STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

JOE A TORRES JR, Employee

AIM TRANSFER & STORAGE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 13601016MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. The employee filed a timely petition for review.

The commission has considered the employee's 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 five years, most recently as a shop assistant, for the employer, a transportation company. His last day of work was January 14, 2013 (week 3), when he was discharged.

The issue before the commission is whether the employee was discharged by the employer for misconduct connected with his employment.

The employer has a strict policy concerning alcohol consumption, because it is engaged in the transportation industry and its workers use heavy commercial machinery that has the potential to cause serious injury. If a worker exhibits any signs of impairment, the supervisor is required to document his observations and take the worker to a test collection facility for drug or alcohol screening based upon reasonable suspicion. A worker reporting to work with any measurable quantity of alcohol in his or her bloodstream is subject to disciplinary action, including discharge. The employee received a copy of the employer's policy.

In August 2012, the employee was convicted of driving while under the influence of alcohol, and his commercial driver's license was suspended for one year. As a result, the employee was no longer able to work as a truck driver for the employer. He was allowed to transfer into a position as a shop assistant at a lower rate of pay. The employee has an occupational driver's license and would, in his new position, move vehicles around the employer's yard.

At the end of his employment, the employee worked on the second shift. On Friday, January 11, 2013, the employee reported to work at approximately 3:00 p.m. Three drivers reported to the employer that the employee smelled of intoxicants. The employer's safety director spoke with the employee. The employee denied being intoxicated. The safety director did not document any signs of impairment on the part of the employee and did not send the employee for an alcohol screen. The employer's director of operations also did not send the employee for an alcohol screen. Instead, the employee was sent back to work. At some point thereafter, the safety director called the owner and told him that the employee had admitted to drinking before reporting to work that day. The owner told the safety director to send the employee home immediately. Around 7:20 p.m., the safety director told the employee to take the rest of the night off.

When the employee reported for work on Monday, January 14, 2013, the employer's new vice president of safety discharged the employee for violating the employer's policy by reporting to work on January 11 with alcohol in his system. The employee admitted to the vice president that he had consumed two or three beers at a gambling establishment prior to reporting to work on January 11. The employee also admitted to the employer's human resources representative that he had consumed a beer at a gambling establishment prior to reporting to work on January 11.

The department and the ALJ found that the employee was discharged for misconduct connected with his employment, because the employer had the right to expect the employee to abide by its alcohol policy. The employee's job duties required that he not be under the influence of alcohol at work. The employee had received a copy of the employer's alcohol policy, and knew, or should have known, what was expected of him.

The commission agrees that employers have the right to expect employees to abide by reasonable policies designed to restrict the influence of alcohol and drugs in the workplace, even when such policies effectively control employees' off-duty conduct. An employee has an obligation to report for work in an appropriate mental and physical condition, free from the effects of alcohol and illicit drugs.

In order for misconduct to be established as a result of an employee's violation of an employer's policy limiting consumption of alcohol during off-duty hours, the employer's policy must be known to the employee, must specify the consequences for violation, and must bear a reasonable relationship to the employer's business interests. Struck v. Bel Resource Inc., UI Dec. Hearing No. 04607277MW (LIRC Nov. 30, 2004). Here, the employer established that the employee knew of its policy limiting consumption of alcohol during off-duty hours and was aware that a violation of the policy could result in discharge. The employer also established that its policy bore a reasonable relationship to the employer's business interests. However, the employer did not establish that the employee actually violated its policy.

The employer's policy prohibits employees from reporting to work with any measurable quantity of alcohol in their bloodstream. Despite reports that the employee smelled of intoxicants and an admission by the employee that he had been drinking earlier in the day, the employer did not send the employee to a testing facility for an alcohol screen. Therefore, there is no evidence in the record proving that the employee reported to work with a measurable quantity of alcohol in his bloodstream. The employee did not display any signs of impairment or intoxication. Employers are expected to follow their own policies and procedures when investigating possible policy violations by employees. See, e.g., Nahmens v. MCC Wisconsin LCC, UI Dec. Hearing No. 09000647BD (LIRC July 24, 2009); Pouchert v. PJK Finishing Co. Inc., UI Dec. Hearing No. 98606573WK (LIRC March 31, 1999). Had the employer in this case followed its policy and sent the employee for testing based on reasonable suspicion, there would be no question as to whether a policy violation had occurred.

The employer suggested that the employee was not sent to a testing facility because the employee's alcohol consumption was concealed from the employer. The evidence shows otherwise. The safety manager notified the owner by telephone on the night of January 11 that the employee had admitted to drinking before coming to work. It was the owner who instructed the safety director to send the employee home, an instruction with which the safety director complied.

Finally, the employer purportedly has a policy prohibiting employees from consuming alcohol within ten hours of reporting to work. Yet, the employer did not produce a written copy of such a policy. Consequently, the commission cannot conclude that the policy was reasonable and that a violation of the policy amounted to misconduct connected with the employee's employment, within the meaning of Wis. Stat. § 108.04(5). See, e.g., Barnes v. American Building Maintenance Co. of Illinois, UI Dec. Hearing No. 00608090MW (LIRC June 29, 2001).

In the absence of proof that the employee reported to work with a measurable quantity of alcohol in his bloodstream, the employer has failed to show that the employee engaged in misconduct.

The commission therefore finds that, in week 3 of 2013, the employee was discharged but that his discharge was 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 employee is eligible for benefits beginning in week 3 of 2013, if otherwise qualified.

Dated and mailed August 14, 2013

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner


torrejo_urr . doc : 152 :

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing her decision. The commission does not reverse the ALJ's decision based on a different impression of witness credibility and demeanor. Rather, the commission reached a different legal conclusion when applying the law to the facts found by the ALJ.

 


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