Andrews v. Employment Dept.

FILED: April 5, 2000

IN THE COURT OF APPEALS OF THE STATE OF OREGON

JAMES P. ANDREWS,

Petitioner,

v.

EMPLOYMENT DEPARTMENT
and JELD-WEN, a corporation,

Respondents.

(98-AB-1938; CA A103761)

Judicial Review from Employment Appeals Board.

Argued and submitted October 11, 1999.

Lee S. Werdell argued the cause for petitioner. With him on the brief was Werdell & Hanson.

Kirk S. Peterson argued the cause for respondent Jeld-Wen, Inc. With him on the brief were David J. Riewald and Bullard, Korshoj, Smith & Jernstedt.

Mary H. Williams, Assistant Solicitor General, waived appearance for respondent Employment Department.

Before Landau, Presiding Judge, and Linder and Brewer, Judges.

BREWER, J.

Reversed and remanded with instructions to enter order allowing benefits.

Claimant seeks review of a final order of the Employment Appeals Board (EAB) denying his claim for unemployment compensation benefits. Claimant argues that EAB erred, as a matter of law, in concluding that he was discharged pursuant to a reasonable drug testing policy adopted by employer and, further, in concluding that claimant's refusal to take a drug test on his own time, without compensation, constituted an act disqualifying him from eligibility for unemployment compensation benefits following his resulting discharge. ORS 657.176(9). We review for substantial evidence and errors of law. ORS 183.482(8). For the reasons set forth below, we reverse and remand.

The following facts are taken from EAB's findings and are supported by substantial evidence in the record. Claimant worked for employer from 1993 until he was terminated on June 16, 1998. At the time of his termination, claimant worked as a salvage cutter, sorting and cutting unusable wood. He used chop saws and other power tools in the performance of his work. On June 15, claimant talked to another employee during a production meeting. The manager asked claimant twice to be quiet and listen to the presentation, but claimant continued talking. In response to the manager's remonstrance, claimant told him that the conversation was none of the manager's business. The manager then told him to shut up and pay attention. The manager considered claimant's behavior to be unusual workplace conduct. After the meeting, the manager issued claimant a written reprimand for insubordination.

Employer's substance abuse policy, which has been in effect since 1989, provides that employer has "reasonable cause" to request an employee drug test when

"work performance and work patterns; physical symptoms or conditions; absenteeism and personal health; verbal or written warnings; concentration, and/or social interaction on the job indicate the possible influence of drugs or alcohol." (Emphasis in original.)

The policy further specifies that any employee refusing to submit to testing is subject to immediate discharge. Claimant received a copy of the policy on his initial employment in November 1993.

At the time he issued the written warning to claimant, the manager had claimant return to work but told claimant that he had to submit to a drug test after work that afternoon. When claimant asked if he would be compensated for his time in taking the test, the manager told him that he had to take the test on his personal time. Claimant replied that he would take the test during work hours or, if paid, after work hours, but stated that he would not take the test off duty without pay. The manager refused those conditions, and claimant did not take the test. When claimant reported to work the following day, employer discharged him for failing to take the test.

Claimant applied for unemployment compensation benefits following his discharge. Claimant appealed from an adverse administrative decision and was awarded benefits following a hearing before an administrative law judge (ALJ). Employer then sought EAB review of the ALJ's decision. EAB reversed the ALJ's decision, concluding that claimant was not entitled to benefits because he violated the terms of a reasonable drug testing policy by refusing to submit to testing under the conditions required by employer. Claimant petitioned this court for review.

In his first assignment of error, claimant contends that EAB erroneously concluded that employer's substance abuse policy was reasonable. Among other things, claimant argues that employer "did not have reasonable grounds to test [c]laimant * * *." Claimant asserts that employer's policy is unreasonable because employer "tests every employee who receives a disciplinary action, either verbal or written, for whatever reason." Claimant notes that his supervisor had no "safety concerns or suspicion of drug abuse by claimant."

EAB provided the following reasoning for its conclusion:

"The employer required claimant to submit to drug testing because he received a written warning for insubordination. The employer's substance abuse policy specifies that the employer has reasonable cause to test an employee for drugs if the employee receives an oral or written warning which indicates the possible influence of drugs or alcohol. The employer gave claimant a written warning for insubordination on June 15, 1998, after claimant behaved in a disruptive manner unlike his usual conduct in the workplace. Accordingly, reasonable grounds existed to test claimant pursuant to the terms of the employer's drug policy.2