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


TODD N MC CONOCHIE, Employe

STOUGHTON TRAILERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00000773MD


On January 12, 2000, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on February 23, 2000 in Madison, Wisconsin before a department administrative law judge. On February 25, 2000, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case worked approximately one month as a welder for the employer, a semi-trailer manufacturer. The employer discharged him on April 26, 1999 (week 18), following a positive breathalyzer test (for alcohol). The issue is whether the employe, by the positive test, is guilty of misconduct for unemployment insurance purposes. The commission believes that he is, and so reverses the appeal tribunal decision.

The employe admitted using alcohol the night before reporting to his work shift. He estimated that he consumed approximately 12 beers and several brandies and went to bed at approximately 6:00 a.m. He reported to work at 11:00 a.m. for another employing unit and worked until 3:00 p.m. He went to his second shift work with the employer which began at 3:30 p.m., and was tested approximately one and one-half hours later. Although the nurse administering the test did not notice any impairment on the employe's part he did smell alcohol on the employe. The employer gave the employe two breathalyzer tests. The first showed an alcohol level of .073, the second (approximately 15 minutes later) an alcohol level of .077. The employer subsequently discharged the employe for the positive alcohol test.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The commission believes the employe's positive test meets that standard. The employer's policies, which the employe was aware of, allow random drug tests of its employes. The employer's Drug and Alcohol Abuse Policy also states that failure of a drug/alcohol test while on probation, is a violation of the employer's policy and grounds for immediate discharge. The employe also conceded that he knew a positive test would result in his immediate discharge. Given all of these factors, the commission must disagree with the administrative law judge's reasoning that the employer's policies were inadequate to give notice to the employe that his indulging in alcohol could result in his being out of compliance with the employer's policy. Indeed, that the second test went up indicates, according to the nurse who administered the test, that the employe had been drinking more recently than 6 a.m., as the employe had claimed.

The commission therefore finds that, in week 18 of 1999, the employe was discharged 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 employe is ineligible for benefits beginning in week 18 of 1999, 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. Department records indicate that the employe had met requalification requirements as of week 1 of 2000, when he initiated a new claim for unemployment insurance.

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 13, 2000
mcconto.urr : 105 : 1  MC 652.5

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, it is based upon the employe's outright concession that he knew a positive test would result in his discharge. Based upon this concession, the commission believes the employer's policies were sufficient to place the employe on notice that he could not report to work with a blood alcohol level of more than .07.

cc: STOUGHTON TRAILERS INC


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