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

DAVID D DOCKHAM, Employee

COMPASS GROUP HE SERVICES LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05003195LX


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 13 years, most recently as the associate director of dining services for the food service company at the University of Wisconsin-La Crosse. His last day of work was June 16, 2005 (week 25).

The employee was discharged for drinking a glass of wine while on duty. The wine was served at a formal dinner the same night and the employee testified that he was testing its quality. The employer learned of this when the employee's Huber privileges were revoked for violation of the alcohol restriction condition of his work release. The employer did not discharge the employee for his subsequent one month absence from work. The employer permitted the employee to use vacation time to cover his absence. When the employee returned to work, the employer discharged him for violation of its zero tolerance alcohol policy. The employee was unaware of the employer's policy.

The issue to be decided is whether the employee was discharged for misconduct connected with his employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute."

The employer contended that the employee knowingly violated its clear zero tolerance alcohol policy. The employer offered no written policy to support its position that the employee was on notice that he was not to drink on duty. The employee denied being aware of such a policy and testified that supervisors drank during work hours on some occasions. The employer conceded that beverage quality control was within the employee's duties and this included tasting. However, the employer maintained that tasting should not have included a full glass on a non-product tasting occasion. The employee's conduct also violated his Huber restriction against drinking alcohol which caused him to lose his Huber privileges and miss a month of work. However the employer denied that the employee's extended absence was a reason for the discharge.

The commission concludes that the employee was not on notice that drinking a single glass of wine that would later be served at a formal dinner would result in the loss of his employment. Given this record, his conduct falls short of a deliberate and substantial disregard of the employer's interests. In these ambiguous circumstances where some alcohol consumption is anticipated, an employer's zero tolerance policy must be explicit and known to the employee in advance.

The commission therefore finds that in week 25 of 2005, the employee was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 25 of 2005 if he is otherwise qualified.

Dated and mailed December 21, 2005
dockhda . urr : 178 : 1   MC 651.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission discussed witness demeanor and credibility with the ALJ prior to deciding to reverse. The ALJ did not credit the employee's assertion that he was unaware of the employer's zero tolerance alcohol policy or that he was not to drink on duty. The commission reaches a different result. The duties of the employee's position make this a more difficult case than a routine alcohol case. The employer admitted that the employee had tasting responsibilities. The employer did not prove that the employee was intoxicated on the job. The employee testified that he acted within the scope of his duties. While the consequences of his not limiting himself to a sip from the bottle resulted in his loss of Huber privileges and a long absence from work, the employer did not discharge him for his absence. The employee erred in drinking more than a taste of wine, but that error fell short of a deliberate and substantial disregard of the employer's interests.

cc:
Chantwells Food Service
Stephen Arndt


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