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

BRIAN E STRUCK, Employee

BEL RESOURCE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04607277MW


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 one month for the employer, a temporary help agency. He last worked at a light hand packing assignment for DCI Marketing, one of the employer's clients. His last day of work was September 10, 2003 (week 37), when he was discharged

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

On September 10, 2003, the employee injured himself using a box cutter, and was sent to Concentra Occupational Medical Center for treatment, and for administration of a breathalyzer alcohol screen. At 8:56 a.m., the employee's blood alcohol content was 0.089; at 9:13 a.m., the employee's blood alcohol content remained at 0.089.

The employee was discharged by the employer for violation of its alcohol policy. The employer's policy (exhibit #1), which the employee acknowledged receiving on July 30, 2003, states that reporting to work under the influence of alcohol would result in termination. It was the employer's consistent practice to conduct post-accident alcohol screening.

The employee had indicated to the employer his availability for assignments in printing, including bindery, pocket feeding, stapling, and stitching; in factory work, including assembly, inspection, and packaging; in electronics, including assembly and soldering; machine operation, including drill press, heat seal operation, punch press, and soldering; and general labor, including driving and mailroom duties.

The employee did not respond to any of the department's requests for information, and did not appear at the hearing.

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 for violation (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 v. Plexus Corp., UI Hearing No. 00402697AP (LIRC Jan. 17, 2001).

Here, the employee was aware of the employer's alcohol policy as the result of his written acknowledgement of its receipt; and the policy states the consequence, i.e., termination, for its violation. Considering the employee's work with potentially dangerous tools such as box cutters in his assignment with DCI Marketing, and his possible future assignment to work with other potentially dangerous machinery or tools for other clients of the employer, it is reasonable to conclude that the employer's policy bears a reasonable relationship to its business interests. See, also, Rowe v. Walker Stainless Equipment Co., Inc., UI Hearing No. 03001017BO (LIRC Dec. 19, 2003)(employer has business interest in having its employees fit to work safely, as well as in having its employees fit to work competently and efficiently).

The next question then is whether the employee violated the employer's alcohol policy, i.e., whether he was shown to be under the influence of alcohol at work.

The employer's policy does not define "under the influence." Moreover, the employer did not demonstrate at hearing that the employee exhibited signs of actual impairment on his last day of work. As a result, the employer could sustain its burden here only if the results of the employee's alcohol screen constituted a per se violation of the employer's policy.

The first question then is what the record establishes as the employee's blood alcohol level when he reported to work on September 10, 2003.

The properly certified test results show that, at 9:13 a.m. that day, the employee's blood alcohol concentration was .089. Although the record does not indicate what time the employee's shift started that day, (1)    it is a reasonable inference from the record that it started no later than 8:30 a.m., i.e., by no later than 8:56 a.m., the employee had reported to work, started working, injured himself, reported the injury, arranged transportation, and been transported to, and checked into, the medical facility. Utilizing the DOT Blood Alcohol Chart, (2)   this would mean that, at the start of his shift, the employee's blood alcohol concentration was at least 0.100.

The administrative law judge concluded here that, because the employee's blood alcohol concentration did not reach or exceed 0.100, Wisconsin's standard for driving under the influence (DUI) at the time, it could not be concluded that the employee was under the influence of alcohol on September 10, 2003. As concluded above, however, the 0.100 standard has been satisfied here. More important, however, is the fact that the commission, in Rowe, supra., specifically rejected adoption of the DUI standard as a bright line test in misconduct cases.

The commission concludes that the employer sustained its burden to prove misconduct. As the commission concluded in Rowe, supra., reporting to work in a factory setting with a blood alcohol concentration of at least 0.100 represents a substantial, intentional, and unreasonable disregard of the legitimate and significant interests of the employer in having its employees fit to work safely and competently, and constitutes misconduct within the meaning of Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941).

The commission therefore finds that, in week 37 of 2003, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission also finds that there was no overpayment of benefits.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 37 of 2003, 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 November 30, 2004
strucbr . urr : 115 : 1  MC 651.1  PC 714.01

/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 reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.



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Footnotes:

(1)( Back ) Although this employer in its petition for commission review states that the employee's shift started at 7:00 a.m. on September 10, that fact is not in the record.

(2)( Back ) In Rowe, supra., the commission ruled that it was appropriate to take administrative notice of this chart which reflects that alcohol is metabolized by the body at a rate which causes a reduction of blood alcohol concentration of approximately 0.015 per hour.

 


uploaded 2004/12/06