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


MACK MCKINNEY, Employe

GOODWILL INDUSTRIES OF SOUTHEASTERN WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99607221MW


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, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits, if otherwise qualified.

Dated and mailed January 31, 2000
mckinma.usd : 132 : 1 MC 651.1  MC 652.5

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that the employe was discharged from his employment but not for misconduct connected with his work. The commission has reviewed the record in this matter and agrees with the appeal tribunal's Findings of Fact and Conclusions of Law. There is no dispute that the employe was in violation of the employer's policy which prohibited a positive alcohol test defined as over .02. However, it is the employer's burden to establish that its rule was reasonable and to justify regulation of an employe's off duty conduct. The employer's policy essentially restricts the employe's ability to engage in a legal activity during off-duty hours. The employer must establish a valid business reason for doing so. The employer did not make such a showing in this case. Further, there was no evidence presented by the employer that the employe was impaired. In its petition for review, the employer requests that the case be reopened so that further testimony can be given. While the commission does have the discretion to order the taking of additional evidence in matters before it, that authority is exercised only in a few exceptional circumstances. Here, there was adequate notice of the fact that the hearing would be the parties' only opportunity to present evidence. There is no credible and convincing evidence that this opportunity was improperly limited at the hearing, or that a party has discovered material noncumulative evidence since the hearing which they could not have known of before the hearing. Finally, the employer has not advanced any other compelling reason to grant a new hearing. Therefore, further hearing will not be granted.

cc: JAMES B SCHMIDT
CONTINENTAL INVESTIGATIONS & SEC

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employer had a rule that if an employe tested more than .02 on an alcohol test that was grounds for immediate discharge. The employe conceded he was aware of the rule. The employe reported to work after drinking the night before. The employer director of market development smelled a strong odor of alcohol on the employe's breath from a distance of over three feet away from the employe. The employe was sent for a test and about two hours after the director first smelled the alcohol on his breath, the employe tested at .088.

The notice of the corrective action taken indicates that "Goodwill holds safety as a number one priority. Mack is expected to come to work alcohol and drug free. Goodwill has zero tolerance for drugs and requires employes to report to work free of alcohol and drugs." While it is true that the employe was not over the legal limit of .10 for driving a motor vehicle, the employer had put him on notice that they expected him to be under .02 for alcohol. The employer did not tell the employe he could not be intoxicated so that there could have been confusion as to how much he could drink before coming to work. The employer rule was clear and the employe knew the rule and violated the rule. I do not believe that the employer should be expected to give additional testimony which would prove that the employe exhibited additional findings of intoxication because they had the employe tested for alcohol. Also the employer rule did not deal with intoxication but was a zero tolerance rule. I believe that the employer has proven that the employe had a wilful and wanton disregard of the employer's interest and therefore was discharged for misconduct connected with his employment.


___________________________________
Pamela I. Anderson, Commissioner


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