COLIN W PRESSNELL, Employee

DUFRANE MOVING & STORAGE 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 eligible for benefits, if otherwise qualified.

Dated and mailed May 7, 2007
pressco . usd : 164 : 1  MC 653.1

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

In its petition for commission review the employer argues that when the employee reported to work smelling of alcohol its only recourse was to send him home or call the state patrol and allow them to issue a citation for operating while intoxicated. The employer contends that its policy states no employee may have "any detected presence of alcohol" while on duty and provides that non-compliance will result in discipline "up to and including discharge." The employer's arguments fail. The employer failed to demonstrate that the employee engaged in any conduct prohibited under its policy. While the employer established that the employee reported for work smelling of alcohol, it did not perform any alcohol test and did not establish that there was a "detected presence of alcohol" in the employee's system, as prohibited under its policy. The smell of alcohol on an employee's breath is not enough to warrant a conclusion that he was under the influence of alcohol, i.e. actually impaired. Popp v. Metro Milwaukee Auto Auction (LIRC, July 8, 2004). Further, while the employee admitted he had been to a bar, he did not indicate whether this occurred within four hours of reporting for work, as prohibited by the employer's policy.

The commission does not question the employer's decision to send home a driver who reports to work smelling of alcohol, and it recognizes that the policy provides for doing so. However, a few days after being sent home the employee in this case was discharged. Although the employer suggests that the disciplinary consequences of violating its policy are deliberately ambiguous, so as to afford it flexibility, in order for misconduct to be established as a result of violating a policy applying to off-duty consumption of alcohol, the policy must specify the consequences of a violation. See Popp; Alexander v. Unified Solutions, Inc. (LIRC, July 10, 2003). The commission agrees with the appeal tribunal that, even assuming the employee engaged in conduct that was in violation of the employer's policy, the policy did not put him on notice that his actions would cost him his job.

In the petition the employer also argues that the employee's work was less than adequate and that he had two unreported accidents and a traffic violation. The employer contends that the employee has taken no responsibility for his actions. Again, this argument fails. While the discharge notice does refer to performance problems, no evidence was presented on these issues at the hearing, and the employer specifically testified that the employee would not have been discharged but for the fact that he reported to work smelling of alcohol.

The employer may have made a valid business decision to discharge the employee. However, for purposes of determining UI eligibility, the commission agrees with the appeal tribunal that the employer failed in its burden of demonstrating disqualifying misconduct. Accordingly, the appeal tribunal decision is affirmed.

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uploaded 2007/05/15