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

CHRISTINE C BRAUN, Employee

MANITOWOC ICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04403105MN


On August 13, 2004, the Department of Workforce Development issued an initial determination which held that the employee's discharge had been for misconduct connected with her employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on September 28, 2004 in Manitowoc, Wisconsin before a department administrative law judge. On October 20, 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 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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately five years for the employer. The employer discharged her on July 26, 2004 (week 31) following a positive drug test for alcohol 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 July 23, 2004, the employee was selected for a random alcohol/drug test. The employee had reported to work between 6:30 and 6:45 a.m. and took the test at approximately 7:10 a.m., the result of which was a .047 blood alcohol level. The employer, upon learning the results of the test, suspended the employee pending discharge, and subsequently discharged the employee on July 26, 2004 (week 31).

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 employee's having reported to work with a blood alcohol content over .05 meets this standard. An individual metabolizes alcohol at the rate of .015 percent per hour. See State v. Hinz, 121 Wis. 2d 282, 284, 360 N.W.2d 56 (Ct. App. 1984). Given that the employee's blood alcohol content was .047 at approximately 7:10 a.m., it was above .05 when the employee reported to work between 25 and 40 minutes earlier. This was the employee's second such offense in approximately five months. On February 18, 2004, the employee had tested positive for an unauthorized controlled substance and had received a three-day suspension therefor. The employer's drug/alcohol policy, which the employee acknowledged receipt of, specifically prohibits employees from being under the influence of alcohol while on company premises, and defines "under the influence" to be a blood alcohol content of .04 or higher. The employee conceded that the night before the test, she had drunk approximately 8 full glasses of spiced rum, an amount consistent with a .047 blood alcohol content at approximately 7:00 a.m. the next morning. The employer, finally, has a stated, legitimate interest in providing a safe working environment for employees and for the general public, and its rule regarding alcohol is reasonably directed to that end.

The commission therefore finds that, in week 31 of 2004, the employee was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid benefits in the amount of $329.00 per week for weeks 31-36 and 44-49 of 2004, totaling $3,948.00, for which she was ineligible and to which she 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 departmental error and not employee fault as provided in Wis. Stat. § 108.04(13)(f). Specifically, the administrative law judge held that the employer's alcohol test evidence was deficient because the certification language in the employer's form did not include the language "with full knowledge of the penalty of fine and/or imprisonment." This matter is governed by Wis. Stat. § 108.09(4m), which allows introduction into evidence of the contents "of verified or certified reports by qualified experts presented by a party or the department . . . in so far as the reports are otherwise competent and relevant, subject to such rules and limitations as the department prescribes." There is no limitation in the unemployment insurance administrative rules upon the admissibility of otherwise competent and relevant certified reports by qualified experts. Thus, the administrative law judge imposed upon the employer an evidentiary requirement that does not exist. This constitutes an error of law, requiring waiver of recovery of benefits paid as a result of the issuance of the appeal tribunal decision.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 31 of 2004, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The department's monetary computation (Form UCB-700), issued on November 16, 2004, is set aside.

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 January 27, 2005
braunch . urr : 105 : 1  MC 652.4  MC 651.1  BR 335.01    MC 651.2  MC 653.1  PC 714.06  PC 714.10

/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. As indicated above, the commission's reversal is as a matter of law; it thus was not based upon a differing credibility assessment from that made by the administrative law judge.


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