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


LLOYD M BLANKE, Employe

WEYERHAEUSER CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98402329MN


On August 26, 1998, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 33 of 1998 the employe was discharged for misconduct connected with his employment. As a result, benefits were denied. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On December 17, 1998, the appeal tribunal issued a decision which affirmed the initial determination. The employe filed a timely petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a manufacturer of corrugated containers, for 30 years as a press operator. His last day of work was August 10, 1998 (week 33).

In March of 1997 the employe took a short-term disability leave in order to undergo treatment for alcoholism. When the employe returned to work, the employer required him to sign a "return-to-work contract," in which the employe agreed, among other things, to undergo continued treatment, to subject himself to random alcohol screening by the employer, and to abstain from all consumption of alcohol.

In August of 1997 the employe was given a random breathalyzer test by the employer. As a result of the breathalyzer test, which the employer alleges indicated a blood alcohol level of .005, the employer extended the employe's return-to-work agreement for another year and imposed additional requirements on him. The employe was advised that if he did not live up to the terms of the agreement he could be discharged.

On August 10, 1998, the employe was subjected to another random breathalyzer test by the employer, which again purportedly revealed the presence of some alcohol in his system. The employe acknowledged that he had consumed alcohol on the morning of August 9, following a birthday party for his grandson. Later that day the employe was notified that the employer was discharging him for violation of the return-to-work agreement.

The question to decide is whether the employe's discharge was for misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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 employe was discharged for violating a return-to-work agreement which prohibited him from consuming any alcohol, whether on or off duty. While an employer does have a right to regulate off-duty conduct, in order for the violation of a work rule relating to off-duty conduct to constitute misconduct, the rule must bear a reasonable relationship to the employer's interests. Gregory v. Anderson, 14 Wis. 2d 130, 137, 109 N.W.2d 675 (1961). In this case, the employer failed to demonstrate any rational work-related reason for the regulation of the employe's off-duty use of alcohol, a lawful substance. (1)  The employer's witness acknowledged that the employe's work was satisfactory and that he did not have an attendance problem, and testified that the employer drafted the agreement because it wanted to "support" the employe. (2)    However, the discharge of a 30-year employe with satisfactory work performance based upon his off-duty consumption of a lawful substance seems more punitive than supportive, and in the absence of any reason to believe that the employe's off-duty conduct was related to the performance of his job, the commission sees no basis to conclude that it amounted to misconduct connected with his employment.

The commission, therefore, finds that in week 33 of 1998 the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits as of week 33 of 1998, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed: February 18, 1999
blankll.urr : 164 : 1 MC 651.1   MC 651.2   MC 651.5  MC 692.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not consult with the administrative law judge about witness credibility. The commission's reversal does not depend upon an assessment of witness credibility, but is as a matter of law.

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe was fired because he violated the return to work agreement that he signed with the employer. The employe is an admitted alcoholic who had been off work on a short term disability for 4-5 months for the treatment of alcohol and drug abuse. The employer had a drug and alcohol policy. The work rules prohibit drinking on the job and reporting to work under the influence. The rules do not prohibit drinking alcohol outside of work.

When the employe was ready to return to work, the employer wanted to support the employe and so they talked to one of his counselors. They set up a contract between the employe and the employer which provided among other things that he would comply with all requirements and recommendations of the treatment program including "I agree to abstain from consuming alcohol and using control substances(drugs) except in accordance with a valid doctor's prescription. I agree to notify my supervisor or manager of any such prescriptions." The contract was to remain in effect for at least one year when it would be reviewed with the possibility of modification or elimination.

The majority sees no relationship between the back to work agreement that the employer and employe signed and the employe's work. The employer has an interest in having its workers available for work and able to work safely when they report to work. While the employer did not present a case against the employe for attendance problems it is apparent from the record that he was not available to work for the employer while he was off work for 4-5 months on disability for alcohol treatment. Second, the employe reported to work twice when he had consumed enough alcohol to register on the breathalyzer test. The second time the amount of alcohol was about one-half the legal limit for driving. While I have some misgivings about using a breathalyzer test as an accurate measure of intoxication, it does not make any difference in this case because the employe admitted finishing a bottle of alcohol after his grandson's birthday party. Also in this case the employer was measuring any alcohol because the employe had agreed to refrain from drinking any alcohol as part of his return to work and as part of his treatment for alcoholism. The employe as well as the employer had a stake in the employe's refraining from consuming alcohol.

The majority cites the section of the Fair Employment Act dealing with the use of lawful products and says that the employer failed to demonstrate that the employer fell within any exception to the law. I believe alcohol impairs an alcoholic's ability to undertake the job-related responsibilities because unlike a non-alcoholic the alcoholic is frequently unable to control the amount of alcohol they consume. This is a safety factor for the employer and an availability problem when the employe needs to seek treatment for extended periods of time. This employer does not have a blanket rule that employes may not consume alcoholic beverages. It has signed agreements with recovering alcoholics to prevent any alcohol consumption in an attempt to help the employe refrain from drinking and to accomplish the goals of alcohol treatment. I would also note that the major reason for the passage of this section of the statutes was the concern that employer would control off duty use of tobacco products in an attempt to hold down insurance costs.

I am also concerned that the employer had no notice that the majority intended to require the employer to defend itself against discrimination under the use of lawful substances. The notice of hearing mentions issues of misconduct, quit, able and available, suspension of work because the person was unable or unavailable for work.

There are public policy reasons to recognize the return to work agreement as connected to the employe's work. The employer in this case obviously worked with the employe over the years. It allowed the employe to get treatment and return to work. Certainly we do not want to discourage an employer from encouraging alcoholics to seek treatment when necessary.

For these reasons, I would affirm the administrative law judge's finding that the employe was discharged for misconduct connected with his employment.

Pamela I. Anderson, Commissioner

cc: ATTORNEY PATRICK A DEWANE JR
DEWANE DEWANE KUMMER LAMBERT & FOX LLP


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


Footnotes:

(1)( Back ) The Wisconsin Fair Employment Act makes it unlawful for an employer to take adverse action against an employe because of his use of a lawful product off the employer's premises during nonworking hours, unless the off-duty use of the lawful product falls within certain enumerated exceptions. One such exception applies where the use of lawful products impairs the individual's ability to undertake adequately the job-related responsibilities of that individual's employment. See Wis. Stat. §§ 111.321, 111.322 and 111.35(2)(a).

(2)( Back ) The dissenting commissioner identifies several work-related reasons for regulating the employe's off-duty consumption of alcohol which, had they been raised by the employer, might have established a reasonable relationship between the employe's off-duty conduct and his job. The majority, however, has limited its decision to the evidence in the record before it.