CHARLES W SMITH, Employee

DAIRYLAND BUSES INC, Employer

On June 12, 2004, the Department of Workforce Development issued an initial determination which held that the employee's discharge was for misconduct connected with his employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on July 13, 2004 in Milwaukee, Wisconsin before a department administrative law judge. On July 15, 2004, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal 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:

The employee worked approximately seven months as a school bus driver for the employer, a transportation service. The employer discharged him on May 24, 2004 (week 22), for reporting to work and starting his bus route with alcohol in his system, and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

On the morning in question, the employee reported for work at approximately 6:15 a.m. and subsequently started his bus route. The employee's supervisor thought he had smelled alcohol on the employee's breath, and so had the employee brought in from his route and sent for breathalyzer and urine tests. The employee was tested at approximately 8:00 a.m., at which time he had a blood alcohol content of .032.

The employee indicated that he had drunk several beers the previous night, but nothing within at least 10 hours of reporting to duty. Assuming the accuracy of the employee's time line, the employee thus would not be in violation of one of the employer's rules, which prohibits drivers from using alcohol within four hours of driving or performing any other safety-sensitive functions. The employee was in violation of another employer rule, however, as well as state statute. The second employer rule prohibits employees from testing positive for drugs or alcohol, and there is no question but that the employee was in violation of this rule. In addition, Wis. Stat. § 346.63(7)(a)1 prohibits a person from driving or operating a commercial vehicle while having an alcohol concentration above 0.0. At the beginning of the employee's employment, finally, he certified to his responsibility for reading, understanding, and obeying all employer policies and federal Department of Transportation (DOT) regulations regarding alcohol and drug use and testing.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The commission believes the employee's having reported to work and gone out on a bus route with a significant blood alcohol content, meets this standard. The employee certified his acceptance of responsibility for reading, understanding, and obeying all employer policies and DOT regulations regarding alcohol and drug use. The employee's failure thus must be deemed intentional. It was also a substantial failure on the employee's part, as the employee was in violation both of DOT regulation and state statute, and of employer policy.

The commission therefore finds that, in week 22 of 2004, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid unemployment insurance for weeks 23 through 45 of 2004, totaling $1,948.00, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). The commission finds, finally, that waiver of recovery of these benefits is required under Wis. Stat. § 108.22(8)(c), because the overpayment was the result of department error and not employee fault as provided in Wis. Stat. § 108.04(13)(f). Specifically, the administrative law judge's finding, that the employee had never been advised by the employer that having any amount of alcohol in his system would violate the employer's rules, is factually erroneous.

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 22 of 2004, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. Recovery of the $1,948.00 overpayment is waived.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed November 17, 2004
smithch . urr : 105 : 1 MC 651.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, 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 employee's certification of responsibility for reading, understanding, and obeying employer policies and DOT regulations regarding alcohol and drug use is sufficient to establish the employee's knowledge of the alcohol level rules at issue in the case.

cc: Dairyland Buses, Inc. (Milwaukee, Wisconsin)

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uploaded 2004/11/22