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

CATHY J WICHMAN, Employee

ENGINEERED PLASTICS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04603667MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for eleven months as a machine operator for the employer, a plastic manufacturer. Her last day of work was March 12, 2004 (week 11) and her date of discharge was March 17, 2004 (week 12).

The issue to be decided is whether the employee's discharge was for misconduct connected with her employment.

The employee came to work intoxicated on January 28, 2004 (week 5). In lieu of termination, the employer had the employee sign a Last Chance Agreement. Under the terms of the agreement the employee was to attend, participate in and successfully complete alcohol rehabilitation classes. As part of those classes the employee was to remain completely sober and was to reveal any relapses to her counselor.

On March 11, 2004 (week 11), the employee was arrested for drunk driving. The employee did not mention the incident to the therapist at her next session, which was held on March 16 because she was the last person to speak at the session and ran out of time. There were nine people at the session which lasted an hour and a half. The employee planned to tell her therapist about the drunk-driving incident at her next session. The employee called her supervisor and informed her supervisor that she had to be off work on March 15 and 16 because she had court dates for a drunk driving arrest. The employer then discharged her for failing to tell the counselor about her drunk driving arrest because the employer concluded this failure was a violation of her last chance agreement.

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."

The employer's Substance Abuse Testing and Assistance Policy states that a worker who is referred to EAP and refuses to undergo and successfully complete counseling treatment may be discharged. The last chance agreement itself does not specifically mention being alcohol free or disclosing relapses to the counselor, but the testimony of the parties suggests that these were conditions of the employee's counseling treatment that she was required to successfully complete. The employee credibly testified that she was the last person to speak at the counseling session and the session ended before she could inform her counselor of the incident. While the employee should have made more of an effort to bring such an important fact to her counselor's attention immediately, the employee's failure represented poor judgment on her part and did not amount to such a wilful and intentional disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 12 of 2004, the employee was discharged by the employer but that her discharge was not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 12 of 2004, if otherwise qualified.

Dated and mailed November 19, 2004
wichmca . urr : 145 : 1 MC 651.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found credible the testimony of the employer's witness who indicated that the employee said she did not tell her counselor about the drunk- driving incident because she was too embarrassed. The commission does not think that this is necessarily inconsistent with the employee's testimony that she ran out of time during the session. It is quite conceivable that the employee was embarrassed about what happened and was not eager to volunteer her story. Further, the commission notes that the employer discovered the drunk driving incident when the employee informed the employer that she would be absent on March 15 and 16 because she had to appear in court because of the incident. This demonstrates that the employee was not attempting to conceal the incident from the employer in that the employer was aware of her drunk driving incident prior to her failure to mention it at the counseling session and supports her assertion that she ultimately intended to tell her counselor about the incident but simply ran out of time.

cc: Attorney William G. Ladewig


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uploaded 2004/11/22