STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

EUGENE GONZALES, Employee

IN SINK ERATOR MFG DIV, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02610780RC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about four and a half years as an assembler for the employer, a manufacturer of garbage disposals. The employee's last day of work was October 28, 2002 (week 44), when he was discharged.

The issue to be decided is whether the employee's actions, which led to his discharge by the employer, constitute misconduct connected with his employment.

Effective May 1, 2000, the employer revised its Substance Abuse Policy. Workers were informed of the changes via a written memo, which was disseminated on March 1, 2002. The policy stated, "Employees who test positive will be terminated." A "positive test result" for purposes of alcohol was defined under the policy as a blood alcohol concentration "of .04 [gm/ml] or greater by an alcohol breathalyzer test."

On October 29, 2002, the employee reported to work. At approximately 9:00 a.m. he was asked to submit to a breath test for alcohol. The employee was taken to a medical clinic where a breathalyzer was performed. The employer received certified Unemployment Insurance Drug Testing Report forms. The form was incomplete. The form, entitled "Obtaining and sealing the specimen" did not have any information other than a note indicating the attached employer information should be consulted. The employer did submit a form and the employee did certify that he was submitting to a breath alcohol testing requirement. However, the breath alcohol technician merely indicated he was conducting the breath alcohol test on the employee in accordance with procedures established by company policy. He further indicated that he was qualified to operate the testing devices. The employer also attached a tape showing alcohol concentrations of .052 and .055. The employer discharged the employee on the basis of the test results.

The employee acknowledged receiving a copy of the employer's Substance Abuse Policy. He was aware that a breath test of .04 or more would result in his discharge. The employee had consumed alcohol the night before his last day of work, but stopped drinking by 11:00 p.m.

The employer in this case failed to follow its policy with regard to testing for alcohol. The employer did not present any witness who could testify that the employee appeared to be impaired. The stated reason for the policy is that it seeks to control alcohol and substance abuse at the employer. The employer is attempting to regulate the employee's legal, off-duty conduct. The employer has not indicated that it has a legitimate interest in regulating the employee's off-duty conduct in this case. While the employer does have a right to regulate off-duty conduct, in order for the violation of a work rule relating to off-duty conduct to constitute misconduct, the rule must bear a reasonable relationship to the employer's interest. Twining v. Plexus Corp., UI Dec. Hearing No. 00402697AP (LIRC January 17, 2001). Further, the employer's policy indicates that a supervisor needs to observe the conditions giving rise to the suspicion. The employer failed to establish that a supervisor determined that the employee should be tested.

In this case, the employer failed to establish that it followed its policy with regard to testing the employee. Further the employer failed to establish that it had a legitimate interest in regulating the employee's off-duty conduct. As such, it cannot be determined that the employee's discharge was for misconduct connected with his work.

The commission therefore finds that in week 44 of 2002, the employee was discharged but not for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in week 44 of 2002, if otherwise qualified.

Dated and mailed June 20, 2003
gonzaeu . urr : 145 : 1  MC 651.2  MC 652.5  MC 653.1

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner




MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing but reverses the ALJ's decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

cc: In-Sink-Erator (Racine, Wisconsin)


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uploaded 2003/06/27