LARRY D BATES, Employee

PORT CITY BAKERY INC, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 37 of 2004, if otherwise qualified.

Dated and mailed January 11, 2005
batesla . usd : 105 : 1   MC 652.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission has affirmed the appeal tribunal decision in this matter, because it agrees with the administrative law judge's conclusion of no misconduct. The employer discharged the employee for two reasons: first, for having failed an alcohol breathalyzer test and, second, for refusing a drug screening test. As to the first matter, the employer's policies do not establish that the employee's blood alcohol level constituted a failing of the test. The employer's rules prohibit an employee from working under the influence of alcohol, but do not quantify that term. The employer's Substance Abuse Policy comes closest to doing so, by indicating that discipline will be imposed for an alcohol content of .04 percent or greater. The employee's blood alcohol level was only .031, however, so the employee's positive breathalyzer test on its face does not constitute a violation of any defined employer policy. The employer's competent evidence also did not establish that the employee was "under the influence" of alcohol while at work.

As to the second reason, in the narrow circumstances of this case, the commission agrees with the administrative law judge that the employee's failure to submit to a drug screen was not misconduct. The employee had just been told by employer personnel that the positive alcohol test would result in the employee's discharge. From this point, there would be no reasonable basis for the employee to also submit to the significant personal intrusion a drug test represents.

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

cc:
Port City Bakery, Inc. (Green Bay, Wisconsin)
Stacy Strey

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uploaded 2005/01/18