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

VANESSA I SHEDD, Employee

INTERSTATE BLOOD BANK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03606437MW


On July 4, 2003, the Department of Workforce Development issued an initial determination which held that the employee was discharged for misconduct connected with her employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on August 8, 2003 in Milwaukee, Wisconsin before a department administrative law judge. On August 14, 2003, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee in this case worked approximately four and a half months as a plasma processor for the employer, a plasma donor center. The employer discharged her on June 12, 2003 (week 24) for alleged intoxication while at work, and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that the employer's evidence was insufficient to establish the employee's alleged intoxication, and so reverses the appeal tribunal decision.

The employer discharged the employee for alleged intoxication while at work on June 10, 2003. The employee had the smell of alcohol on her breath, she was not satisfactorily performing her work, and she was much more talkative than usual. This evidence, absent additional corroborating evidence, as a matter of law is insufficient to establish that the employee was intoxicated while at work, the offense for which the employer discharged the employee.

The employer's work rules prohibit being intoxicated while at work. That the employee had the smell of alcohol on her breath, however, does not establish that she was impaired by alcohol while at work. Nor do the employee's talkativeness or her work failures. More important is the evidence that is missing, such as some kind of objective test of the employee's blood alcohol level (breathalyzer or urine test), or evidence of the employee's actual physical condition, such as a lack of coordination, a slurring of speech, or bloodshot eyes.

The commission therefore finds that, in week 24 of 2003, the employee was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 24 of 2003, if she is otherwise qualified.

Dated and mailed March 26, 2004
sheddva . urr : 105 : 1   MC 653.1

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, as a matter of law the employer's proof of the employee's alleged intoxication was deficient.

 

cc: Interstate Blood Bank, Inc. (Milwaukee, Wisconsin)


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