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

RICHARD W DOYLE JR, Employee

VILLAGE OF GENOA CITY
WALWORTH CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05000685MD


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 four and one-half years as a maintenance worker for the employer, a municipality. His last day of work was January 10, 2005 (week 3).

The issue is whether the separation was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

In March of 2001, the employee's probationary period was extended six months for using seven sick days in six months of employment, and for reporting to work one day with the smell of alcohol on his breath. The employee was not administered an alcohol test that day or sent home from work.

In May of 2001, the employee was suspended for one day without pay for an unexcused absence. As a part of this discipline, the employee was issued a step 3 warning which, according to the employer's policies, was the final step in the employer's progressive discipline process before termination.

On January 18, 2002, the employee was suspended for two days without pay for an unexcused absence with late notice.

On January 7, 2005, the employee phoned his supervisor five minutes after the start of his scheduled shift to report that he would not be coming in to work that day because his "wife had gone crazy." His supervisor told him to do what he had to do. The supervisor formed the belief, based on a conversation he had later that day with one of the employee's co-workers, who did not testify at the hearing, that the employee had gone out drinking the night before and did not report to work on January 7 because he had a hangover. The employee admits that he had an upset stomach on January 7 but denies that he had a hangover.

Based on this incident, the employer decided to require that the employee enter into a last chance agreement in order to remain employed. This last chance agreement (exhibit #7) stated as follows, as relevant here:

...4. Your alcohol use must cease and you must report to work free from any substance which can affect the performance of your job or threaten the safety of the community.

5. You will not have another instance of abuse of alcohol on the job.

...10. ...Any violation of any terms of this agreement will constitute just cause for your termination and will result in immediate termination...

When this last chance agreement was presented to the employee on January 10, he told his supervisor that he had been advised by his union representative not to sign any document until his representative had a chance to review it. The union representative, after his review, advised the employee not to sign the agreement because the employee had never engaged in the "abuse of alcohol on the job," and had never reported to work under the influence of alcohol. The employee refused to sign the last chance agreement and his employment relationship with the employer ended as a result.

The first question is whether the separation was a quit or a discharge.

The commission has generally viewed an employee's refusal to sign a last chance agreement, knowing the refusal will end the employment relationship, as a quit. See, Lewis v. Johnson Controls Battery Group, Inc., UI Hearing No. 94606558 (LIRC March 14, 1995); Burton v. Signicast Corp., UI Hearing No. 00603251MW (LIRC Oct. 23, 2000). Here, as in Lewis and Burton, the employee had an opportunity to maintain the employment relationship by signing the last chance agreement but failed to do so. As a result, the separation was a quit.

The next question then is whether this quitting satisfied any exception to the quit disqualification.

The record supports a conclusion that the employee's refusal to sign the last chance agreement was reasonably justified, and his quitting, as a result, was with good cause attributable to the employer.

The last chance agreement would have required the employee to cease using alcohol, a legal substance. Although the employer certainly had a right and a responsibility to regulate any use of alcohol by the employee which would affect the performance of his work responsibilities, the terms of the last chance agreement were not narrowly tailored to accomplish that purpose.

The last chance agreement also clearly implies, in requiring that the employee "not have another instance of abuse of alcohol on the job," that he has already been involved in such an instance, and that such involvement reasonably justifies the requirement that he enter into the agreement in order to maintain his employment. However, the employer failed to show that the employee ever violated its alcohol policy (exhibit #11), which prohibits the "possession or use of, or being under the influence of," alcohol on employer time or property, or otherwise engaged in the use or abuse of alcohol in connection with his employment.

Finally, the employer implies that the employee had an unsatisfactory attendance record, and that the primary underlying cause was his abuse of alcohol. However, regardless of the reason for the employee's absence on January 7, 2005, the fact is that the employee had not had a documented attendance deficiency for a period of three years prior to that date. This attendance record would certainly not reasonably justify requiring the employee to enter into a last chance agreement.

In contrast with the holdings in Burton, supra.; Beshears v. Int'l Cabling Systems, UI Hearing No. 00004185MD (LIRC Dec. 18, 2000); and Smith v. The Prudential Benrud Realty, UI Hearing No. 02202470EC (LIRC May 7, 2003), where the commission concluded that good cause attributable to the employer had not been proved because the employer had a legitimate basis for requiring the employee to commit to improving aspects of his conduct/performance, such a legitimate basis has not been demonstrated here.

The commission therefore finds that, in week 3 of 2005, the employee was not discharged by the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that, in week 3 of 2005, the employee voluntarily terminated employment with the employer, but did so with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 3 of 2005, if otherwise qualified.

Dated and mailed May 31, 2005
doyleri . urr : 115 : 2  VL 1007  VL 1014

/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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