STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

WALTER J POUCHERT, Employe

P J K FINISHING CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606573WK

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately 12 years as a plater for the employer, a metal finishing business. The employe's last day of work was September 8, 1998 (week 37). The employe was discharged on September 15, 1998 (week 38), for failing to comply with the employer's drug testing procedures.

The employer's substance abuse policy calls for substance testing for job applicants, for those involved in accidents on the job causing injury or damage to property, and for reasonable cause to believe that substance use may be interfering with job performance. The rules further provide that the presence of a controlled substance in a worker's system is grounds for termination.

On September 1, 1998 (week 36) the employe informed his supervisor that he was experiencing back pain and was having difficulty working. The employe had been involved in an automobile accident off the job in 1988 and continued to experience intermittent back pain as a result. Because the employe reported this pain, he was sent for a medical evaluation that day as well as to be tested for the presence of foreign substances in his system. Had the employe not reported this pain, he would have been permitted to continue working. A report was received from the testing facility that disclosed a positive result for marijuana metabolites in the employe's system. As a result the employe was fired for violating the employer's substance abuse policy.

The issue is whether the employe was discharged for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5). In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance 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 employee, 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 employee'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 commission concludes that Part 2 of the UC Drug Testing Report should have been admitted at the hearing despite the employer's concerns about the employe's authorization. (1) Specifically Part 2, supports the finding that the test revealed a positive result for marijuana metabolites in the employe's system. Despite this positive test result, the commission cannot conclude, under these facts, that the employe's discharge was for misconduct connected with his employment.

At the hearing, the employer's witness testified that its unwritten policy requires its employes submit to drug tests when they are sent to the medical clinic for an evaluation, whether a workplace injury or otherwise occurred. The employer explained that this policy is just one way it performs random testing. However, because this policy was unwritten, the employe was deprived of written notification that he would be subject to a drug test at any employer-requested or warranted medical evaluation, regardless of whether a workplace injury had occurred. The employer's substance abuse policy, specifically its testing procedures, notifies employes only of the requirement to be tested for involvement in a work-related accident which results in personal injury to an employe or causes any damage to company property. The employe's injury was not work related and he did not damage company property. There is also no basis for believing that the employe's use of a controlled substance may have been interfering with his job performance. Specifically, the employer's witness testified that the employe showed no signs of impairment on the day he was tested for foreign substances in his system and that he was sent for an evaluation only because of a non-work injury. Under the circumstances, the employer failed to follow its written testing procedures.

Thus, although the employer may have had a valid basis for discharging the employe, it has not been established that the employe's discharge related to actions on his part which evinced a willful disregard of the employer's interests or an intentional violation of standards of behavior that the employer had a right to expect. As such, the employe's discharge was not for misconduct connected with his work as that term is defined in the law.

It is therefore found that in week 37 of 1998, the employe was discharged but that the discharge was not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The employer's request for further hearing is denied. The appeal tribunal decision is modified and, as modified, is affirmed. Accordingly, the employe is eligible for benefits if otherwise qualified.

Dated and mailed March 31, 1999
pouchwa.urr : 135 : 1  MC 652.1 MC 652.9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer requests a rehearing so that it may submit Part 2 of the UC Drug Testing Report and because it contends that it had insufficient time to prepare for the hearing. Because Part 2 of the UC Drug Testing Report was admitted into evidence by the commission, there is no need to grant the employer's request for rehearing on that ground.

In regard to the employer's other argument, insufficient time to prepare, the commission declines to grant the employer's request for rehearing. The employer contends that it only had three business days to prepare for the hearing and that if it had had more time it would have been able to obtain counsel and would have produced additional evidence for the hearing. Although the employer may have only had three business days to prepare for the hearing, the Hearing Notice was issued and mailed seven days prior to the scheduled hearing, the standard amount of time granted for all parties. The seven day notice does not distinguish between business and non-business days. Additionally, parties are not required to have legal counsel before a UI hearing can proceed. Finally, if the employer felt that it could not adequately prepare for the hearing, at the very least, it should have requested a postponement from the department, rather than wait until after the hearing had been held and decision issued to make its request. The commission therefore will not grant the employer's request for further hearing.

The employer also offers a substantive argument in regard to why the employe's discharge should support a finding of misconduct. The employer contends that a positive drug test is sufficient to show an intentional disregard of the employer's interests. Generally, where an employer has a written rule providing that a positive drug test will result in termination, as the employer did here, a finding of misconduct is found by the commission. The distinction in this case is that the employer failed to follow its testing procedures. The facts at hand did not warrant the employe being sent for a drug test, even though it was consistent with the employer's unwritten policy. Furthermore, there were no signs of employe impairment and there was no on the job accident warranting the test.

Although the dissent characterizes Exhibit 6 as a last chance agreement, the exhibit does not indicate it is as such. Indeed, the exhibit is classified as a "Notice of a positive drug test" and not as a last chance agreement, as one would believe it would be if it were. Nonetheless, the majority concedes that exhibits, as testimony, are subject to interpretation. However, the exhibit makes no mention of the notice being that of a last chance agreement or that the employe was placed on notice that he could be tested randomly for foreign/illegal substances. The notice, as signed by the employe, provides that the employe does not dispute the positive drug test result of November 5, 1997. The notice specifically states: "I attest to PJK Finishing Company, Inc., that I am no longer using any controlled substance and that I agree to submit to additional sampling no sooner than two weeks from the original test to verify that the level of THC in my system is decreasing or nondetected. I understand that my continued employment with PJK Finishing Company, Inc., is contingent upon proving that I am drug free as verified by a negative drug test." The notice fails to mention anything about the employe being placed on notice that his future employment was contingent upon random drug testing. One can assume, as it was not at issue here, that the employe complied with the notice requirement of Exhibit 6 since his employment continued well beyond the two week frame work from the original test of November 5, 1997. The employe agreed to produce a negative drug test result within two weeks of November 5, 1997 and apparently he did.

The commission notes that the employer may wish to include an additional testing procedure in its substance abuse policy governing medical evaluations and non-work injuries, since its random drug testing procedure, as it is written, does not govern the situation that arose here. The employer may also wish to provide a written rule, which specifically prohibits the off-duty use of illegal substances in conjunction with its overall concern with safety in the workplace.

The majority agrees that the employer's rules are "broader" as characterized by the dissent; in fact, the employer's own unwritten rules provide for random drug testing regardless of cause. The majority does not disapprove of an employer's decision to randomly test its employes for foreign/illegal substances. However, the commission believes that an employer should provide written notification of its random drug testing procedures to its employes. Unwritten procedures or policies, such as the one the employer had in place, fail to provide such notice to employes. If the employer had had a written policy governing random drug testing, the commission may have reached a different result.

cc: ATTORNEY JAMES L DUNLAP
CONGDON WARD & WALDEN SC

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employer substance abuse policy (Exhibit 2) reads in part "Be advised of the following rules: .2. Employees are prohibited from being on Company property while under the influence of a controlled substance. An employee is deemed `under the influence' if their blood alcohol level is 0.1% or greater, if there are 0.1 grams, or more of alcohol in 210 liters of the employees' breath, or there is evidence of illegal or otherwise controlled substances present in their blood or urine sample."

The majority is concerned if the employee had notice he could be tested. Exhibit 6 indicates that the employee participated in a random drug screen by the employer on November 5, 1997 where he tested positive for THC, an illegal substance. After that positive test, the employee discussed the test results with the Medical Review Officer and agreed not to dispute the test results. He signed a statement which ended with "I understand that my continued employment with PJK Finishing Co. Inc is contingent upon proving that I am drug free as verified by a negative test." I would find that this signed statement is equivalent to a last chance agreement where the employer is giving the employee a second chance but if he again uses drugs he is gone. I believe a person on a last chance agreement has notice that certain conduct will not be allowed.

The majority notes that the employer witness testified that the employee showed no signs of impairment on the day he was tested. That would make a difference if the employer's rules provided for a discharge for testing for probable cause only. The employer's rules are broader and in fact the employer believed that one way to random test was to test anyone sent to the doctor. If random testing is allowed under the policy the employer can choose how to do that by random numbers charts, throwing darts at a list of all employees, picking every tenth person to enter work for the day or any other method that does not single out specific employees. The employee was not disadvantaged by the employer's policy. The employee knew he could be fired for a positive drug test and the employer had already given him a second chance.

For these reasons, I would reverse and find misconduct connected with his employment.

Pamela I. Anderson, Commissioner

Appealed to Circuit Court.  Affirmed by Circuit Court December 17, 1999. [Court decision summary]

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Footnotes:

(1)( Back ) Although the commission concludes the report should have been admitted, the admissibility of the report does not change the ultimate outcome of the case as discussed in the body of the decision.