Blake v. Hercules, Inc., s. 0818-86-3
| Decision Date | 19 May 1987 |
| Docket Number | 0823-86-3,Nos. 0818-86-3,s. 0818-86-3 |
| Citation | 4 Va.App. 270,356 S.E.2d 453 |
| Parties | Edward H. BLAKE v. HERCULES, INC. VIRGINIA EMPLOYMENT COMMISSION v. HERCULES, INC. |
| Court | Virginia Court of Appeals |
John F. Zink, Legal Aid Society of the New River Valley, Christianburg, for Edward H. Blake.
Susan T. Ferguson, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Richmond, on briefs), for Virginia Employment Com'n.
Gail M. Waddell (Edwin C. Stone, Spiers, Stone & Hamrick, Radford, on brief), for appellee.
Panel: KOONTZ, C.J., and KEENAN and MOON, JJ.
The Virginia Employment Commission and Edward H. Blake appeal the circuit court decision which reversed the commission's award of unemployment compensation to Blake. The court held that Blake was not, as a matter of law, entitled to the benefits because "his termination was for cause." We reverse because Blake was not dismissed for misconduct connected with his work. 1 Branch v. Virginia Employment Commission, 219 Va. 609, 249 S.E.2d 180 (1978).
Code § 60.1-58(b) 2, effective at the time of these proceedings, provided: "An individual shall be disqualified for [unemployment compensation] benefits upon separation from the last employing unit ... if the Commission finds such individual is unemployed because he has been discharged for misconduct connected with his work."
In defining the misconduct necessary to disqualify an employee from receiving benefits, the Supreme Court of Virginia stated:
[A]n employee is guilty of "misconduct connected with his work" when he deliberately violates a company rule reasonably designed to protect the legitimate business interests of his employer, or when his acts or omissions are of such a nature or so recurrent as to manifest a willful disregard of those interests and the duties and obligations he owes his employer.
Branch, 219 Va. at 611, 249 S.E.2d at 182 (emphasis in original).
Blake worked for Hercules, Inc., a munitions factory in Radford, Virginia, as a solvent powder mixer from December 12, 1983, through April 2, 1985. Hercules manufactures explosives and of necessity maintains a stringent worker safety program. Its work rules preclude the use or possession of alcohol or drugs on company premises and further prohibit employees from being under the influence of alcohol or drugs while at work. Hercules makes all of the employees aware of these policies through the orientation process at the time of hiring, as well as through company newsletters and notices posted throughout the facility.
After receiving an anonymous telephone tip that Blake was using drugs, Hercules conducted a surveillance of Blake for two months, which included searches of Blake's person and his automobile. On March 22, 1985, at the direction of Hercules, Blake provided a specimen for urinalysis. The specimen tested positive for 161 nanograms per milliliter of cannabinoid, a derivative of marijuana. Blake denied using marijuana, but admitted that he had been in the presence of others who used it outside of working hours. Prior to receiving the urinalysis results, no evidence was discovered that Blake used or possessed drugs at work. Furthermore, there was no evidence that his work capacity was diminished during the period of surveillance or testing. Nevertheless, Blake was terminated on April 2, 1985, because of the positive drug test.
Blake filed for unemployment benefits. A deputy commissioner of the Virginia Employment Commission held that he had been terminated for misconduct connected with his work. After an evidentiary hearing before an appeals examiner, the examiner reversed the deputy's decision, stating:
Even assuming the accuracy of the evidence [the urinalysis result] presented by the employer, there is no evidence which would indicate that claimant's actions, demeanor, conduct, or thought process was [sic] negatively affected. There is also a total lack of credible evidence, scientific, legislative, or otherwise, which would reasonably cause inference that the claimant was "under the influence" of a cannabinoid substance merely through the recitation of figures gleaned...
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...constitutes misconduct ... is a mixed question of law and fact reviewable by this court on appeal." Id. (citing Blake v. Hercules, Inc., 4 Va.App. 270, 356 S.E.2d 453 (1987)). We are bound by the commission's findings of fact, which are supported by the evidence. The issue, then, is whether......
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