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

GREGORY R POPP, Employee

METRO MILWAUKEE AUTO AUCTION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04600025RC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Paragraphs 4 through 9 of the FINDINGS OF FACT and CONCLUSIONS OF LAW section are deleted and the following substituted for purposes of clarification and to more accurately reflect the evidence of record:

On November 21, 2003, the employee reported for work at 7:30 a.m. It was reported to the employer that the employee smelled of alcohol. The employee does not dispute that he smelled of alcohol, and attributes it to the fact that he had been drinking as late as 11:45 p.m. the night before. As a result, the employee was administered a Breathalyzer test. The test results, which the employee does not dispute, showed an alcohol concentration of .054-.057 g/ml. The employee returned to the employer's work site and was discharged.

The employer's policies (exhibit #2) state that disciplinary action, up to and including termination, will result if an employee reports to work or performs employer business "under the influence of alcohol." The employer's drug and alcohol policy (exhibit #3) repeats this, and states that, when the employer has reasonable cause to believe that an employee may be impaired during work time as the result of alcohol use, it may require he undergo an alcohol test. This drug and alcohol policy also states as follows:

Confirmation of the presence of alcohol...in the results of a post-accident...alcohol test may result in disciplinary action up to and including termination of employment (emphasis added).

The employer's policies make no other statement relating to the consequence of a positive alcohol test, or the criteria for determining when an employee is under the influence of alcohol.

Given the failure of the employer to demonstrate that the employee was actually impaired on November 21, or that the employee was on notice that a positive Breathalyzer test result of .057 could result in his termination, the employer failed to sustain its burden to prove misconduct.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2003, if otherwise qualified.

Dated and mailed July 8, 2004
poppgre . umd : 115 : 9  MC 652.1  MC 653.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employer failed to prove that the employee engaged in misconduct by violating its alcohol policy, i.e., failed to prove that the employee was under the influence of alcohol, or was on notice that a positive alcohol screen, or an alcohol test result as high as .057, would result in his termination.

Neither the smell of alcohol on the employee's breath (Case v. School District of Beloit, UI Hearing No. 89-000940JV (LIRC July 27, 1989)), nor a test result showing an alcohol concentration of .057 g/ml (See, e.g., Steele v. Wal Mart Associates, UI Hearing No. 03002369WU (LIRC Sept. 17, 2003)), even if considered in combination, would support a conclusion that the employee was under the influence of alcohol, i.e., actually impaired. Twining v. Plexus Corp., UI Hearing No. 00402697AP (LIRC Jan. 17, 2001).

In addition, 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, supra.).

The employer's policies do not satisfy this test. Although these policies specify a consequence for a positive alcohol test result when the test was administered because the employee was involved in a work-related accident, they do not specify a consequence when the test, as here, was administered because the employer had reason to suspect, because he smelled of alcohol, that the employee was impaired.

cc:
Manheim's Metro Milwaukee Auto Auction
Caledonia, WI


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2004/07/12