ROBERT C PETRY, Employee

TYSON PREPARED FOODS 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 makes the following:

The employee worked for about two years as a production worker for the employer, a food processing business. His last day of work was October 28, 2005 (week 44), when the employer discharged him from employment. His weekly benefit rate was calculated at $314 for the unemployment benefit claim he started the following week.

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's work rules, provided to the employee at the time of hire, prohibit workers from using illegal drugs on or off premises, or reporting to work under the influence of alcohol. Those rules allow for reasonable suspicion, post-accident and random testing, and provide that a worker who tests positive may be subject to termination.

In 2004, the employee tested positive for marijuana use. At that time, the employer gave him the option of termination or rehabilitation. The employee chose rehabilitation. Upon his return to work on November 8, 2004, the employer told him he would be subject to additional testing for 12 months. After that period ended, he remained subject to the random and reasonable suspicion testing contemplated under the employer's rules.

Prior to the employee's shift on October 28, 2005, he consumed several beers. When he reported for work, a supervisor detected alcohol on his breath and sent him for a reasonable suspicion test. At the testing site, the initial breathalyzer results were 0.048 and the confirmatory results were 0.040. The testing facility reported those results to the employer. The employer then discharged him for having a second positive test under its policies.

The employer argued that it discharged the employee for misconduct connected with his work. The commission disagrees. The employee did not realize that he could be subject to the drug and alcohol policy if his alcohol test was higher than .04. The policy states that .04 is a detection level for alcohol, not that this is considered a positive drug test result. Further, the policy provides that a worker who tests positive for drugs or alcohol will be given the option of termination, self-rehabilitation and professional rehabilitation. The rehabilitation options suggest that a positive test result for the substance the worker initially tested positive for would result in discharge, not that a positive test for another substance would result in discharge. The employee testified that he had a few beers while playing basketball prior to reporting to work on the third shift. He was going to drive to work and knew he should not drink much. While the employee may have used poor judgment in having a few beers prior to reporting to work, his actions did not demonstrate such a willful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 44 of 2005, the employee was discharged, but that his discharge was not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed May 25, 2006
petryro2 . urr : 145 : 4  MC 651.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ noted that the employee had a prior drug and alcohol policy violation and his conduct in reporting for work shortly after drinking four or five beers demonstrated a disregard of the employer's interests. The ALJ pointed out that it was the employee's responsibility to be careful and that he had no good reason for drinking beer shortly before working. The commission found the employee credible when he testified that he did not think he drank enough beer to exceed the employer's alcohol limit and that he was not aware he could be discharged for testing positive for alcohol, even if he had exceeded the limit.

cc: Tyson Foods

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uploaded 2006/06/05