CIRCUIT COURT ORDER/OPINION Stephine Gwin. Circuit Court CLERK

I (/).~ ~().L/ Appeal Docket No: -~Q~ •t:J;_-=f.t::==--,_l, _ _

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Please enter and distribute along with Board of Review Decisions/Orders and Referee Decision/Orders.

Board Member and assigned attorney to case

Other:

Potential Digest Case

Jl ( i) M Section of the Act

Date: ___ ~£~) P>--· _ .

PC REP _ _

R. Douglas Daligga. Director MES - Board of Review

Prepared by Stephine Gwin

Ja n . j . Z U U I I U : U lAM No .623l P. 2/ltl

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STATE OF MICHIGAN SHIA WASSEE COUNTY CIRCUIT COURT

DAVID L. FOWLER, Claimant/ Appellant)

vs. Case No. 06-4352"AE Han. Gerald D. Lostracco

MARUBENI METAL BLANKlNG, Employer/ Appellee, .

and

STATE OF MICHIGAN, DEPARTMENT OF LABOR AND ECONOMIC GROWTH, UNEMPLOYMENT INSURANCE AGENCY)

Appellee

------------~~----/ At a sessio~he Court held in Corunna, MI, on: c. IC ~-OQb Present: I

CIRCUIT COURT JUDGE

Order Reversing Decision. of the MES Board of Review

David Fowler having brought his Claim of Appeal from a Decision of theMES Board of Review holding him disqualified for the receipt of unemployment benefits, .the parties having had the opportunity to be beard by the filing of Briefs and the making df argumen~ in open Court, and the Court, being otherwis~ advised in the premises~ . ·

IT IS· ORDERED .that, for the r~uso~s ~tat~d .on the recc;>rd, and \nth· th~ ¢ou~·t''s a4qption of the reasoning of the dissentlhg member::of'the 'Board, .the Decisio!i of the MES 'Board · of Review holding Mr. Fowler disqualified for unemployment benefits is hereby reversed.

This Order resolves any and all pending claims and closes this case.

CIRCUIT COURT JUDGE

STATE OF MICHIGAN EMPLOYMENT SECURITY BOARD OF REVIEW

In the Matter of the Claim of

DAVID L. FOWLER, Appeal Docket No.: B 2005-11133-184560

Claimant Social Security No.:

MARUBENI METAL BLANKING INC.,

Employer

ORDER DENYING APPLICATION FOR REHEARING

This case is before the Board of Review upon application of the claimant for a rehearing by the Board with respect to its decision dated May 24, 2006. The Board of Review having read and considered said application, and having reviewed the record in this matter, is of the opinion rhat said application should be denied.

IT IS THEREFORE ORDERED that said application shall be and the same is here

CHARLOTTE L. DUNCIL (MEMBER), DISSENTING:

I disagree with the Board majority.

I believe the claimant's application for rehearing should be granted for the reasons expressed in my dissent from the May 24, 2006, Board decision.

MAILED AT LANSING, MICHIGAN JUL 1 3 2008

TPis order will become final Wlless a written appeal therefrom is RECEIVED by the clerk of (he appropnate circuit court on or before ·

AUG l 4 2006

TO PROTECT YOUR RJGHTS, YOU MUST BE ON TIME.

'·

STATE OF WliCHIGAN EMPLOYMENT SECURJTY BOARD OF REVIEW

In the Matter of the Claim of

DA v'ID L. FOWLER, Appeal Docket No. B2005-lll33-184560

Claimant Social Security No.

MARUBENI METAL BLANKING INC.,

Employer

DECISION OF BOARD OF REVIEW

Tills is an employer's appeal from a December 2, 2005, Administrative Law Judge (Referee) decision, which fo1.md the claimant not disqualified 1.mder Section 29(1)(m) of the Michigan Employment Security Act (Act).

Pursuant to the claimant's petition for oral argument, a hearing was scheduled for April 12, 2006, in Lansing, Michigan, at which time the following appeared:

David Davidson, claimant's attorney Shannon Wirth, employer' s attorney

The Board of Review, having listened to oral argument and having reviewed the Referee's decision in the light of the evidence in the record, is of the opinion that the Referee's decision is not in conformity with the law and facts and must be reversed. Our reasons are as follows.

The claimant worked for the employer from September 2002 1.mtil May 31, 2005. He was fired for refusing to take a drug test.

The employer had a policy prohibiting illegal drug use and a provision providing for drug testing. The pollcy indicated failure to submit to a drug test could result in termination. The claimant was aware of the policy. Because the employer experienced a number of unusual occurrences, and the employer was informed employees were using prescription drugs prescribed to other persons, the employer set up a drug test for May 31, 2005, for all of its 90 employees.

On the night in question, claimant was working the midnight shift which ran from ll :20 p.m. on May 30, 2005, until 7:30a.m . on May 31, 2005. At 6:30a.m. on May 31, 2005, all employees on the midnight shift were taken to a room and told they would be required to submit to a drug test. The claimant pulled Mr. Michel, the plant manager, aside and said he could not take the test. The manager presented claimant with three options: (1) he could take the test and if it was positive he would be fired; (2) if he refused he would be fired; or (3) he could quit. The employees includi..11g the claiffiant were told if they had a valid prescription and tested positive for that drug they would be okay.

B2005-ll133-184560 Page 2

Claimant disclosed that he had taken vicodin over the weekend from an earlier prescription a.""ld didn't know if the prescription was valid. While the vicodin was prescribed for back pain, claimant testified that he took it to relieve pain from a hemorrhoid.

The claimant asked to use his phone because he wanted to call his doctor and see if the prescription was valid. He was not allowed to make a call because two other shifts of employees were coming in that day and would be tested. The employer was concerned that the later shifts may be given advance notice .

. Ms. Torrey in human resources . asked claimant if he had a valid prescription and was under a doctor's care and he said no. She asked if it was an old prescription and he said yes. She repeated the three options. The claimant said he was concerned the test would be positive and refused to take the test. It was the claimant who raised the issue that he did not know if his prescription was valid.

In Exhibit C, the claimant indicated he was refusing to take the test and knew he could be fired. The claimant repeatedly refused. to take the drug test and was fired. One other employee refused to take the test and was fired. AU employees who tested positive were fired.

Section 29(l)(m) of the Act reads as follows:

(1) An individual is disqualified from receiving benefits if he or she:

(m) Was discharged for (i) illegally ingesting, injecting or inhaling, or possessing a controlled substance on the premises of the employer, (ii) refusing to submit to a drug test that was required to be administered in a nondiscriminatory manner, or (iii) testing positive on a drug test, if the test was administered in a nondiscriminatory manner. If the worker disputes the result of the testing, a generally accepted confirmatory test shall be administered and shall also ·indicate a positive result for the presence of a controlled substance before a disqualification of the worker under this subdivision. As used in this subdivision:

(A) "Controlled substance" means that term as defined in section 7104 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.7104 of the Michigan Compiled Laws.

(B) "Drug test" means a test designed to detect the illegal use of a controlled substance.

(C) "Nondiscriminatory manner" means administered impartially and objectively in accorda.11ce with a collective bargaining agreement, rule, policy, a verbal or written notice, or a labor-management contract.

B2005-11133-184560 Page 3

Section 29(1)(m) of the Act requires the claimant be disqualified if he refused to submit to a clrug test. The claimant here was asked to take a drug test which was administered pursuant to a valid policy. Additionally the test was administered in an impartial and objective manner, because all employees were tested. We find the testing was not discriminatorily administered by any objective standard as required under the Act. The Referee erred by applying a subjective assessment of "nondiscriminatory manner."

The claimant was reasonably concerned about whether he had a valid prescription for drugs he had recently taken. However, he could have preserved that defense had he taken the test and it proved positive. He instead refused to take the test and did so knowing this could result in his discharge. By refusing to take the drug test the employer was not able to determine if the claimant was one of the employees who were using other prescriptions drugs illegally. The claimant knew that failure to submit to the test would result in his discharge. The employer here acted reasonabty and under Section 29(1)(m) of the Act the claimant's refusal to submit to the requested drug test was disqualifying.

The Referee's decision is hereby reversed.

The claimant is disqualified for benefits UJ.J.der Section 29(1 )(m) of the Michigan Employment Security Act.

'This entire matter is referred to the Unemployment Insurance Agency for er proceedings in accordance with this decision.

CH..A.RLOTTE L. DUNCIL, tvffiMBER, DISSENTING:

I disagree with the Board m?.jority.

I have listened to oral argument and have · reviewed the Referee's decision in the light of the evidence in the record. It is my opinion that said decision is in conformity with the law a.Tld facts and should be affi..lTiled.

B2005-ll133-184560 Page 4

Section 29(1)(m) of the Act reads as follows :

(1) An individual is disqualified from receiving benefits ifhe or she:

(m) Was discharged for (i) illegally ingesting, injecting or inhaling, or possessing a controlled substance on the premises of the employer, (ii) refusing to submit to a drug test that was required to be administered in a nondiscrimin~tory manner, or (iii) testing positive on a drug test, if the test was administered in a nondiscriminatory manner. If the worker disputes the result of the testing, a generally accepted confirmatory test shall be administered and shall also indicate a positive result for the presence of a controlled substance before a disqualification of the worker under this subdivision. As used in this subdivision:

(A) "Controlled substance" means that term as defined in section 7104 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.7104 of the Michigan Compiled Laws.

(B) "Drug test" means a test designed to detect the illegal use of a controlled substance.

(C) "Nondiscriminatory manner" means administered impartially and objectively in accordance with a collective bargaining agreement, rule, policy, a verbal or written notice, or a labor-management contract.

The employer here (MMB) made the decision to drug test their entire workforce because of:

• specific circumstances involving three employees; • suspicions of cocaine use by "a couple more employees"; • and due to emails contained in an employee's company computer referring to trafficking

in prescription drugs, particularly "Klono".

The employer, at the time of claimant's discharge, bad a drug policy, which stated, in pa..rt:

The dates of testing will be announced in advance, except where the conduct or behavior of an employee is indicative of a person acting under the influence of drugs and alcohol or a p3.!-ticular situation or series of circumstances, in the opinion of MMB, call for immediate testing of one or more individuals. Tests will be administered at a location or locations to be announced by MMB.

In the event that a.TJ. employee reports to work and exhibits behavio-' consisrent with a person to be under the influence of drugs or alcohol, or v.:ho,

B2005-lll33-184560 Page 5

in the sole discretion of a supervisor or officer of lvf:MB, emits an odor consistent with one who has consumed alcohol, that employee shall be

. immediately sent borne without pay. In the event that an employee shall be sent borne three (3) times for such conduct, his employment will be terminated.

Employees, who believe, or who have been informed that their use of a drug (prescribed or over the counter) may present a safety risk, are to report the use of such drug to their supervisor or manager before starting work."

The employer implemented their decision to test the entire company by testing three shifts on the same day in the following order;. third shift (midnights) at the end of their shift, day shift immediately following testing of the midnight shift, at the start of their shift, and second shift (afternoons) at the beginning of their shift.

Claimant was an employee on third shift and therefore in the first group to be tested on the date in question. When informed of :tvilvfB 's intent to test all employees, claimant asked to speak to the Plant Manager. Claimant testified, "I told him the reason why I was scared to take a drug test." This reason was that be had been taking Vicodin over the weekend and that he had a prescription from his doctor. He stated that he had a prescription for Vicodin for, "like, a couple of years." but that he didn't know whether it was "valid."

Claimant testified that the Plant Manger (Mr. Michel) didn't know how to respond to his concern and called Julie Torrey (HR Director). Ms. Torrey testified at tra.11script page 27 that "he [claimant] was quite agitated, that he didn't want to take the test." Claimant testified that he talked to Ms. Torrey and said "I didn't know, like, what kind of a policy there was for expiration dates, you know, and as far a.S havin that on my record." Ms. Torrey provided confusing, conflicting information to claimant as to what constitutes a ''valid" prescription. Ms. Torrey could not, in her testimony ·at the Referee hearing, provide a definition of ''valid prescription" which was any clearer than what claimat1t understood prior to his termination. During the course of the Referee bearing, employer's counsel was also unable to provide any understandable definition of "valid."

The claimant clearly testified no one from the employer told him if he had a valid prescription and tested positive for the drug he would not be fired. The employer's witness could not verify that the claimant was specifically told that. Additionally, the claimant was reasonably concerned with the stigma that could result if an improper but positive drug test results being recorded in his personnel record.

Claimant asked for permission to use his cell phone to call his doctor. Ml\1B declined based on their concern for secrecy. Claimant then asked Mr. Michel "to call my doctor about it," which was denied.

B2005-11133-184560 Page 6

The Referee, in her decision states, at page 5, that "claimant is not sophistic.ated and, properly, was fearful of having such a matter as part ofhis record." She additionally states, "As to h.i...rn it was not administered impartially and objectively, but subjectively and based upon improper information .... His request for clarification was not inappropriate, especially when they did not have proper knowledge themselves. . . . When they chose to give unclear and incorrect information, that risk of confusing a worker causing a wrong decision was foreseeable."

Claimant's counsel has argued that Section 29(l)(m) of the Act must be read in its entirety. agree. In order for me to get to employer's assertion, I must first consider the Act in the following sequence.

"29(1)(m)(ii) Refusing to submit to a drug test that was required to be administered in a nondiscriminatory manner (C) "Nondiscriminatory manner" means administered impartially and objectively in accordance with a collective bargaining agreement, rule, policy, a verbal or written notice, or a labor-management contract."

Claimant's refusal cannot be adjudicated without considering the manner of administration of the test, which mus~ be done in a non-discriminatory manner.

I also have a concern that M1vffi 's "explanation" to claimant did not include the fact that he would have the right to dispute the result of the testing, or that he was entitled to a "generally accepted confurnatory test." Absent this information, and in addition to the confusing attempts at explanations by l'vilv1B, the demand that claimant submit to a drug test was done in a subjective manner based upon improper and inaccurate information. The Referee's reasoning that "When they chose to give unclear and incorrect information, that risk of confusing a worker causing a wrong decision was foreseeable," is absolutely correct.

For the reasons stated above I find that the Referee's decision is in accordance with the law, and must be affirmed. The employer did not prove the claimant should be disqualified under Section 29( 1 )(m) of the Act.

M_AJLED AT LANSING, MICHIGAN HAY 2 4 2000

This decision will become final unless a written request for rehe~ng to the Board OR c.ppea! to the appropriate circuit court is RECEIVED on or before JUN 2 3 2006

TO PROTECT YOUR RJGHTS, YOV MUST BE ON TIME.