BRADLEY J OLSON, Employee

COUNTY CLARE LTD, 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 about two months as a cook for the employer, a hotel and restaurant. His last day of work was January 26, 2004 (week 5), when he was discharged.

The employer asserted that the employee was discharged because he reported to work intoxicated on two occasions. The employer asserted that on both occasions the employee smelled of alcohol. The employer asserted that the employee's conduct was different from his normal conduct. The employer testified that he was acting erratically, and was agitated and aggressive with staff.

The issue to be decided is whether the employee was discharged for misconduct connected with his work for the employer.

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 compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to 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. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed `misconduct' with in the meaning of the statute."

In Shedd v. Interstate Blood Bank Inc., UI Dec. Hearing No. 03606437MW (LIRC March 26, 2004), the commission rejected the employer's assertion that the employee reported to work intoxicated. The commission noted:

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 employee maintained that his actions were due to stress because he had just recently begun to cook in a restaurant and was not handling it well. The employee denied being intoxicated on either occasion. The commission cannot conclude based on the testimony provided that the employee was intoxicated at work. The employee's behavior could be explained by stress. As in Shedd, absent is an objective test of the employee's blood alcohol level, or evidence of the employee's physical condition that would lead to the inference and conclusion that he was intoxicated. The record does not reflect that the employee was asked whether, or denied that, he consumed any alcohol prior to reporting for work.

The commission therefore finds that in week 5 of 2004, the employee was discharged but not for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 5 of 2004, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed October 22, 2004
olsonbr . urr : 132 : 1 : MC 653.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ regarding his impressions of witness credibility and demeanor. The ALJ indicated that he did not consider the employee's behavior to be consistent with that of someone experiencing stress. The ALJ did not impart any demeanor impressions he had of the witnesses that led to his credibility impressions of those witnesses.

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uploaded 2004/11/03