MARK H. ROWE, Employee

WALKER STAINLESS EQUIPMENT CO INC, Employer

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:

The employee worked as a seam welder and grinder for the employer, a manufacturing firm. The employee's last day of work was January 2, 2003 (week 1 of 2003), when he was discharged.

The employer has a drug and alcohol policy providing, among other things, that it is a violation of that policy to report to work or perform work under the influence of alcohol. The employer's policy provides for testing in certain circumstances, and it sets the positive test level for alcohol at a blood/breath alcohol concentration ratio (BAC) of 0.040. The employee had been provided a copy of this policy when he was hired, and he was aware of the policy and of its terms.

Under the employer's policy, an employee who is determined as the result of testing to be in violation of the policy is allowed to retain his or her employment if the employee passes a subsequent drug/alcohol test, agrees to participate in and successfully completes an alcohol or drug evaluation, counseling or rehabilitation program as required by the employer, and agrees to submit to periodic, unannounced drug tests at least once a year for two years following completion of the program. If such an employee is again determined as the result of testing to be in violation of the policy, however, discipline including discharge can result.

In October 2002 the employee came under suspicion of being under the influence of alcohol while at work, and he was subjected to testing under the "reasonable cause" provisions of the employer's drug and alcohol policy. In a pair of tests given at that time he was found to have BAC readings of 0.107 and 0.102.

Consistent with its policy, the employer imposed certain conditions on the employee as a result of his positive test. The employer moved the employee to second shift so that he would be available to participate in Employee Assistance Program (EAP) activities during first shift hours. He was required to stop at the hospital before work every day, for 30 working days, to take a breath test for alcohol. He was also made subject to unannounced testing for a period of 2 years. The employee was aware that if he tested positive for alcohol at work again he could be terminated.

On the morning of January 2, 2003, the employee got home from his shift at about 4:00 A.M. and consumed some alcohol. Later that same day, at about 2:00 P.M., the employee got a telephone call from his sister telling him that their mother had entered the hospital and that he should get over there. The employee's mother was not healthy, this was the second time she had been in the hospital in 2 weeks, and the employee believed that it was possible that she might be dying. Upon receiving this news, the employee consumed more alcohol. The employee then went to the hospital to see his mother. The employee then left the hospital and went to work, arriving there about 3:45 P.M.

At some point after the employee arrived at work on that day (January 2), the Plant Manager, David Britzman, observed that the employee looked the other way when Britzman talked to him, that his eyes were bloodshot and glassed over, and that there was a smell of alcohol on his breath. He had the night supervisor speak to the employee, and that supervisor concurred in Britzman's observations. They then consulted further with representatives of the Human Resources Department. A decision was made to have the employee tested for drugs or alcohol. The employee was tested at approximately 4:55 P.M., and the result showed that he had a BAC of 0.099. A confirmatory test was done at approximately 5:15 P.M., and the result showed that the employee had a BAC of 0.085. As a result, the employer discharged the employee.

The question of how much alcohol the employee had in his system when he reported to work at 3:45 P.M. is relevant to the question of whether his actions in doing so were a substantial disregard of the employer's interest. The Commission considers it appropriate to answer that question by drawing an inference based upon generally accepted facts concerning the metabolism of alcohol in the human body, which are reflected in the Blood Alcohol Chart published by the Wisconsin Department of Transportation.

The BAC Chart is reproduced in full in a footnote in a published court decision. State v. Hinz, 121 Wis. 2d 282, n. 2, 284-85, 360 N.W.2d 56 (Ct. App. 1984). It has been held that judicial notice may be taken of the BAC chart, even when it has not been placed into the record at trial. State v. Hinz, supra, 121 Wis. 2d at 290. See also, State v. Konkol, 2002 WI App 174, ¶ 8, 256 Wis. 2d 725, 648 N.W.2d 300 ("we have previously ruled [the blood alcohol chart] is so accurate that judicial notice may be taken of its trustworthiness"). As the Court of Appeals pointed out in Hinz, the BAC chart is simple to read and use. The Court also expressly held, that expert testimony is not necessary to translate the significance of the chart, as applied to an individual, to the trier of fact. State v. Hinz, 121 Wis. 2d at 286. (1)

As the BAC Chart reflects, alcohol is metabolized by the body at a rate which causes a reduction of BAC of approximately 0.015 per hour. This makes it possible to carry out a "retrograde" analysis, using an alcohol level measured at one time, to determine what the level would have been at an earlier time. Such retrograde alcohol level analysis has been relied upon in UI decisions. See, Duerr v. Village of Greendale (LIRC, Nov. 25, 1997), Duerr v. LIRC and Village of Greendale (Dane Co. Cir. Ct., Aug. 17, 1998), Hammen v. Warehouse Specialists Inc. (LIRC, Jan. 12, 1999). Based on the fact that the employee had a BAC of 0.099 at 4:55 P.M. and a BAC of 0.085 at 5:15 P.M., it can be estimated that when he reported to work that day at 3:45 P.M., the employee had a BAC of around 0.108 to 0.118. (2)    Thus, even considering the inherent lack of precision in such an estimate, it is a reasonable inference that the employee had a BAC of at least 0.100 at that point.

The issue for decision is whether the discharge of the employee for reporting to work with the amount of alcohol found to be in his system, was a discharge for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the Wisconsin Supreme Court defined "misconduct" for unemployment purposes as:

"...conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer." 237 Wis. at 259-60.

In Milwaukee Transformer Co. v. Industrial Comm., 22 Wis. 2d 502, 126 N.W.2d 6 (1964), the Court said:

In considering whether a breach of company work rules or collective- agreement provisions is misconduct, the `reasonableness' of the company rule must be assessed in light of the purpose of unemployment compensation rather than solely in terms of efficient industrial relations. We are less concerned with the 'reasonableness' of the rule from the point of view of labor-management relations, than with the 'unreasonableness' of the conduct of the employee in breach of the rule. The unemployment compensation statute is not a 'little' labor relations law. The critical question is whether Mrs. St. John's conduct was an intentional and unreasonable interference with her employer's interest, regardless of what construction was put on the rules or the reasonableness of those rules.

22 Wis. 2d at 512.

An employer has an interest in its employees presenting themselves for work in a condition in which they may work safely. This interest is certainly implicated in the case of an employee with job duties such as those of the employee herein, a welder and seam grinder who worked on a machine which presented a potential for injury due to electric shock. The employer's interest in having the employee be fit to work safely is unquestionably a substantial one.

Entirely apart from its interest in having its employees fit to work safely, an employer has an interest in having its employees be fit to work competently and efficiently. Employers hire employees and pay them for their services, based not simply on the hope that it will cause them no harm, but also on the hope that it will do them some good. They expect, and are entitled to expect, that employees will bring with them to work the skill and ability at their assigned duties which the employer hired them to exercise and which they are paid to exercise. The employer's interest in having its employees be fit to work competently and efficiently is thus also unquestionably a substantial one.

The employee's conduct in consuming the quantities of alcohol he did when he knew he was scheduled to return to work within only a few hours, and his conduct in then actually coming to work and attempting to work in that condition, was clearly intentional. Although he also testified that he thought he "probably" did not have control over his drinking on the day in question, the question of whether an employee is actually unable to abstain from consuming alcohol is one that must be answered by expert medical evidence. See, Trew v. Patrick Cudahy (LIRC, June 15, 1994). The employee did not establish by any competent evidence that he was unable to abstain from the consumption of alcohol. Furthermore, the employee's conduct in coming into work notwithstanding his condition, knowing (as he must have) how much alcohol he had consumed, was also clearly intentional conduct.

For the reasons described above, the commission concludes that the employee's actions in reporting to work and attempting to work when he had as much alcohol in his system as found and described above, were a disregard of the interests of the employer that was substantial, intentional and unreasonable.

The commission therefore finds that in week 1 of 2003 the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 2 through 25 and 33 through 47 of 2003, amounting to a total of $12,831.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal is not due to "department error" as defined in Wis. Stat. § 108.02(l0e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found. See Wis. Stat. § 108.22(8)(c)2.

Dated and mailed December 19, 2003
rowemar . urr : 110 : MC 651.1  MC 653.2  PC 714.01 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

This case arises out of the discharge of the employee for coming to work with alcohol in his system, contrary to the employer's rule, and after he had earlier violated that rule and been warned against a repetition of that violation. The Administrative Law Judge (ALJ) concluded that the employee's actions were not misconduct. The employer appealed.

The Wisconsin Supreme Court has emphasized the importance of the motives and intent of the employee in engaging in the conduct constituting the violation of a rule for which they are discharged. Thus, as is noted above in the Findings of Fact and Conclusions of Law, Milwaukee Transformer Co. v. Industrial Comm., 22 Wis.2d 502, 126 N.W. 2d 6 (1964), makes it clear that the "reasonableness" of a rule is not the sole consideration in determining whether an employee's violation of such a rule is misconduct. It is also critical, the Court has indicated, to look at whether the conduct which constituted the violation of the rule was an intentional and unreasonable interference with the employer's interests. See also, Fitzgerald v. Globe-Union, Inc., 35 Wis. 2d 332, 151 N.W. 2d 136 (1967), Consolidated Construction Co., Inc. v. Casey, 71 Wis. 2d 811, 238 N.W. 2d 758 (1976).

In this case, the employee had been found at work to have measured BACs of 0.107 and 0.102, and in addition to being directed into assessment and counseling, he had been warned that if he again tested positive for alcohol at work he could face discharge. Notwithstanding this, only a few months later the employee chose to consume so much alcohol prior to a scheduled work shift that, by the time that he was due to report to work, his blood alcohol concentration was probably somewhere in the range of 0.108 to 0.118. In addition, the employee then chose to report to work and attempt to work, in that condition, at his job as a welder supervising a machine which presented potential risks of electric shock. The commission concludes that this conduct, in these circumstances, was clearly an intentional, substantial and unreasonable interference with the employer's interests, and therefore constitutes misconduct.

There are significant differences between the situation which was presented in McKinney v. Goodwill Industries of Southeastern Wisconsin Inc. (LIRC, January 31, 2000), a decision relied on by the ALJ, and the circumstances of this case. As noted above, the unreasonableness of the conduct of the employee in breach of a rule is a "critical" consideration in determining misconduct, Milwaukee Transformer, supra, and in this case the conduct of the employee was particularly unreasonable given that it was a second offense, repeated only shortly after an earlier, similar incident which resulted in a clear warning by the employer against any repetition. Nothing in the McKinney decision indicates that the employee there had similarly engaged in an earlier infraction of the rule and been similarly warned about a repetition. In addition, as is also noted above, the reasonable inferences from the evidence here are that when the employee in this case came to work he had a BAC in the area of 0.108 to 0.118 - well over the 0.088 referred to in McKinney. The situation in this case is also readily distinguishable from that in Twining v. Plexus Corp. (LIRC, Jan. 17, 2001), another decision cited by the ALJ, in that the employee in this case reported to work with a much higher level of alcohol in his system than was the case in Twining.

The commission did not agree with the ALJ, that it has "referenced for guidance" the statutory standard for determining when an individual is operating a motor vehicle "under the influence" of alcohol. The fact that the commission made a passing reference to that standard in the course of one decision, Buysse v. Lenscrafters (LIRC, Feb. 17, 1999) did not constitute adoption of that standard as a guide for resolving UI misconduct cases. The commission has not held that a BAC necessary to support a finding of a violation of the prohibition against driving a motor vehicle under the influence of alcohol - a BAC which, it should be noted, is now 0.080 - is either required for, or conclusive on, a finding of misconduct.

Finally, the commission did not agree with the ALJ's view, that the circumstances involving the hospitalization of the employee's mother constituted a mitigating circumstance which should alter the decision on whether his actions were misconduct. For one thing, as discussed above, supra at n. 2, the evidence concerning how much alcohol the employee had in him is inconsistent with the idea that it was attributable to the mere two beers the employee testified to drinking upon hearing the news about his mother. If the employee's testimony on that score was accurate, as the ALJ evidently considered it was, then the only other explanation for the high level of alcohol in the employee was the drinking he had done earlier that day - but that, of course, occurred before he had heard the news about his mother. In any event, the commission is simply disinclined to view the situation here as one which mitigates the employee's behavior. Whether or not the emotional strains the employee was subject to can be seen as some kind of justification or explanation for his drinking, the commission believes that they cannot be seen as mitigating the employee's decision to then go into work with such an alcohol level.

NOTE: The commission's decision to arrive at a different result than that reached by the ALJ is not a reflection of any different view of the facts of the case or of the credibility of the witnesses. The commission had no disagreement with the material findings of fact made by the ALJ. The commission has arrived at a different result because it takes a different view of how the applicable law applies to the facts of this case, as described above.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

The employee should contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: 
Attorney Michael H. Auen
Mark H. Rowe

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(1)( Back ) It has also been noted, that the BAC chart, and other informational publications of WisDOT concerning the effect of alcohol, are within the "public records" exception to the hearsay rule, see, State v. Hinz, 121 Wis. 2d 282, 288-89, 360 N.W.2d 56 (Ct. App. 1984), Lievrouw v. Roth, 157 Wis. 2d 332, 459 N.W.2d 850 (Ct. App. 1990), Sullivan v. Waukesha County, 218 Wis. 2d 458, 578 N.W.2d 596 (1998).

(2)( Back ) It may also be readily inferred from applying the BAC chart to the evidence in the record, that the employee either consumed so much alcohol when he was drinking upon arriving home from his previous shift early in the morning of January 2 that some of it was still in his system half a day later, or that he had well more than 2 beers when he started drinking at 2:00 P.M. that day following the telephone call from his sister, or both. Based on the BAC chart, it is quite clear that the two beers the employee acknowledged drinking at around 2:00 P.M. would have been nowhere near enough to account for the BAC levels found when the employee was tested at around 5:00 P.M. However, the commission does not find it necessary to make a specific finding of fact as to how many drinks the employee consumed on the afternoon of January 2 as compared to earlier that day. It is sufficient for purposes of resolving the issues presented in this case to find, as the commission does, that he had consumed sufficient alcohol on that day to have the result that he was at a BAC of around 0.085 to 0.099 one and one-quarter hours after he started working, which indicates that he had a BAC of around 0.108 to 0.118 when he reported to work.

uploaded 2003/12/22