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


LAURIE M HAMMEN, Employe

WAREHOUSE SPECIALISTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98401753AP


On May 12, 1998, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with her employment. The employer filed a timely request for hearing, and hearing was held on July 28, 1998 in Appleton, Wisconsin before a department administrative law judge. On August 5, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for review of the adverse appeal tribunal decision and, by October 30, 1998 order, the commission remanded the matter for further hearing, which was held in Appleton, Wisconsin on November 19, 1998. The matter is again before the commission, and now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case worked approximately ten years for the employer, a warehouse facility, and specifically as a supervisor for her last two years of employment. The employer discharged her on April 23, 1998 (week 17), for having a blood alcohol level of .065 at 8:16 a.m. that morning. The commission concludes that the discharge was for misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

At approximately 7:30 a.m. on the morning of April 23, one of the employer's managers told the employe that he smelled alcohol on her breath. The employe replied that she had had a few drinks the previous afternoon. Pursuant to the employer's work rules, the employer sent the employe to a local hospital for testing for controlled substances. At 8:16 a.m., the employe had a blood alcohol level of .065. At 8:33 a.m., she had a blood alcohol content of .058. Later that day, the employer discharged her for violation of the employer's drug free/alcohol free policy. That policy strictly prohibits being under the influence of alcoholic beverages during working time. The policy defines "under the influence" as including having any detectable level, in excess of a trace, of alcohol, drugs or controlled substances in the body. The policy also provides for "for-cause testing" whenever an employe's observed behavior raises a question based upon identifiable symptoms of an employe's fitness to perform his or her job safely. The list of such symptoms in the employer's policy includes the smell of alcohol on one's breath.

The employe's defense was that she had approximately four alcoholic beverages on April 22, the last one at 6 p.m. The employe was not feeling well and took three doses of Nyquil, one at 2 a.m. on April 23, a second at 5:30 a.m., and a third at 7 a.m. (an hour into the employe's shift). Based upon the medical evidence in the record, the commission must reject this scenario. The employe had a blood alcohol content of .065 percent at 8:15 on the morning of April 23. According to this evidence, the employe would have had a level of .076 to .078 45 minutes earlier, around 7:30 a.m. This level could not have been due either to the alcohol the employe consumed the previous afternoon and evening or to the doses of Nyquil the employe asserted she took throughout the morning of April 23. The only conclusion the evidence allows is that the employe came to work intoxicated.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. Reporting to work intoxicated easily meets this standard especially where, as here, the employer has a specific policy prohibiting such conduct. The commission therefore finds that, in week 17 of 1998, the employer discharged the employe for misconduct connected with the employe's work, within the meaning of Wis. Stat. § 108.04 (5).

The commission also finds that the employe received benefits in the amount of $290 per week for each of weeks 18 through 43 of 1998, totaling $7,540, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04 (13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22 (8)(c)2.


DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 17 of 1998, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She must repay $7,540 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: January 12, 1999
hammela.urr : 105 : 3  MC 651.2   MC 652.5  MC 653.1 

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge, before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility resolution from that made by the administrative law judge. Rather, the commission's result is due to the evidence from the remand hearing, evidence not available to the administrative law judge when she issued her August 5, 1998 decision.


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