Wis.LIRC UC Decision: Elledge - August 31, 1990 - MC 651.1 - Drugs, alcohol - Reasonableness of rule; MC 651.2 - Scope of rule - off-duty, or limited to on-duty; MC 665.12 - Detriment to employer's interests; MC 692.02

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the
unemployment benefit claim of

DOUGLAS M ELLEDGE, Employe

Involving the account of

MARKHAM TRUCKING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-003907WR

The Initial Determination of the Department of Industry, Labor and Human Relations held that the employe was discharged, but not for misconduct connected with his employment. As a result, benefits were allowed. The employer filed a timely appeal and a hearing was held before an Appeal Tribunal. The Appeal Tribunal also found that the employe had been discharged, but not for misconduct, and affirmed the initial determination. The employer, pursuant to sec. 108.09(6)(a), Stats., petitioned the Commission for 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 as a truck driver for the employer, a trucking company. His last day of work was on or about November 3, 1989 (week 44). On that date, or shortly thereafter, the employe was discharged because he had been convicted of operating a motor vehicle while intoxicated. The violation occurred off duty. The issue in this case is whether the employe was discharged for misconduct connected with his employment within the meaning of sec. 108.04(5), Stats..

When the employe was stopped for operating while intoxicated, he was driving his own vehicle and did not anticipate driving for the employer in the near future. However, the employer had a policy of discharging truck drivers whose driving record showed a conviction for operating while intoxicated whether on duty or off. According to the employer, the policy was mandated by its insurer. Several months before he received his citation, the employe had signed a document that set out the employer's policy with respect to traffic violations generally. The document specifically stated that a driver would be discharged if convicted of operating a motor vehicle while intoxicated. (See Exhibit 1.)

At the hearing, the employe admitted that he was aware of the employer's policy and that he could lose his job if he was convicted of operating a motor vehicle while intoxicated. He testified that a co-worker had lost his job in a similar situation earlier. The employe also testified that he was aware that insurance was important to the employer. The document he signed setting out the employer's traffic offense policy stresses driver insurability.

The initial inquiry focuses on whether the employe's action constitutes misconduct. Misconduct has been defined by the Supreme Court as an intentional and substantial disregard of the employer's interests and the standards of behavior which the employer has the right to expect of its employes. Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60 (1941); Wehr Steel Co. v. ILHR Dept., 106 Wis. 2d 111, 116 (1982). The second inquiry, noted both in the Initial Determination and the Appeal Tribunal decision, is whether the misconduct, if any, is connected with the employe's work under sec. 108.04(5), Stats.

On both points, this case seems rather similar to Gregory v. Anderson, 14 Wis. 2d 130 (1960). In Gregory, the employer had a somewhat harsher rule; it required its employes to abstain from alcohol entirely. The employer imposed that requirement so that it could get insurance for his employes who drove trucks and serviced vending machines in taverns. Anderson, an employe, signed a letter pledging that he would not drink alcohol beverages and he was aware that abstinence was required because of the employer's agreement with his insurance company. Thereafter, Anderson was convicted of operating a motor vehicle while intoxicated, but given a second chance and kept his job. When Anderson subsequently burned himself in an off duty accident, the employer asked him whether he had been drinking at the time. Anderson admitted he had been and was discharged.

The Supreme Court concluded that Anderson had been discharged for misconduct connected with his employment and denied benefits. The court noted:

"The significant fact is that Anderson, when he violated the rule and contract requirement against drinking, knew that such rule, insofar as he was concerned, had its inception in (the employer's) attempt to keep his own pledge given to (the insurer), and, therefore, that such violation might actually harm the business interest of (the employer). Whether it actually did have such result is immaterial."

Gregory, 14 Wis. 2d at 140. The decision in Gregory has been upheld on a number of occasions. Universal Foundry Co. v. ILHR Department, 86 Wis. 2d 582, 592 (1979).

In this case, the employer's rule providing for discharge after conviction for operating a motor vehicle while intoxicated, even off duty, was reasonable. The connection between a driver's insurability and the offense seems clear. Moreover, the rule is not as intrusive as requiring absolute sobriety from drivers. In order to violate the rule, an employe must drink to the point of intoxication and then operate a motor vehicle.

The employe testified that he had been drinking "Sevens and Sevens" (whiskey mixed with a soft drink) at the rate of three an hour for three to three and one-half hours, but thought he could handle the short drive home. He was aware, or given Exhibit 1 should have been aware, that the genesis of the employer's operating- while-intoxicated rule was its concern about the insurability of its drivers. Under the circumstances, the employe's decision to drive after drinking to the point of intoxication was an intentional and substantial disregard of the employer's interests and the duties the employe owed to it. Given the connection between the employe's insurability as a truck driver and his off duty driving record, the resulting misconduct was connected with the employe's work under Gregory v. Anderson.

The Commission therefore finds that in week 44 of 1989, the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04(5) of the Statutes.

The Commission further finds that the employe was paid benefits in the amount of $200 per week for each of weeks 47 through 52 of 1989, and $225 per week for each of weeks 1 through 20 of 1990, amounting to a total of $5,700 for which he was not eligible and to which he was not entitled, within the meaning of section 108.03(1) of the Statutes. Pursuant to section 108.22(8)(a) of the Statutes, he is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The Appeal Tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 44 of 1989, 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 pay the sum of $5,700 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 August 31, 1990
101 : CD8081 MC 651.1 MC 651.2 MC 665.12 MC 692.02

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The credibility of the witness has played no part in the Commission's reversal of the Appeal Tribunal decision. The employe's testimony is consistent with that of the employer's witness, leading the conclusion to believe that both witnesses gave truthful accounts of the events surrounding the employe's discharge. The employe's credibility in particular is supported by the testimony of the employer's witness that the employe told the employer about the operating while intoxicated violation the day after he was cited for it.

The Commission partially reversed the Appeal Tribunal's decision because it differs with his interpretation and application of sec. 108.04(5). The Commission reached a different legal conclusion when applying that section to essentially the same set of facts as found by the Appeal Tribunal. Consequently, a credibility conference with the Appeal Tribunal was not necessary. Transamerica Ins. Co. v. ILHR Dept., 54 Wis. 2d 272, 283-84 (1972).

cc: MARKHAM CORPORATION

STATE REP CHUCK COLEMAN
STATE CAPITOL

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