In the matter of the unemployment benefit claim of

JONATHAN F FIDLER, Employee

Involving the account of

STOUGHTON TRAILERS INC, Employer

On November 29, 1991, the Department issued an Initial Determination which held that the employe's discharge was not for misconduct connected with his employment. The employer timely requested a hearing on the adverse determination, and hearing was held on January 29, 1992 in Janesville, Wisconsin before Administrative Law Judge Daniel Waite.  On February 3, 1992, Administrative Law Judge Waite issued an Appeal Tribunal initial determination of no misconduct. The employer timely petitioned for Commission review of the adverse Appeal Tribunal Decision, and the matter now is ready for disposition.

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

The employe worked approximately 3 1/2 years as a welder for the employer, a tractor trailer manufacturer. The employer discharged him on October 24, 1991 (week 43) for a second violation of the employer's prohibition against the unauthorized use of controlled substances. The issue is whether the employe's admitted use of such matter, in violation of the employer's rule, is misconduct within the meaning of section 108.04 (5) of the Statutes. The Commission believes that it was, and so reverses the Appeal Tribunal Decision.

Relations between the employer and its employes are governed by a collective bargaining agreement between the employer and the employes' collective bargaining representative. Contained within this agreement is a general drug and alcohol policy which prohibits unauthorized consumption both on and off-duty of controlled substances, including alcohol and "drugs." The rule expressly prohibits the use of drugs or non-prescribed controlled substances on the employer's premises. The rule also prohibits "participation" by an employe in off-the-job activity involving illegal drugs, such as use or sale thereof. The rule provides for a three-day suspension without pay and automatic referral to a local hospital assessment/ treatment program, for any employe: 1. under the influence of alcohol, drugs, or controlled substances (that are not prescribed); 2. in possession of open intoxicants, drugs, or controlled substances (that are not prescribed); or 3. who fails a first drug and alcohol test. Finally, the rule allows for immediate discharge for an employe who fails to follow the treatment program's recommendations or who fails a second drug and alcohol test.

On February 16, 1990, the employe submitted to a drug and alcohol urinalysis, which proved positive for the presence of delta-9tetrahydrocannabinol-9-carboxylic acid, a marijuana metabolite. Pursuant to the drug policy as to first positive tests, the employe received a three-day suspension from work. He also was referred to an assessment/ treatment program, again pursuant to the drug and alcohol policy. The employe had admitted smoking marijuana approximately three weeks earlier, but did not believe the test result should have been positive.

The employe also failed a random drug and alcohol test given him on October 18, 1991. The test results again were positive for the presence of the above-mentioned marijuana metabolite. The cutoff for a positive test, according to the drug testing laboratory, is 15 nanograms/milliliter; the concentration from the employe's second test was 81 nanograms/milliliter. The employe admitted to have smoked marijuana a week or two prior to the October 18 test.

As to the drug screenings themselves, the certified report of the laboratory's director of toxicology indicates that they were performed by General Medical Laboratories, which is certified by the National Institute on Drug Abuse (NIDA). The positive results from initial screenings were confirmed by the highly sensitive and accurate gas chromatography/mass spectronomy (gc/ms) analysis. The certified report also indicates that the employer and laboratory personnel followed proper chain of custody procedures to insure that the specimens tested were those of the employe.

The rule set out in the collective bargaining agreement between the parties prohibits even off-duty unauthorized use of controlled substances such as marijuana. The agreement also sets out what the Commission takes to be a legitimate purpose of the rule: the ensuring of the health and safety of all of the employes of the employer. Indeed, much of the work of the employer's employes, including the welding work the employe performed on behalf of the employer, is extremely dangerous work. For these reasons, the Commission believes the policy is reasonable, and that the employe's violation of it reflected the intentional and substantial disregard of the employer's interests necessary to constitute misconduct for unemployment compensation purposes.

The Commission therefore finds that, in week 43 of 1991, the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04 (5) of the Statutes. The Commission also finds that the employe was paid benefits in the amount of $165.00 per week for each of weeks 47 of 1991 through 15 of 1992, and $24.00 per week for each of weeks 16 and 17 of 1992, totaling $3,513.00, for which he was not eligible and to which he was not entitled, within the meaning of section 108.03 (1) of the Statutes. Pursuant to section 108.22 (8)(a) of the Statutes, he must repay such sum to the Unemployment Reserve Fund.

The Appeal Tribunal Decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 43 of 1991, 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 must repay $3,513.00 to the Unemployment Reserve Fund. Department form UCB-700, issued on November 19, 1991, is set aside.

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 October 28, 1992
105 - CD1005   MC 651.1 MC 651.2

/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 before determining to reverse the Appeal Tribunal Decision. Such conferral is necessary where the Commission is considering reversal of an Appeal Tribunal Decision and a finding or findings by the Administrative Law Judge depended at least in part upon the Administrative Law Judge's observations of the demeanor of witnesses at hearing. Such was not the case here, since the Appeal Tribunal's findings were consistent with those of the Commission; the crux of the Appeal Tribunal's decision was that there was no showing by the employer that the employe was impaired at the workplace. The Commission's reversal is based upon its disagreement as to the reasonableness of the work rule or policy at issue, which is a matter not dependent upon any demeanor observations made at hearing.

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