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

GARY W ENGEN, Employee

AURORA HEALTH CARE OF SOUTHERN LAKES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06603816RC


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 12 years as an environmental services supervisor for the employer, an operator of medical facilities. His last day of work was April 20, 2006, and he was discharged on April 26, 2006 (week 17).

The issue to be decided is whether the employee's discharge was for misconduct connected with the employee's 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' within the meaning of the statute."

The employer has a drug-free workplace policy. The handbook informs workers that the use of drugs or alcohol while working will subject one to termination. The policy is a no tolerance policy, and does not allow for any level of alcohol in the system.

The employee, as of March 8, 2006, was on a third step discipline and was given a mandatory referral to the Employee Assistance Program (EAP).

On April 20, 2006, the employer received a report indicating that a supervisor had smelled alcohol on the employee's breath. The manager of human resources called the security officer on duty to have the employee escorted to the manager's office immediately so the employer could conduct a breathalyzer exam. At about 3:30 p.m. the security officer met with the employee at the loading dock and told the employee that the employee needed to go with the officer to human resources. The employee asked why and the security officer informed the employee that he was to go to human resources because he needed to take a breathalyzer test. They walked through the employee lot, and the employee placed some items in his car, and the security officer thought the employee was going to get into his car. The security officer informed the employee that human resources at that location wanted to see the employee right now, and that the security officer did not mean that the employee needed to report to human resources at another location. The employee asked "Well, do I look like I am falling down drunk?" The officer told the employee he needed to be tested for that to be determined. The employee said he was on his way to an EAP meeting and was afraid he would get fired if he did not attend. The officer told him that attendance at EAP was at the direction of HR and that the HR department could override his appointment and takes care of it, since the HR department had already changed his appointment once. The officer informed the employee that he was to go to HR immediately and get the matter cleared up. At around 3:40 p.m. the employee disregarded the security officer's instruction and got in his car and left.

The manager then paged the employee at about 3:50 and told him to return to the facility and to call the manager immediately. The employee returned the manager's phone call at 4:10 p.m. The manager instructed the employee to return immediately. The employee said he had a 5:00 p.m. EAP appointment. The manager asked him why he had left so early for a 5:00 appointment and informed him to return as the manager would clear him from his EAP appointment. The employee returned to the facility at about 4:50 p.m. and took a breathalyzer at about 5:00 p.m., blowing a 0.022. He took a confirmatory test at 5:15 p.m. blowing a 0.015.

The employee informed the employer that the breathalyzer test was positive because on his way to the EAP meeting he stopped at his friend's house for a few minutes, and drank a glass of champagne. The employee testified at the hearing, that he actually stopped at the Hitching Post Tavern. The employee indicated that at the time he left the employer's premises his shift had already ended. The employee denied consuming any other alcohol that day, although he indicated that he used prescription mouthwash that contained alcohol and he suspected that this might have been why his co-worker reported that the employee smelled like alcohol.

The employer argued that the employee's discharge was for misconduct connected with his work. The commission agrees. The employee left the employer's premises at about 3:40 p.m. for a 5:00 p.m. appointment that was about seven minutes away. The employee left without asking the manager, who had requested that he immediately report for an alcohol test. The employee did not respond to the employer's 3:50 p.m. page for about twenty minutes. At 4:10 p.m. the employee was instructed to return immediately, yet he returned forty minutes later. The employee tested positive for a low level of alcohol. The employee explained that he tested positive because he stopped on his way to the EAP meeting, to have a glass of champagne. The employee gave inconsistent testimony with respect to the location of the friend's party. The commission does not find the employee's testimony, that he went to the party and had a glass of champagne there, to be credible. The facts in the record lead to the inference that the employee had been drinking, and that he left the workplace, rather than report for his test because he wanted to avoid taking the test. While he ultimately returned to work, the result of his failure to answer his page immediately and the fact that it took him forty minutes to return to the employer had the effect of significantly delaying his alcohol test. The employee informed the employer that he left his friend's house at about 4:00 p.m. Thus it is very unlikely that the employee would have had time to get to his friend's house, drop off a present and drink a glass of champagne after leaving work at 3:40 p.m. The fact that the employee still had alcohol in his system at the end of his shift leads to the conclusion that the employee was either drinking at work, or reported to work with such a high level of alcohol in his system that he still tested positive for alcohol at the end of his shift. The employee's actions, in consuming alcohol at work or shortly before he was to be working, together with his refusal to immediately report for his alcohol test, as instructed by the employer, as well as his lying to the employer about the reason for alcohol in his system, demonstrated such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 17 of 2006, the employee was discharged, and that his discharge was for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for each of weeks 17 through 19 and 26 through 37 of 2006, amounting to a total of $5,115.00; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 17 of 2006, 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 $5,115.00 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700) issued on April 26, 2006, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

Dated and mailed September 29, 2006
engenga . urr : 145 : 1 MC 652.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ indicated he did not have any firm credibility impressions, one way or the other, from the employee's demeanor, although the ALJ did not find the employee's story tremendously credible. The commission agrees with the ALJ's credibility assessment, but reverses the ALJ's decision because it reached a different conclusion when applying the law to the facts in the record.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: Memorial Hospital of Burlington


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