In the matter of the unemployment benefit claim of

JAYSON A STORTS, Employee

Involving the account of

SPRINGS WINDOW FASHIONS DIV INC, Employer

The department issued an initial determination which held that in week 9 of 1992, the employe was discharged but that the discharge was not for misconduct connected with his work. As a result, benefits were allowed.

The employer filed a timely request for hearing and a hearing was held before an administrative law judge who affirmed the initial determination. The employer filed a timely petition for commission review. Based on the applicable law, records and evidence in this case the commission makes the following:

The employe worked during nine years as a forklift operator for the employer, a manufacturer of drapery hardware. His last day of work was February 21, 1992 (week 8).

The employer maintained a work rule which prohibited employes from reporting to work under the influence of alcohol or drugs. The employer also had an established disciplinary progression for violation of this rule that went from an oral warning through written warnings, with and without suspension followed by termination of employment. The employe had received three written warnings between April 17, 1990 and August 8 of 1991, for careless workmanship. On January 3, 1992 he received a disciplinary warning that was designated a final warning for excessive unpaid absenteeism. The absenteeism was always with notice to the employer. On January 21, 1992 he received a final written warning because of unauthorized use of a telephone for personal calls. On February 21, 1992, a supervisor suspected the employe of using cocaine in the washroom. He denied having used that drug and voluntarily submitted to a drug urine analysis. He had smoked marijuana about two weeks prior to the test date over a weekend and away from the work place. On February 26, 1992 (week 9) the employer received the test results which reported that he tested negative for cocaine but positive for marijuana. The employer notified him that day that he was discharged from his employment for being under the influence of a drug while working.

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 (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 employe, 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 employe'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 his positive marijuana test result did not amount to misconduct because the employer's policy had not been specifically distributed to him, because he was only tested because the employer suspected that he was using a different illegal drug, cocaine, and because he used marijuana at a wedding and not during work. The commission disagrees. While the commission does believe that there were some difficulties in regard to the employer's policy, the commission concludes that it was specific enough that his violation of the policy amounted to misconduct for unemployment compensation purposes. While it would have been better had the employer distributed the policy to each worker, it did post the policy on bulletin boards in the cafeteria, personnel office and factory. The employer suspected the employe was taking cocaine during work and the employe did agree to take the test. Simply because the employe tested positive for a different illegal substance, marijuana, does not mean the employer did not initiate the test in accordance with its policy. Based on the level of marijuana in his system, commission did not find his the assertion that he smoked the marijuana a few weeks prior to his discharge to be credible. While he may not have smoked the marijuana during work hours the employe should have been aware that a positive test result might result in discharge. The employer's policy addresses the presence of an illegal substance and not specifically impairment. The employer did indicate that the policy's purpose was to prevent lost productivity, theft, damage to canpany property, absenteeism and accidents.

The appeal tribunal therefore finds that in week 9 of 1992 the employe was discharged for misconduct connected with his work, 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 $230 for each of the weeks 10 through 19 of 1992, amounting to a total of $2,510 for which he was not entitled, within the meaning of sec. 108.03 (1), Stats., and that, pursuant to sec. 108.22 (8)(a), Stats., he is required to repay such sum to the Unemployment Reserve Fund.

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 9 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. He is required to repay the sum of $2510 to the Unemployment Reserve Fund.

Dated and mailed June 11, 1993
145 : CD8214  MC 651.2  MC 651.4 

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor but reversed as a matter of law. The results of the test were not disputed and the employe admitted that he had smoked marijuana. The provisions of the employer's policy were not disputed.

The employe did requalify and is eligible for $30 in week 46 of 1992.

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 and for a reimbursement employer, to the fund's administrative account.

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