dissenting.
While acknowledging that the factual findings of the commission are conclusive and that judicial review at the trial or appellate level is confined to questions of law, see Code § 60.2-625, the majority makes its own factual finding, in conflict with that of the commission, in order to affirm the trial court’s reversal of the commission. The majority finds that Carter’s initial attempt to obtain money for his compliance with the new drug policy evinces “a mind obviously motivated by personal gain rather than constitutional concerns.” The commission, on the other hand, found that Carter’s conduct was “not an act of extortion; rather, it was basically a misguided protest of an overbroad rule which was being arbitrarily imposed without adequate notice.”
The commission recognized that, while “every employer has a legitimate business interest in trying to maintain a work place which is free from the dangers and distractions caused by the abuse of alcohol and drugs,” certain businesses are justified in imposing more stringent requirements than others. It explained that inherently dangerous occupations, such as those involving the manufacture of dangerous chemicals, the operation of dangerous machinery, the operation of motor vehicles, and other businesses whose work is “highly visible to the public or sensitive in nature, such as . . . law enforcement or [those] requiring a security clearance,” are businesses that can justify more stringent requirements. However, the commission found that the work of this employer did not justify the stringent requirements — random searches and drug testing — of its policy.
*542Undoubtedly, an employer has the right to impose rules intended to deter the use of drugs and alcohol at the work place. That, however, is not the question in this case. Rather, the question is under what circumstances may an employee be denied unemployment benefits after being discharged for declining to accept the new conditions of his employment. If his refusal constitutes misconduct, he bears the full financial burden of such refusal. If his refusal does not constitute misconduct, unemployment compensation benefits must be paid.
The commission found that the employer’s new drug policy, while permissible, was not required by the nature of its business. This conclusion was reasonable and within the commission’s authority. Consequently, the commission found that Carter’s refusal to comply with the new policy was not misconduct, but only “a misguided protest of an overbroad rule which was being arbitrarily imposed without adequate notice.” In my opinion, the trial court, and now this court, have erred in superimposing their judgment over that of the commission. I, therefore, dissent.
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