IN THE SUPERI OR COURT OF THE STA TE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
GENERAL M OTORS ) CORPORATI ON ) CIVI L ACTION NUMBER
) Appellant ) v. ) 03A-0 7-01 4-JO H
) MARK FRITZ )
) Appellee )
Submitted: March 5, 2004
Decided: June 9, 2004
MEMORANDUM OPINION Appeal from the Unemplo yment Insuranc e Appeal Boa rd -
REVERSED and REMANDED
Chad J. T oms, E squire, of Saul Ewing LL P, Wilmington, D elaware, attorney for appellant Mar k Fr itz, of Bear, Delaw are, Pro Se
HERL IHY, Judge
1
Tr. Appeals Ref. Hr'g G M Exhibit #2.
1
Employer General Motors appeals the decision o f t h e Un employment Insurance Appeal Bo ard which aw arded benefits to Claim ant M ark F ritz. The Boa rd aw arded him benefits because it determined that he was discharged fr om his employment w ithout just cause. The Court finds that the B oard' s decision is not supported by substantial evidence. Accordingly, the Board' s decision is REVERSED .
Facts General Motors (GM ) employed Fritz as an assembler at its Boxwood Road plant in Wilmington Delaware from 1982 until April 1, 2003, his date of di scharge. Fritz' s last day of actual employment was March 24, 2003.
F ritz' s employ ment w ith GM since 199 8 has con sisted of thr ee " term inatio ns, " including the one at issu e on Ap ril 1, 2 003, and two "last chance agr eements. " In Aug ust 1998, Fritz was fired as a result of his consumption of a bottle of Jack D aniels wh ile on his lunch break. On September 21, 1998, GM r ehired Fritz. In order to be rehired, he signed a " last chance agr eement" (h ereinafter "first last chance agreement") which provided tha t he woul d be sub jec t t o ran dom d ru g/alc ohol s creenings for one year of
"active empl oymen t."
1
Under this agreement, a positive f inding or refusal to be test ed
would be gro unds for immed iate termination. On M arch 5, 1999, F ritz tested posi tive for
cocaine. GM , in turn, again fired him on March 15, 1999.
2
Tr. Appeals Ref. Hr'g G M Exhibit #3.
2
Fri tz' s emplo yment with GM was aga in rei nst ate d on Febru ary 6, 2001 . On thi s date, Fritz sign ed a second last chanc e agreement (hereinafter "second last chance agreem ent"). Fritz' s reinstatement was a set tlement of a grievance filed by his union. The second last chance agree ment pr ovided tha t Fr itz would b e subject to random drug and alcohol tests for two ye ars of "active employment" following the reinstatement dat e of
Februa ry 6, 2001.
2
Active employment means not on sick l eave or lay off status. Similar
to the first las t chance agreement, a positive finding or refusal to be tested w ou ld be grounds for im mediate te rmin ation. Fritz and his union representative signed bot h the Mar ch 5, 1999 and the Febr uary 6, 2001 last chance agreements.
During the intervening, two years, F ri tz was laid off f or short periods of time on four separate occasions. None of them was longer than ten days. GM believed e ac h of
these lay off s mea nt Fri tz w as n ot o n ac ti ve e mpl oyme nt a nd o pera te d as a " stay" or extension of t he two year deadline.
The last a nd fourth layoff started on March 3, 2003 and lasted until March 17, 2003. On that date, Fr itz took anothe r drug test which later came back positive f or cocaine. The effect of the third pr ior layoff, however, was to extend the two year period to Mar ch 11, 2001, right in the mid dle of the M arch 3r d to Mar ch 17th layoff.
3
Board Decision 6/25/03.
3
As the Board accepted GM' s definiti on of active employment, the iss ue wa s whether comm encem ent of the fou rth layoff, prior t o March 11 th, tol led t he en d of t he tw o yea rs or it remained at March 11th. If the latter, th e March 17th drug test could not be
used as a b asis to term inate F ritz und er the se cond last ch ance agr eemen t.
The A ppeals Referee determined that Fritz was activel y employed on the testi ng date of March 17, 2003 a nd that the two year last chance agreement was sti ll in eff ect when Fritz tested positi ve for cocaine on that dat e. Therefore, the Referee determined that
Fr itz violated his second last chance a greement and was terminated for just cause and not entitled to unemployment benefits.
The Boa rd reversed the Appeals Referee and found that the two years ende d o n March 1, 2003, w hich, of course, was prior to Fr itz' s March 3r d layoff. It stated:
While the Employer testified t hat took the agreement out to April 8, 2003, the Board finds that, even if the 33 d ays were correctly calculated, the last
date for the agreement would be March 11, 2003. H owever, a closer look at the time periods in which t he Claimant was on layoff sta tus shows an overlap. Acco rd ing to the Employer' s documentation, the Claimant was laid off from January 2, 2002 until January 14, 2002 for a total of 8 days. The next layoff was from Mar ch 4, 2002, until March 11, 2002 for a total
of 5 days. T he next layoff was from January 2 7, 200 3 until February 10, 2003, for a total of 10 days. At this poin t, th e Claim ant' s agre ement w ould extend until March 1, 2003. The n ext layoff the Emp loyer id entifies is from Mar ch 3, 2003 until March 17, 2003 for a total of 10 days.
3
In calculating th e numb er of d ays to extend the agreement during each of the three layoffs, the Board excluded w eekends. The Board, however, did not explain its overlap
4
Morgan v. Anchor Motor Freight , 506 A.2d 185, 188 (Del. Sup er. Ct. 1986).
4
comme nt. It acknowledges that the deadline may have been extended t o March 11th but found it unfai r to extend the deadline past March 11th.
Part ies ' Clai ms GM advances three arguments why th e Board' s decision is in err or. Fir st, it asserts the Board' s miscalculat ed the number of days by stati ng the agreement expired on March 1, 2003. Second, it cont en ds the Board erred by saying even if the a greement
ended on March 11th, during the fourth layoff, the March 17 th d ru g test was too la te. Third, it arg ues that bec ause of F ritz' s history of substanc e abuse, he acted co ntrar y to his employ er' s interes t, rega rdless of whether this agreement had ended, and was terminated for cause for that reason.
Fr itz argu es t hat act ive empl oyme nt' s i nte rrupt ion for l ayo ff s mea ns a lay off more than 30 d ays . There were none dur ing the two years. This meant the two-year agreement
ended F ebrua ry 6, 2003 w ell befo re he f lunk ed th e drug t est on March 1 7, 2003. As to G M ' s right to terminate him in any event , he cites to a national UAW-GM contract provision barr ing, he says, looking past 18 months for disciplinary infractions.
Standard of Review On a ppe al from the Board, the Cour t' s role is to ascertain whet her the Board' s conclusions are s upp orte d by sub st ant ial evi den ce a nd f ree f rom l ega l er ror.
4
"Substantial
5
DABCC v. Newsome , 690 A.2d 906, 910 (Del. 199 6).
6
Streett v. Stat e , 669 A.2d 9 , 11 (Del. 19 95).
7
Weiss v. Del. Dep't of Health & Soc. Servs., Del. Super., C.A. No. 02A- 12-003,
Carpenter, J. ( July 30, 2003 ).
8
Boulevard Electric Sales v. Webb , 428 A.2d 11, 13 (Del. 1981).
9
Keeler v. Metal Masters Foodservice Equip. Co. , 712 A.2d 1004, 1006 (Del. 1 998).
10
Paul Webb, a United Auto Workers U nion official, and John Washington, an
International Service Representativ e for the UAW, both defined active em ployment as not including sick leave or layo ffs that are less than 30 days.
5
evidence" means "such relevant evidence as a reasonabl e mind might acc ept as adeq uate to support a con clusion. "
5
Only w here th ere is no substantial, compe tent eviden ce to
support the Board' s factual fi ndings may this Court overturn the Board' s decision.
6
" I n reviewing the reco rd fo r sub st ant ial evi den ce, th e Cou rt wil l co nsi der t he re cord in the light mo st favor able to the par ty prev ail ing bel ow, reso lvi ng a ll dou bts in i ts fav or."
7
The Cour t does not sit as the trie r of fact w ith author ity to weigh the evidence, determine issues of cred ibility or make its own factual findi ngs and conclusions.
8
The credibility of
witnesses, the weight of their testimony and the f actual inferences drawn therefrom are for the Board to determine.
9
Discussion The first issue is whether any layoff of less than 30 days qualif ies as a tol l or operates as an extension on the running of the two year s.
10
The Bo ard ado pted GM' s
definiti on of active employment, that is, a layoff of less than 30 days act s as an extension.
This part of its holdi ng is supported by substant ial evidence.
11
The Board calculated the number of day s on a Monday through Friday workweek
basis.
12
GM argues that this last layoff should have extended the second last chance
agreement to March 25, 2003. Alternatively, GM contends that ev en if the Board concluded that the second last chance agreement sho uld have expired on March 11, 2003, the six days between
6
The second issue is the determination of the proper date upon which the second last chance agree ment e xpire d. GM argues that Fritz spent 33 days on layoff stat us between Februa ry 2001 and March 2003. Therefore, GM ar gues that the last chance agree ment did not expire until March 19, 2003 and, therefore, was still in effect on March 17, 2003. T he
Bo ard held that Fritz' s active employment status under the agreement ended on March 1, 2003. It is unclear how the Board determined that date. On appeal, GM argues that the Bo ard miscalculated t he number of days that should have been added to extend the duration of the secon d last chanc e agre ement.
A summ ary of the Board ' s calculation r egard ing how it reach ed the exp iration d ate of March 1, 2003 is the foll owing:
* Fr itz was laid off for 8 days fr om Jan uary 2 , 2002 un til Januar y 14, 2002 (this
extended the sec ond las t ch anc e ag re ement f rom Feb ruar y 6, 2003 un til Febr uary 18, 2003).
11
* Fr itz was lai d off for 5 days from Mar ch 4, 2002 until Mar ch 11, 2002 (thi s
extended the second last chance agree ment fr om F ebrua ry 18 , 2003 un til Febr uary 25, 2003).
* Fr itz was laid off for 10 days from January 27, 2003 until Februar y 10, 2003
(this exte nded the sec ond las t ch anc e ag reeme nt f rom Feb ruary 25, 2003 un til Mar ch 1, 2003).
* Fritz was laid off for 10 days from March 3, 2003 until March 17, 2003.
12
March 3, 2003 and March 11, 2003 wou ld have extended the agreem ent to March 19, 2003.
7
The Board decided that because the agreement expire d on Mar ch 1, 2003, the last layoff occurr ed after the agr eement had e nded. The Boar d stated that adding this layoff would be disingenuous. The Board held that because the s eco nd last chance agreement was not in effect on March 17, 2003, G M coul d not r andom ly test Fritz for drugs since the national union agreement with GM does not allow for random drug testing.
The Board' s decision that March 1, 2003 was the expiration date of the second last chance agreemen t is not supported by substantial evidence. T he correct calculation is:
* Fr itz was on layoff for eight days f rom Januar y 2, 2002 un til January 14,
2002. These eight days of inacti ve employment extended the last chance agreement from F ebruary 6, 2003 until February 18, 2003.
* He was on layoff from March 4, 2002 until March 11, 2002. These five
day s o f inactive employment would have extended the last chance agreement until February 25, 2003.
* He was on layo ff from January 27, 2003 until February 10, 2003, for
period of ten days. This extended the last chance agreement until March 11, 2003.
* Fr itz was on layoff fr om M arch 3 , 2003 un til March 17, 2003, a total of
ten additional days.
Based on t his corr ec t calculat ion, the two year agreem ent would have expired on March 11th but for the layoff which started s ix working days prior to that date. Whether
one vie ws t he Marc h 3rd d ate as t he f irst day o f a t oll ing mech ani sm or just the five working days afer the 11th, the agre emen t di d no t ex pire until M arch 1 9th at the ear liest.
13
Appellant's Opening Brief at 9.
14
19 Del. C. $ 3315(2).
15
Hawthorne v. Linz Busing , 2003 Del. Super. LEXIS 2 88, *4-5 (Del. Super.) (citing
Avon Products, Inc. v. Wilson , 513 A.2d 1 315, 1317 (D el. 1986)).
16
2001 Del. Super. LEXIS 3 41 (Del. Super.).
8
This was after the dr ug test which Fritz did not pass.
The Board, therefore, committed a factual e r ror and it s factual fi ndings are not supported by substantive evidence.
G M ' s third argument is that t he Board' s decision "contains blat ant e rrors of l aw."
13
GM argues that the Board was in error for its determination that Fritz was eligibl e fo r unemployment benefits under the Code.
Under the Dela ware Code, a worker is ineligible for unemployment benefits for any week in which "the individual w as dischar ged fr om the in dividual' s wor k for ju st cause in connection with the indivi dual' s work... ."
14
"Just cause" is defined as a willful or wanton
act or pattern of conduct in violati on of the employer' s interest, the employee' s duties or
the employee' s expected standard of conduct.
15
GM ar gues that Fr itz' s positive test r esult
for co caine is con trar y to GM ' s expected standar d of cond uct.
GM cites the case of Carson v. Dew ey Beach Club
16
in supp ort of its thi rd
argum ent. This case , however, is factual ly unrelated to the ca se at bar and, therefore, distinguis hable. In Carson , a n employee signed an agreement which state d that he would be di sch arged if h e ca me to work in an int oxi cat ed co ndi ti on. Two ye ars l ate r, he came
17
Id. at *8.
18
Appellant's Opening Brief at 10.
9
to work in a visibly intoxi cated conditi on and was disch arged by his em ployer . This Court held that the e mploye e "a cted in violation of both the employer' s interests and hi s duties an d expected standar d of cond uct. "
17
GM incorr ectly describes the facts in its openin g
brief. GM states that the agreement that t he employee signed had expired at t he time that his employment was terminated. T hat is inco rr ect becaus e there was no e xpiratio n date in the agreem ent. Based on its inaccura te interpre tation of Carson' s facts, GM ar gues that just because the second la st chance agreement may have expired prior to the drug test on March 17, 2003, "GM has a rig ht t o ex pec t t hat it s emp loy ees wil l no t ar rive at w ork under the influence of coca ine."
18
Carson is not helpful f or resolving any issue in the case at ba r because in that case, unlike here , there was no limi tat ion o n it s ef fect . Fritz argue s th e nat ion UAW-GM
contract forbids GM from looking back 18 months. But tha t ag reeme nt i s no t i n th e rec ord from the Board. Based on the Court' s decision about the Board' s holdi ng, it is also unnecessary to reach that iss ue.
Conclusion For the reasons stated herein, the decision of the Unemployment Insurance Appeal Board is REVERSED and REMANDED .