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


KIRK D BONNER, Employe

ZIEGLER BUILDERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99004684MD


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 June 27, 2000
bonneki.usd : 135 : 1  MC 665.04  MC 688.1  MC 699.05

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer requests that the commission reverse the appeal tribunal decision and find that the employe's discharge was for misconduct. In support of its argument, the employer contends that the ALJ's findings of fact are completely contrary to the evidence that was presented. The employer argues that the owner did not consume alcohol while working and that drinking alcohol during working hours was not a usual occurrence. In fact, according to the employer, the owner and its crew foreman warned the employe that drinking alcohol during working hours was unacceptable. The commission notes the ALJ's reference to "while working" incorporates the general work site in which the alcohol consumption took place. The commission also disagrees with the employer's argument that drinking during working hours was not a usual occurrence.

Based on the evidence adduced at the hearing, including the employer's testimony, drinking at the work site toward the end of the work shift did occur. The commission therefore is satisfied that the employer condoned the consumption of alcohol at work sites based on all the evidence. Additionally, the employe was never warned, despite this condonation that consuming alcohol at work sites, at the end of a job or towards the end of his shift, would result in termination. If the employer was upset with the employe's conduct regarding the consumption of alcohol at job sites, the employer should have taken steps to discontinue its condonation and formerly warn the employe that the next occurrence would result in discharge.

The employer also argues that the ALJ completely ignored the fact that the employe failed to complete his assigned work on September 25, 1999. This is not an exact characterization since the ALJ did find "in fact, the contractor did not complain to the employer about the employe's conduct until days after it happened." The ALJ recognized the fact that both the contractor and employer were not satisfied with the employe's level of performance. However, it was not established that this level of performance amounted to misconduct under the circumstances as found. The employer had a duty and a responsibility to warn and advise the employe that his conduct was unacceptable. The employer did not do this. In fact, even though the employer was aware of the contractor's dissatisfaction, the employer failed to inform the employe during a two week interim between the employe's last job assignment and his termination of its dissatisfaction.

Finally, the employer contends that the employe was discharged for falsifying a worker's compensation claim and/or injury report. As noted by the ALJ, the employer failed to present any persuasive evidence that the employe committed this conduct.

In sum, the employer presented the picture of a less-than-model employe. However, it was not established that the employe's level of performance or conduct amounted to misconduct. The commission is satisfied that the employer tolerated the employe's less than satisfactory performance and condoned his alcohol consumption at the work site before deciding to terminate him. Under the circumstances, the employe's discharge was not for misconduct connected with his employment.

cc: ATTORNEY CHRISTOPHER W DUREN


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