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

MARK C VAALER, Employee

WETTSTEIN & SONS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03003803LX


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 almost two years as a delivery driver for the employer, an appliance and electronics retail store. The employee was discharged on April 22, 2003 (week 17).

The issue is whether the employee was discharged for misconduct connected with his employment.

As a delivery driver, the employee was assigned to move heavy appliances and to drive a delivery truck, and had personal contact with customers each day.

During the evening of April 21, 2003, the employee consumed enough alcohol between 5:00 p.m. and 10:00 or 11:00 p.m. to become intoxicated.

After the employee reported for work at 7:30 a.m. on April 22, 2003, he smelled of alcohol, and his face was red and his eyes bloodshot. As a result, the employer directed him to undergo an alcohol screen. The employee's first alcohol breath test reading, taken at 8:54 a.m., was .068, and his second, taken 15 minutes later, was .063. The employee was discharged as a result.

The employer's substance abuse policy (page 4 of exhibit #1) states, as relevant here, that:

Wettstein's has a no tolerance policy on substance abuse. Possessing, dispensing, or using alcohol . . . is strictly prohibited. Reporting to work or working under the influence of alcohol . . . is strictly prohibited. If we have reasonable suspicion that an employee is under the influence, we reserve the right to take the employee immediately to . . . be tested at our cost . . . 

Employees who use . . . alcohol off the job run the risk of jeopardizing the safety of themselves and those around them. Whenever such usage adversely affects public trust in Wettstein's or otherwise interferes with Wettstein's business, we retain the right to take disciplinary action against the offending employee up to and including termination.

An employee found violating any of these provisions will be subject to immediate dismissal.

The employer's Substance Abuse Testing Program policy (page 7 of exhibit #1), specifies breath tests for the presence of alcohol as one of its authorized tests, and states as follows, as relevant here:

PURPOSE
To eliminate any unsafe work conditions that result in worker's compensation claims.
To reduce absenteeism and tardiness problems as it relates to substance abuse.
To ensure the wellbeing of the company's employees . . . 

 . . . Any employee who refuses to take the test or tests positive, as a result will be subject to discipline up to and including termination.

Wettstein's is devoted to the health, efficiency and stability of the company, its employees, and the safety of the community . . . 

The employee had assigned his teammate to drive the truck on April 22, 2003, although the employee would be moving and installing appliances and interacting with customers that day.

The employee concedes that he violated the employer's substance abuse policy, but contends that he did not do so intentionally because he did not believe, when he reported to work, that his alcohol level was as high as it turned out to be.

The employee also concedes that it was wrong to come in to work with alcohol on his breath, that it was contrary to the employer's interests for him to come into contact with customers with alcohol on his breath, and that he "totally understands" that he was in the wrong.

In order for misconduct to be established as a result of their violation, employer policies which limit an employee's ability to consume alcohol during off-duty hours, must be known to the employee; must specify the consequences of a positive alcohol screen (Alexander v. Unified Solutions, Inc., UI Hearing No. 03600003RC (LIRC July 10, 2003), Luis v. Liquid Container Ltd. Partnership, UI Hearing No. 01600159RC (LIRC July 6, 2001); and must bear a reasonable relationship to the employer's business interests (Turner v. Aurora Health Care Metro, Inc., UI Hearing No. 02605534MW (LIRC Feb. 18, 2003), Twining v. Plexus Corp., UI Hearing No. 00402697AP (LIRC Jan. 17, 2001).

The evidence of record shows that the employer policies at issue here satisfied these criteria, and that the employee's actions violated these policies.

The record shows, through both the employee's testimony, and his signed acknowledgement that he had received a copy of the employer's handbook, of which its substance abuse policy was a part (page 6 of exhibit #1), and a copy of the employer's substance abuse testing program policy (page 9 of exhibit #1), that he was aware of the employer policies at issue here. These policies, although not models of organization or clarity, do specify that off-duty use of alcohol which interferes with the employer's business interests, and a positive breath alcohol test, were grounds for discipline, up to and including termination. Finally, given the stated purpose of the employer's substance abuse testing program policy and the safety goals the employer sets forth in its substance abuse policy, and given the nature of the work performed by the employee as a delivery driver, i.e., the handling and moving of heavy appliances, the driving of delivery vehicles, and frequent customer contact, the record demonstrates that the policies at issue here bear a reasonable relationship to the employer's valid interests in ensuring the safety of its employees and customers, and projecting a positive image to the public and to its patrons.

The commission therefore finds that, in week 17 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 in the amount of $9,386 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 17 of 2003, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $9,386 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on April 27, 2003, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed January 27, 2004
vallema . urr : 115 : 1    MC 651.1  MC 652.5   MC 653.1

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law. The administrative law judge concluded that a violation of the employer's substance abuse policies would only be proved if the record showed that the employee was "under the influence" of alcohol at work, i.e., actually impaired. However, the commission is of the opinion that this conclusion ignores the reference in the substance abuse testing program policy to the consequences for a positive test result; ignores the employee's implicit acknowledgement that having alcohol on his breath while he interacted with customers would have interfered with the employer's business interests, contrary to the provisions of the substance abuse policy, had he continued to carry out his work duties on April 22, 2003; and ignores the fact that the employee concedes that he violated the employer's substance abuse policies by reporting to work with an alcohol level exceeding .068.


Appealed to Circuit Court.  Affirmed January 12, 2005.        [Summary of circuit court decision]

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