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

KENNETH D TAYLOR, Employee

MINOR'S GARDEN CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05600925MW


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 about seven months as a sales person for the employer, a garden center and nursery. In addition to waiting on customers and writing up sales, the employee's job duties included driving a "gator" all-terrain vehicle and a fork truck, and driving customers around in a golf cart. His last day of work was on November 28, 2004 (week 49).

The issue to be decided is whether the employee's actions, which led to his discharge by the employer, constitute misconduct connected with his employment.

In the summer of 2004, the employee was absent from work for a number of days in a row without providing notice to the employer. The employer's co-owner, William Minor, was told by one of the employer's managers, Henry Beck, that the employee had told Beck that he had been on a "bender". (1)   Minor told the employee that he wanted him to come to work sober. In response, the employee told Minor that he would "shape up".

On Thursday, November 25, 2004, the employee celebrated Thanksgiving with his family. The employee, who weighs about 165 or 170 pounds, began drinking that day at noon. Between that time, and the time he got a ride home later, the employee drank more than twelve 12-ounce beers, and he also drank three to four 8-ounce glasses of wine. The employee then got a ride home some time after 10 P.M. He had two more beers after he got home. He had his last drink that night at about 1:30 or 2:00 A.M.

On Friday, November 26, the employee worked from 1 P.M. to 8 P.M. At around 7:40 P.M. on that day, Henry Beck told the employee that a customer had said that the employee smelled like alcohol. The employee responded to Beck's statement by saying that nobody had said anything to him.

On Saturday, November 27, the employee came in to work at 8 A.M. At around 9 A.M., William Minor asked the employee to talk to him. At that time, the employee met with William Minor and Chad Minor, the assistant manager. In this conversation, Chad Minor asked the employee why he was still coming to work drunk; the employee said nothing in response to this. Also in this conversation, William Minor said that he had heard from Henry Beck about what had happened the night before, and that he did not like that and could not have it. The employee responded to this statement by saying that he was sorry and that it wouldn't happen any more. The employee asked if he could keep his job, and he was told that the employer would give it one more day and would talk to him on the following day.

That night, starting at about 6 P.M. and continuing until about 1 A.M., the employee drank at least twelve 12-ounce beers. He acknowledged that he may in fact have had a couple more beers than this.

The employee was scheduled to work starting at 9 A.M. on the following day, Sunday, November 28. He reported to work that morning. At some time around 10 A.M., William Minor encountered the employee in the yard. Minor, who was standing approximately two feet from the employee, observed that the employee had about him a strong smell of fresh alcohol. Minor told the employee that they couldn't have someone who smelled like he did doing his job. He also told him that there was a potential for injury to customers and co-workers if he used equipment in that state. He told the employee that he was being let go.

Considering the nature of the employee's job duties, which involved operating motor vehicles and transporting customers in motor vehicles, his employer had a legitimate interest in wanting the employee to refrain from coming to work with alcohol in his system to an extent that might affect his operation of such motor vehicles. Also, considering the employee's customer contact duties, including contacts in which he would be driving customers in motor vehicles, his employer had a legitimate interest in wanting the employee to refrain from coming to work with alcohol in his system to an extent that caused him to have an odor of alcohol about him which was perceptible to customers.
Prior to November, 2004, the employee had been specifically warned that the employer wanted him to come to work sober. Notwithstanding this, the employee consumed a very large quantity of alcohol on the evening of November 25-26, knowing that he was scheduled to report to work the following day. Given the amount and timing of his drinking on the evening of November 25-26, the employee clearly would have still had alcohol in his system when he reported to work on Friday, November 26. The amount of alcohol the employee would have had in his system when he reported for work on November 26 would probably have been significant enough to have an affect on his ability to safely operate motor vehicles, and to cause him to have a perceptible odor of alcohol about him.

On November 27, the employee was specifically warned against repeating such conduct, and he assured the employer that it would not happen again. Notwithstanding this, the employee, knowing that he was scheduled to report to work the following morning, consumed so much alcohol on the night of November 27-28, that he again would clearly have had alcohol in his system when he reported to work on Sunday, November 28. Given the amount and timing of his drinking on the previous evening, the amount of alcohol in the employee's system when he reported to work on November 28 would have been even greater than the amount of alcohol in his system when he reported for work on November 26, and this amount would clearly have been significant enough that it would have had an affect on his ability to safely operate motor vehicles, and would cause him to have a perceptible odor of alcohol about him.

The employer made the decision to discharge the employee because of his conduct in repeatedly coming to work with alcohol in his system, after having been warned against this.

The employee's conduct in repeatedly reporting to work involving customer contact and operation of motor vehicles, with alcohol in his system to an extent which would have affected his ability to operate motor vehicles and also caused him to have an odor of alcohol about him noticeable to others, represented 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 49 of 2004, the employee was discharged for misconduct connected with his employment with the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $160, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1) and that the entire amount must be repaid to the department because the overpayment was not because of any error by the department and was caused partially or wholly by the employee, within the meaning of Wis. Stat. § 108.22(8)(a) and (c).

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 49 of 2004, 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. The employee is required to repay the sum of $160 to the Unemployment Reserve Fund.

Dated and mailed May 16, 2005
tayloke . urr : 110 : 4  MC 653.1  PC 714.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner


MEMORANDUM OPINION

Based on its review, the commission is persuaded that the employee repeatedly came to work with significant amounts of alcohol in his system, even after having been repeatedly warned against this.

For one thing, the employee's own testimony about the quantities of alcohol he consumed and when he did so, is itself evidence on this point.

Generally accepted facts concerning the metabolism of alcohol in the human body, reflected in the Blood Alcohol Chart published by the Wisconsin Department of Transportation and repeatedly recognized and relied upon by courts, allow triers of fact to draw reliable conclusions about the amount of alcohol in an individual's system based on information about the number of drinks the individual has consumed and when they were consumed, taking into account the individual's weight and sex. See, Rowe v. Walker Stainless Equipment Co., Inc., UI Hearing No. 03001017BO (LIRC Dec. 19, 2003). Based on these generally accepted facts, it is clear that given the very large quantity of alcohol the employee consumed between noon on November 25 and the early morning hours of November 26 -- on the order of at least 20 drinks -- he would still have had alcohol in his system when he reported to work at 1 P.M. on November 26. Similarly, given the very large quantity of alcohol the employee consumed between 6 P.M. on November 27 and the early morning hours of November 28 -- on the order of at least 12 to 14 drinks -- he would still have had alcohol in his system when he reported to work at 9 A.M. on November 27.

In addition to the direct evidence in the form of the amount of alcohol the employee consumed, the employee made statements reasonably viewed as admissions that he was coming to work with alcohol in his system. If a statement is made in a person's presence which the person would ordinarily be expected to deny if it were not true, yet the person does not deny the statement, this may be treated as an "adoptive admission" -- a concession as to the accuracy of a statement made and not responded to. See, State v. Marshall, 113 Wis.2d 643, 651-52, 335 N.W.2d 612 (1983). The record here contains evidence of a number of statements by the employee that are reasonably viewed as "adoptive admissions". Thus, in the summer of 2004, when Minor told the employee upon his return from a period of absence that he wanted him to come to work sober, the employee's only response to Minor's statement was that he would "shape up". When Henry Beck told the employee on Friday, November 26 that a customer had said that the employee smelled like alcohol, the employee's response was simply that nobody had said anything to him. On the following day, Saturday, November 27, when Chad Minor asked the employee why he was still coming to work drunk, the employee said nothing in response. Finally, when in that same conversation William Minor said that he had heard from Henry Beck about what had happened the night before and that he did not like that and could not have it, the employee responded by saying that he was sorry and that it wouldn't happen any more, and by asking if could keep his job. In all of these cases, the employee faced clear accusations that he was coming to work under the influence of alcohol. The reasonable and expected response, if the accusations were not true, would have been some kind of denial. Instead, in each case the employee passed up the opportunity to deny the accusation, and thus effectively conceded it.

Finally, William Minor testified to his direct observation that on the morning of Sunday, November 27, the employee had about him a "strong smell of fresh alcohol". This evidence is consistent with the evidentiary inference, which may be drawn from the fact that the employee had consumed 12 or more beers the previous evening, that the employee still had a significant amount of alcohol in his system at that time.

The employee appeared to be taking the position that the real reason he was let go was simply that it was the end of the season. Thus, the employee testified that when William Minor told him on Sunday, November 28 that he was being let go, Minor did not say anything to the employee about his drinking being the reason. The administrative law judge, who was able to hear and observe the witnesses while they testified and who was therefore in a good position to make judgments about their credibility, clearly did not credit this testimony by the employee, but instead credited the contrary testimony of Minor on that point. The commission agrees with the credibility assessment of the administrative law judge.

As noted in the findings, the employee's job duties included the operation of a variety of motorized vehicles, including all-terrain vehicles and fork trucks, and his job also included transporting customers in a golf cart. Particularly in view of this, it is clear that the employer had a significant interest in having the employee not be affected by alcohol at work, and not smelling of alcohol at work. The evidence discussed above shows that despite this clear interest, and despite repeated warnings, the employee continued a pattern of consuming such large quantities of alcohol off-duty that it was inevitable that he would still have significant quantities of alcohol in his system when he next reported to work. His discharge for this reason, the commission concludes, was a discharge for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

 

NOTE: The commission had no disagreement with the findings, conclusions, or credibility assessments of the administrative law judge. It has made its own findings of fact and conclusions of law in order to set forth more fully why it has arrived at the same result as the administrative law judge.

 

cc: Lisa Baiocchi Witt



 

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Footnotes:

(1)( Back ) The commission does not intend this as a finding that the employee did in fact tell Beck he had gone on a "bender". The employee denied telling Beck this, and Beck did not testify. The description of what Beck told Minor is made only for background purposes, explaining the probable reason for Minor's subsequent statement to Taylor at the time, that he wanted him to come to work sober.

 


uploaded 2005/05/23