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

DAN W WILKES, Employee

VITRAN EXPRESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08004305JV


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 18 months as a sales representative and account manager for the employer, a freight carrier. He was discharged on August 26, 2008 (week 35).

The issue to be decided is whether the employee was discharged for 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 allows employees to drive company cars both on work-related missions and for personal purposes. When the employee applied for permission to use a company car, he stated he had received a copy of the employer's Policy for Company Provided Automobiles and agreed to abide by the policy's rules. In relevant part the policy stated as follows:

Associates assigned a Company automobile are required to operate the automobile in compliance with all applicable state and local laws and regulations, and in a safe and courteous manner at all times. . . . Citations while driving a Company automobile for careless or reckless driving or for driving while intoxicated or under the influence of alcohol or drugs must be reported by the associate verbally and in writing to the associate's supervisor within 48 hours of the occurrence. The Company views all traffic citations with concern, but considers those mentioned above with utmost seriousness. A poor or deteriorating driving record will result in appropriate disciplinary action by the Company, up to and including revocation of the automobile assignment or employment termination, if warranted.

Another policy that is found only on the employer's intranet system regarding the use of alcohol and drugs by "non-drivers" (those not having a CDL) states in relevant part as follows:

PROHIBITED ITEMS

Our non-driver associates may not manufacture, use, possess, sell, transfer or distribute illegal controlled substances or alcohol while working on our premises or property or while using or operating vehicles, equipment or machinery we own.

"Possess" means to have either in or on the associate's person, personal effects, motor vehicle or areas substantially entrusted to the control of the associate.

. . .

The reasonable and moderated use of alcohol at company sponsored social events or while entertaining company customers while on company business is an exception to this policy.

A non-driver associate may be given a reasonable suspicion test if there is a reasonable suspicion that the associate is "under the influence of drugs or alcohol while at work or off duty."

At the bottom of this policy the following statement is made:

"Positive test results will result in termination of employment."

The employee was or should have been aware of these policies.

On August 16, 2008, the employee went to a dance in Watertown and drank at least two beers. He was not on duty at the time. As he left the dance in his company car, he had an accident with another car at an intersection when the traffic light changed to red when he was in the intersection. Although there were no injuries, his company car was totaled out. A policeman called to the scene asked the employee if he had been drinking, to which the employee replied that he had. The police officer then took the employee to the police station where he was given a breathalyzer test. Ultimately the officer told the employee that he had tested positive for alcohol and told him he had to find a ride home. The employee was issued an OWI citation for violating a municipal ordinance adopting section 346.63(1)(a)(1) of the state statutes. The employee voluntarily checked himself into an alcohol rehabilitation program the next day. The employee later pled no contest to the ticket, paid a $650 fine, and had to attend an alcohol assessment. The employee was discharged for having a preventable accident while under the influence of alcohol.

The employee argues that his discharge was not for misconduct connected with his work. The commission agrees.

The employer failed to present any evidence at the hearing regarding the results of the employee's breathalyzer test. The only evidence regarding what happened on the night of August 16, came from the employee, who indicated that he drank two beers before leaving the dance and having the accident. The commission has held that a no contest plea is not an admission of guilt. Willert v. Mid States Express Inc, UI Dec. No. 08200567EC, (LIRC June 26, 2008). The commission cannot infer, from the fact that the employee had two beers, that he was over the limit or that he was driving while intoxicated. While the employer may have made a valid business decision when it discharged the employee, the employer failed to establish that the employee's discharge was for misconduct connected with his work.

The commission therefore finds that in week 35 of 2008, 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).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 35 of 2008, if otherwise qualified.

Dated and mailed January 23, 2009
wilkeda . urr : 145 : 1 MC 650   MC 652.4

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission did not reverse the ALJ's decision based on a different assessment of witness credibility but rather, the commission reversed the ALJ's decision as a matter of law.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2008/02/03


Footnotes:

(1)( Back ) Wis. Stat. 346.63 Operating under influence of intoxicant for other drugs (1) No person may drive or operate a motor vehicle while: (a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or . . .