DARYL CROSS, Employee

PATRICK CUDAHY INC, Employer

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 makes the following:

The employee worked two years and about eight months for the employer, a meat- processing company. His last job was as a material handler. His last day of work was July 22, 2004 (week 30). The employer discharged the employee on his last day of work for violating a last-chance agreement.

The issue is whether the employee was discharged for misconduct connected with his work.

The employee tested positive for cocaine use following an on-the-job accident. He entered into a last-chance agreement, which indicated that he would be discharged if he voluntarily admitted to use of, or tested positive for drugs or alcohol. The agreement between the employer and the employee's union provided for the employee to participate in an employee assistance program following a positive drug test and discharge for any confirmed positive test thereafter.

On July 17, 2004, at about 1:30 a.m. the employee's supervisor was talking with the employee and smelled alcohol on the employee's breath. The supervisor asked the employee if he had been drinking. The employee admitted he had consumed alcohol that night. On July 22, the employee met with the employer's vice-president of human resources. At that meeting the employee admitted that he had had two beers at about 4:00 p.m. on July 17 and that on one occasion in June he drank 12 beers. The employer discharged the employee based on his admission that he consumed alcohol.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term `misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed `misconduct' with in the meaning of the statute."

The employee was discharged for violating a last-chance agreement which prohibited him from consuming any alcohol, whether on or off duty. While an employer does have a right to regulate off-duty conduct, in order for the violation of a work rule relating to off-duty conduct to constitute misconduct, the rule must bear a reasonable relationship to the employer's interests. Gregory v. Anderson, 14 Wis. 2d 130, 137, 109 N.W.2d 675 (1961). The employer established a business reason for monitoring and prohibiting the employee's use of illegal drugs while off duty. The employer did not establish a relationship between the employee's off-duty consumption of alcohol, a legal substance, and its interests. The employer did not establish that the employee's absences were related to off-duty consumption of alcohol. The employer did not establish that the employee appeared for work under the influence of or impaired by alcohol. The most the employer established is that after the employee signed the agreement he appeared for work with alcohol on his breath. The employee admitted on that occasion to consuming two beers eight hours before he began work. The employer could discharge the employee for violation of the last-chance agreement. However, the employer did not establish that the employee's actions constituted an intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 30 of 2004, the employee was discharged but not for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 30 of 2004, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed December 3, 2004
crossda . urr : 132 : 1 :   MC 651.2  MC 651.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal does not depend upon an assessment of witness credibility, but is as a matter of law.

Appealed to Circuit Court. Affirmed June 29, 2005.   [Circuit Court decision summary]   Appealed to the Court of Appeals.  Reversed sub nom. Patrick Cudahy v. LIRC and Daryl Cross, 2006 WI App 211, 296 Wis.2d 751, 723 N.W.2d 756.

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uploaded 2004/12/16