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

VICTORIA E INGRAM, Employee

THE LUTHERAN HOME INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04604127MW


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 14 of 2004, 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.

Dated and mailed September 3, 2004
ingravi . usd : 105 : 2  MC 653.1  MC 651.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 
MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it must agree with the administrative law judge's conclusion of misconduct. The employee asserts in the petition for review that she never consumed any alcohol while at work and that she always remained "functional." This latter assertion by the employee is questionable, however, given that she had a blood alcohol content of .04 almost two hours after reporting to work on her last day of work. Extrapolating back to the beginning of the employee's shift, the employee's blood alcohol content at that time was approximately .0725. This is a substantial blood alcohol level. In addition, the employer provided firsthand evidence that the employee was impaired on a previous occasion (in mid-September of 2003). At that time the employee signed a so-called "last chance agreement," a provision of which was that a subsequent positive alcohol test would result in discharge. The employee argues in the petition for review that it was unfair for the administrative law judge to hold the employee to that agreement. The commission disagrees. The record does not establish that the employer even had to allow the employee that opportunity in mid-September. The record indicates that the employer could, pursuant to its rules, have discharged the employee at that time. The employee cannot be said to have suffered a detriment by the employer's allowing her even the last chance it did.

For these reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.



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uploaded 2004/09/08