ROBIN M DOMASK, Employee

MIDWEST AIRLINES 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 18 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.

Dated and mailed December 28, 2006
domasro . usd : 150 : 1   MC 652.1   MC 653.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employee, via her attorney, petitioned the appeal tribunal decision finding that her discharge was for misconduct connected with her employment. The petitioner conceded that the employee's discharge was due to a blood alcohol level in excess of that prescribed by the employer's policy and that her blood alcohol level was caused by off-duty consumption of alcohol. (1)   However, the petitioner argued that the employee should be eligible for unemployment benefits because she was not specifically aware of the employer's policy, the policy did not have a reasonable relationship to the employer's business interests, the employee enjoyed a long tenured employment relationship with the employer and that the employer failed to establish that the employee's work on that day failed to meet the employer's expectations.

With respect to the policy, the employee testified that she received a copy of the employer's policies and procedures upon hire. She further admitted that those policies contained a drug and alcohol policy, allowed for testing and warning that violation of the policy could be grounds for dismissal. When the employer issued a revised policy two years prior to the discharge, it notified all workers via electronic mail and posted the policy on the employer's Intranet. While the employee denied any knowledge of the revision or the specific alcohol level resulting in discipline under the revised policy, her decision to report to work in a condition which exhibited impairment, namely the odor of alcohol and loud and animated behavior, when combined with her breath alcohol level, clearly violated the standards the employer had a right to expect. The petitioner's alcohol level was .065 percent almost three hours after reporting to work. Utilizing the DOT blood alcohol chart and the fact that an individual metabolizes alcohol at the rate of .015 percent per hour, the employee reported to work over the legal limit for impairment for purposes of driving. (2)   While the petitioner contended at the hearing that the employee's blood alcohol level was due in part due to her consumption of "three gulps" of cough syrup between 9:30 and 9:40 a.m., the commission agrees with the administrative law judge's assessment that the employee's alcohol level was due to her consumption of a substantial amount of alcohol the prior evening, which also resulted in her tardiness in reporting to work.

Next, the employee's tardiness accompanied with the odor of alcohol and a louder and more animated behavior was not within the employer's expectations and created reasonable suspicion for the alcohol test. While the commission agrees with the petitioner that the employer did not follow its policy of immediately removing the worker from the performance of her duties and to make sure she was attended at all times, the commission does not find that this negates the employee's intentional disregard of the standards of conduct that the employer had a right to expect. In a similar vein, the employee's lengthy tenure does not mitigate a misconduct finding under Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941).

For these reasons, the appeal tribunal decision is affirmed.

cc: Attorney Daniel L. Shneidman Midwest Airlines, Inc. (Oak Creek, Wisconsin)

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(1)( Back ) See Petitioner's Brief, dated November 21, 2006, page 5.

(2)( Back ) In Rowe v Walker Stainless Equipment Co. Inc., UI Dec. Hearing No. 03001017BO (LIRC December 19, 2003), the commission considered it appropriate to make inferences related to the Wisconsin Department of Transportation's Blood Alcohol Chart. In particular, in Rowe, the commission, stated

The BAC Chart is reproduced in full in a footnote in a published court decision. State v. Hinz, 121 Wis. 2d 282, n. 2, 284-85, 360 N.W.2d 56 (Ct. App. 1984). It has been held that judicial notice may be taken of the BAC chart, even when it has not been placed into the record at trial. State v. Hinz, supra, 121 Wis. 2d at 290. See also, State v. Konkol, 2002 WI App 174, ¶ 8, 256 Wis. 2d 725, 648 N.W.2d 300 ("we have previously ruled [the blood alcohol chart] is so accurate that judicial notice may be taken of its trustworthiness"). As the Court of Appeals pointed out in Hinz, the BAC chart is simple to read and use. The Court also expressly held, that expert testimony is not necessary to translate the significance of the chart, as applied to an individual, to the trier of fact. State v. Hinz, 121 Wis. 2d at 286. (1) [footnote omitted].

As the BAC Chart reflects, alcohol is metabolized by the body at a rate which causes a reduction of BAC of approximately 0.015 per hour. This makes it possible to carry out a "retrograde" analysis, using an alcohol level measured at one time, to determine what the level would have been at an earlier time. Such retrograde alcohol level analysis has been relied upon in UI decisions. See, Duerr v. Village of Greendale (LIRC, Nov. 25, 1997), Duerr v. LIRC and Village of Greendalee (Dane Co. Cir. Ct., Aug. 17, 1998), Hammen v. Warehouse Specialists Inc. (LIRC, Jan. 12, 1999).

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