Opinion
Record No. 1192-93-1
September 28, 1993
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY WILLIAM L. PERSON, JR., JUDGE.
(Ned N. Cary, Jr., pro se, on briefs).
(Stephen D. Rosenthal, Attorney General; Lisa J. Rowley, Assistant Attorney General, on brief), for appellee Virginia Employment Commission.
(Eva S. Tashjian-Brown; McGuire, Woods, Battle Booth, on brief), for appellee Anheuser Busch, Inc.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the circuit court. Rule 5A:27.
Ned N. Cary, Jr. appeals the decision of the circuit court affirming the determination of the Virginia Employment Commission ("VEC") that Cary was not eligible for unemployment compensation because he was fired from his position with Anheuser-Busch, Inc. ("Busch") for misconduct. Code § 60.2-618(2).
Cary was fired from his employment because he would not sign a consent form before submitting to the company's mandatory drug testing. On appeal, Cary asserts that the requirement that he sign the form violates his rights under the first amendment of the United States Constitution, as well as certain federal and state laws. He argues that signing the consent form would indicate he approved of Busch's drug testing program which, as a minister who had counseled fellow employees with drug abuse problems, he did not.
Under Code § 60.2-625(A), "the findings of the [VEC] as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law." See Shifflett v. Virginia Employment Comm'n, 14 Va. App. 96, 97, 414 S.E.2d 865, 865 (1992). "The VEC's findings may be rejected only if, in considering the record as a whole, a reasonable mind wouldnecessarily come to a different conclusion." Craft v. Virginia Employment Comm'n, 8 Va. App. 607, 609, 383 S.E.2d 271, 273 (1989) (emphasis supplied) (citations omitted). The circuit court determined there was no evidence of fraud.
[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.
Blake v. Hercules, Inc., 4 Va. App. 270, 272, 356 S.E.2d 453, 454 (1987) (quoting Branch v. Virginia Employment Comm'n, 219 Va. 609, 611, 249 S.E.2d 180, 182 (1978) (emphasis inBranch)). The employer must prove the employee's knowing misconduct. Virginia Employment Comm'n v. Gantt, 7 Va. App. 631, 635, 376 S.E.2d 808, 811, aff'd on reh'g en banc, 9 Va. App. 225, 385 S.E.2d 247 (1989). But, when an employment rule is involved,
that rule defines the specific behavior considered to harm or to further the employer's interests. By definition, a violation of that rule disregards those interests. The rule violation prong [of Branch], then, allows an employer to establish a prima facie case of misconduct simply by showing a deliberate act which contravenes a rule reasonably designed to protect business interests.
Id. at 634-35, 376 S.E.2d at 811.
The rule at issue was a provision of the collective bargaining contract negotiated between Busch and the union. The contract is applicable to all employees, whether union members or not.See National Labor Relations Act, § 9(a), codified as amended at 29 U.S.C. § 159(a). The rule at issue required all employees to submit a urine sample for mandatory drug testing and to sign a consent form.
The VEC found that Cary was initially dismissed in March 1992 because he refused to sign the consent form, and was reinstated with the understanding that he would be required to sign the consent form and undergo drug testing in May 1992. We cannot say that the VEC erred in finding that Busch's requirement that employees sign a consent form and submit to mandatory drug testing was a reasonable rule. Nor is there any question that Cary violated the company's rules when he refused to sign the form, although he indicated he would submit a urine sample.
The question then becomes whether Cary offered sufficient grounds to mitigate his misconduct. Gantt, 7 Va. App. at 635, 376 S.E.2d at 811. "Evidence of mitigation may appear in many forms which, singly or in combination, to some degree explain or justify the employee's conduct." Id. Those factors may include "the importance of the business interest at risk; the nature and purpose of the rule; prior enforcement of the rule; good cause to justify the violation; and consistency with other rules." Id.
While Cary has suggested some mitigating circumstances, he has not carried his burden to show those grounds were sufficient to justify his knowing violation of the company's requirement that he sign the consent form. As found by the VEC, the record indicates Cary's refusal to sign the consent form related to his disagreement with Busch's drug testing program as a whole. "[C]laimant's refusal to execute the required . . . [consent form] and his related conduct, and not the policy itself, is the dispositive issue in this case." Carter v. Extra's, Inc., 14 Va. App. 535, 540, 420 S.E.2d 713, 716 (1992) aff'd on reh'g en banc, 15 Va. App. ___, 427 S.E.2d 197 (1993) (employee refused to sign acknowledgement of employer's new drug policy). We do not accept Cary's argument that signing the consent form would indicate his agreement with Busch's drug policy. Cary had the right to refuse to sign the form, but he did so with the risk that he would be immediately discharged. We cannot say that the VEC erred in finding that Cary's grounds for refusing to sign the consent form were insufficient mitigating circumstances to justify his misconduct.
Accordingly, we affirm the decision of the circuit court.
Affirmed.