In the matter of the unemployment benefit claim of

BILLY C HOWARD, Employee

Involving the account of

RITEWAY BUS SERVICE INC, Employer

On March 4, 1992, the Department of Industry, Labor and Human Relations (Department) issued an Initial Determinatin finding that the employe was discharged in week 8 of 1992 but not for misconduct connected with his employment. Benefits were allowed. The employer timely appealed and a hearing was held before an Administrative Law Judge. On April 17, 1992, the Administrative Law Judge issued his Appeal Tribunal Decision modifying the Department's Initial Determination and as modified, affirming the Department's Initial Determination. Accordingly, the employe was found eligible for benefits. The employer field a timely petition for Commission review of the Appeal Tribunal Decision.

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

The employe worked approximately three years as school bus driver for the employer, a school bus company. His last day of work was February 17, 1992 (week 8). The employe was discharged on February 18, 1992 (week 8).

In response to a new federal law requiring commercial drivers to obtain commercial driver's licenses, the employer required its drivers pass a drug screen test. Accordingly, the employe's urine was sampled on February 13, 1992 and subsequently tested. The employer was informed that the results were "positive." On February 17, 1992 the employe engaged in an argument with the personnel coordinator. On February 18, 1992 (week 8), the employer-owner informed the employe that he was fired. The employe subsequently filed for Unemployment Compensation benefits and began receiving benefits. After a separation of three weeks from the employer's employment, the employe asked the employer if she would consider rehiring him. The employer agreed pending another drug screen test at the employe's personal expense.

The issue to be resolved is whether the employe was discharged in week 8 of 1992 and whether the discharge was for misconduct connected with his work.

At the hearing, the personnel coordinator testified that the employe's last day of work was February 17, 1992 (week 8). Initially, the personnel coordinator testified that the employe was placed on disciplinary suspension between February 17 (week 8) through March 23 (week 13) and that he was discharged on March 27, 1992 (week 13) after failing his second drug screen test. However, after further examination by the Administrative Law Judge, the employer testified that the employe was initially discharged on February 18, 1992 (week 8). Sometime later, a date unknown, the employer telephoned the employe and informed him that his discharge would be converted to a disciplinary suspension pending the results of his second drug screen test. Although the Administrative Law Judge characterized the employe's separation in week 8 as a disciplinary suspension, the Commission concludes that the employe was discharged for testing positive for drugs. The employe's separation cannot be converted from a discharge to a disciplinary suspension, after the fact. The Commission concludes that the best characterization of the separation in week 8 is that of a discharge, as initially found by the Department in its Initial Determination.

Concluding that the employe was discharged in week 8 of 1992, the next level of inquiry is whether the employe's discharge was for misconduct connected with his employment pursuant to section 108.04 (5), of the Statutes. The employer's reason for the discharge was based upon the employe's positive test result for drugs. The relevant exhibit, Exhibit 3, stated that the employe underwent a urine drug screen according to the National Institute of Drug Abuse regulations including testing for marijuana, opiates, cocaine, amphetamines, and phenocyclidine on February 13, 1992. Although the results were "positive," the exhibit failed to indicate what drug the employe tested positive for. Comments on the exhibit state: "This is presumed positive, he never called me back, despite messages left at home on 2/18, at work on 2/18 and 2/19. He has apparently now quit his job." The exhibit submitted by the employer is insufficient to establish a positive test result for drugs. The exhibit fails to indicate what drug the employe tested positive for and fails to indicate the amounts of the drug or drug metabolites present in the employe's system. The exhibit's conclusory statement that the employe tested positive for drugs pursuant to NIDA standards is insufficient to support a finding of misconduct.

While the Commission does not condone the use of illegal substances by employes, especially school bus drivers, the employer has failed to establish that its work rules prohibit the use of illegal drugs ofd duty or that the federal DOT regulations regarding illegal drug use apply to school bus drivers.

The employer has failed to meet its burden or proof in two ways. First, the positive drug test is inconclusive since it does not indicate what drug the employe tested positive for or the amount of drugs or drug metabolites in the employe's system. Second, even assuming that the employe tested positive for marijuana, the employer has failed to establish that its work rules prohibit off duty use of drugs, that the employe was impaired on the job or, that federal DOT regulations apply here.

The Commission therefore finds, that in week 8 of 1992, the employe was discharged, but not for misconduct connected with his work, within the meaning of section 108.04 (5) of the Statutes.

The decision of the Appeal Tribunal issued on April 17, 1992 is modified to conform to the foregoing and, as. modified, is affirmed in part and reversed in part. Accordingly, the employe is eligible for benefits beginning in week 8 of 1992, if he is otherwise qualified.

Dated and mailed January 29, 1993
135 : CD6572  MC 676  MC 676.2  MC 652.9 

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: The Commission did not consult the Administrative Law Judge regarding witness credibility or demeanor. The Commission does not disturb any credibility determination by the Administrative Law Judge.

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