In the matter of the unemployment benefit claim of

ROBERT J KERNLER JR, Employee

Involving the account of

MARTEN TRANSPORT LTD, Employer

The Department issued an Initial Determination which held that in week 7 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 timely appealed 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 for about three years as a truck driver for the employer, an over-the-road transportation business. His last day of work was February 11, 1992 (week 7) when he was discharged.

Beginning on November 14, 1991, the employer was required to drug test its drivers. The employer used National Institute of Drug Abuse certified Laboratories and Collection sites to conduct these tests. The employer randomly selected the employe for a drug test in February. A medical review officer informed the employer's safety director that the employe had tested positive for a substance. The employer's guidelines required that the employer discharge the employe. Federal regulations disqualify a driver from driving when he or she tests positive for a controlled substance. The employer's policy specifically provided that: "Should the MRO certify the test positive, the person will be relieved of all duties and discharged from employ . . ."

The employer submitted a department generated certified report which was filled out by the employer's drug testing laboratory and which indicated that a preliminary screening and gas chromatography and mass spectrometry test indicated the employe had cocaine metabolites present in his system. The employer dismissed the employe. The employe believed that he did have a copy of the employer's revised policy. The employer also testified that two hours of new driver indoctrination is dedicated to substance abuse training. The employe was aware, or should have been aware, that a positive drug test would result in discharge. The employer's policy was enacted for the purpose of providing its workers with a drug free workplace and to insure public safety.

The Commission finds that the employe's actions amounted to such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his employment.

The Commission therefore finds that in week 7 of 1991, 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 in the amount of $230.00, for each of weeks 10 through 27 of 1992 and $240.00 for each of weeks 28 of 1992 through week 3 of 1993, amounting to $10,860.00, for which he was not eligible and to 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 7 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 $10,860.00 to the Unemployment Reserve Fund. The previously issued monetary computation issued on March 4, 1992, is hereby set aside.

Dated and mailed February 16, 1993
145 - CD1034  MC 651.4

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: Although the Commission conferred with the Administrative Law Judge regarding witness credibility and demeanor it reverses as a matter of law, based on its differing assessment regarding the sufficiency of the evidence.

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.

cc: 
R E Harrington Inc
Marten Transport Ltd

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