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

JAMES C MOONEY, Employee

THE DE LONG CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003193JV


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 23 years as a first shift driver and plant worker for the employer, a grain and fertilizer distribution business. His last day of work was May 10, 2007, when he was suspended, and he was discharged on May 21, 2007 (week 21). He filed an additional claim for unemployment benefits on July 2, 2007 (week 27), and filed weekly claims for that week and each week thereafter.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constituted 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' within the meaning of the statute."

The employer had a written drug and alcohol policy designed to ensure a drug and alcohol-free transportation and work environment and to reduce drug and alcohol-related accidents and damage to property. The policy prohibited conduct including being under the influence of illegal drugs; being under the influence of alcohol at any time while driving or performing any other safety-sensitive function; or testing positive for drugs or alcohol. The policy required reasonable suspicion testing for drugs and alcohol. Prescribed penalties under the policy included suspension without pay for 30 days for the first offense alcohol test result between .04 and .079; discharge for first offense alcohol test result of .08 and above; and discharge for confirmed positive drug test. The employee was aware of the policy.

On May 10, 2007, the employee reported to work. His shift began at about 6:00 a.m. and his work that morning included loading liquid nitrogen into a truck for spreading and the operation of a forklift machine. Due to concerns about the employee's condition reported by a co-worker, the vice-president of the business traveled to the plant to talk with the employee. He arrived at the plant at about 9:30 a.m. The vice-president noted that the employee's breath smelled of alcohol and asked the employee to submit to alcohol and drug testing. The employee agreed and the vice-president accompanied the employee to the testing. The first breathalyzer test result was .081 at 10:11 a.m., and the second test result was .070 at 10:27 a.m. The employee did not dispute the results, acknowledging that he was under the influence of alcohol. The employee also provided a urine sample for drug testing, and the result of that test was reported as "invalid" with "possible oxidant activity."

The vice-president spoke with the medical review officer about the drug test results and understood from the officer that the specimen was contaminated with some substance, possibly something from the employee's hands that was transferred to the sample. He noted that since the employee worked around fertilizers, it could have been something, including nitrates that fell into the urine sample. The employee agreed, saying that he had been using the forklift that morning, running liquid nitrogen to the top of the trucks for application to the field, and since the urine testing procedure did not require him washing his hands, he may have transferred some of that material to the sample. He denied illegal drug use.

In a meeting on May 21, 2007, the employer discharged the employee for an alcohol test result of .07 and a positive result of an oxidant.

The employee argued that his discharge was not for misconduct connected with his employment because he did not test positive for illegal drugs and his breath alcohol test was .070, at a level that justified a suspension, but not termination. Given the particular facts of this case, the commission agrees.

The employer's vice president testified at the hearing that he relied upon both the alcohol and drug test results when he discharged the employee. The vice-president was of the impression that the oxidant was added after the test, and perhaps that the employee had purposely added the oxidant. The vice president relied upon the second, lower alcohol test when he imposed discipline. The commission notes that the employee had worked for this employer for many years, apparently without any prior discipline for failing an alcohol test. The employer presented insufficient evidence to establish that the employee tested positive for an illegal drug. Since the employer's reading of the alcohol policy was that the employer would go by the second alcohol, or confirmatory test, the employee would normally have received a suspension. The medical review officer did not testify and both the employer's witness and the employee agreed that there may have been contamination of the employee's drug sample caused by fertilizer material the employee had been handling prior to the test. While the commission does not condone the employee's reporting to work with alcohol in his system, under the employer's policy the employee should have received a 30-day suspension. In fact, according to his discharge paperwork, the employer intended to levy a "double" punishment, with the 30-day suspension for alcohol and actually discharged him for a positive oxidant reading.

Under the circumstances, the employer failed to establish that the employee's actions, for which he was discharged, evinced 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 21 of 2007, the employee was discharged, but that his discharge was 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 21 of 2007, if otherwise qualified.

Dated and mailed January 4, 2008
mooneja . urr : 145 : 1  MC 652.5

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ's decision based on a different impression of witness credibility. The commission reverses the ALJ's decision because it reached a different legal conclusion when it applied the law to the facts found by the ALJ.


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