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


ZOLTAN F STOFF, Employe

REICHHOLD CHEMICALS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98607408MW


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about two years for the employer. His last day of work was September 21, 1998 (week 39), when he was discharged.

The employe had previously tested positive for alcohol in February, 1998. He underwent treatment and was told he would be subject to repeat testing for a year. On September 18, 1998, he was absent. When he spoke to his supervisor that day he indicated he was very ill with sinus infection like symptoms. He was told to get a doctor's excuse. On his next scheduled work day of September 21, 1998, the employe gave the supervisor his excuse and told the employer he still felt ill. During the conversation, the supervisor smelled alcohol on the employe and noted his speech was slow. The supervisor told the employe he would take him for a breathalyzer test and did so. The employe indicated prior to the test he had taken an over-the-counter cold medicine for his symptoms. He tested positive for alcohol. He was discharged for testing positive for alcohol in violation of the employer's drug and alcohol policy.

The issue to be decided is whether the employe's discharge was 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 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 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."

Although the employe attributed his blood alcohol level to the cold medicine he was taking, the commission does not credit that his test result was the inadvertent result of his use of an over-the-counter medication. Although it was not in dispute that he was ill, he had a prior history of intoxication on the job. Further, his assertion that he needed to use a larger dose of the medicine than others due to an unrelated health condition was not supported by any medical evidence. Although offered the opportunity to bring the bottle of the cold medicine for the employer, he was unable to produce the bottle then or at the hearing. Under the circumstances, the commission concludes that his ingestion of alcohol was intentional and in knowing violation of the terms of his employer's drug and alcohol policy.

The commission therefore finds that in week 39 of 1998, the employe was discharged for misconduct connected with his work for the employer, as defined by Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits during weeks 39 through 44 and 52 of 1998, and weeks 1 and 19 through 30 of 1999, amounting to a total of $5,174; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 39 of 1998, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay $5,174 to the Unemployment Reserve Fund. The initial benefit computation (UCI-700) issued on September 25, 1998 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

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 July 30, 1999
stoffzo.urr : 178 : 7 MC 653.3

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission consulted with the ALJ prior to reversing the appeal tribunal decision. The ALJ made his decision without the employer's certified test result due to the employer's lab's error in not completing the second part of the department's drug testing form. The commission bases its decision on the supplemented hearing record created at the remand hearing. In addition, the commission places greater weight on the employe's past history of alcohol intoxication than on the evidence that the employe had recently been ill in concluding that the source of the alcohol in the employe's system was not due to the inadvertent consumption of alcohol in over-the- counter medicine.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: REICHHOLD CHEMICALS INC

GEOFF HERMSEN
RETAIL SPECIALISTS


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