Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin
Court Decision relating to Unemployment Insurance
Subject: Gary A. Free vs. LIRC and City of Manitowoc, Case No. 05 CV
103 (Wis. Cir. Ct., Manitowoc County, December 5, 2005)
Digest Codes: MC 653.1 MC 653.2
Free worked for the city as a wastewater treatment operator for
about 32 years. The city and those employees had an employment agreement that
provided that drunkenness in the workplace was grounds for discharge without
warning. Free was involved in negotiating that contract. Prior to reporting to
work at 3:00 p.m. on March 17, 2004, free consumed whiskey. At about 4:15 p.m.
Free was reported to smell of alcohol. Free was asked to undergo alcohol testing
and he agreed. He was transferred to a testing facility and at 5:05 p.m. he
registered a 1.34%. At 5:23 he registered 1.21%. After a meeting on March 22,
2004, Free was discharged. The commission found that he was discharged for
misconduct.
Held: The nature and extent of judicial review of unemployment cases,
established by statute, are narrow. Fact findings supported by credible and
substantial evidence are binding on the courts. Misconduct conclusions of law
have been given great weight deference.
Free was discharged for reporting to work under the influence of alcohol. The
labor contract prohibits that behavior. It is not necessary to show that his
ability to perform his work was affected. There is ample evidence to support the
commission’s finding that Free violated the work rule. Free was on notice that
the employer would not tolerate violation of the rule.
Free contends that he is an alcoholic and unable to control his behavior.
However he had not been in treatment prior to the incident and presented no
medical evidence of alcoholism. He also argues that he was not observed
performing in an unsafe manner. The rule is designed to prevent unsafe
conditions. The employer need not wait for harm to occur for the action to be
misconduct. Benefits denied.
Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.
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