the credibility of the witnesses in this case. Although the employe testified that he did not knowingly consume cocaine after the first positive test, the appeal tribunal made no finding on that point. Rather, she concluded that the employer did not establish that the violation of its drug policy constituted misconduct because she did not believe that there was sufficient evidence to establish the reasonableness of the rule. However, as stated above, the commission must respectfully disagree. In any event, a credibility conference with the appeal tribunal was not necessary under Transamerica Ins. Co. v. ILHR Dept., 54 Wis. 2d 272, 283-84 (1972).

cc: Attorney Thomas Crone

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2003/12/03