UI Court decision summary -- Cross, Daryl, Patrick Cudahy, Inc v. LIRC and (Wis. Cir. Ct., Milwaukee Co., June 29, 2005) - MC 651.2 - Drug, Alcohol rules - Scope of rule - off-duty, or limited to on-duty; MC 651.5 - Drug, Alcohol rules - "Last chance" / "Return to work" agreements - employee on "last chance" agreement, after positive drug test following on-the-job accident, prohibiting any use of alcohol on or off duty, discharged after smell of alcohol noted on breath at work and he admitted drinking off duty - no misconduct - no evidence employee ever drank at was impaired while at work, nor any evidence employee’s past use of cocaine made it likely that he would drink or be drunk at work

Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Patrick Cudahy, Inc. v. LIRC and Daryl Cross, Case 04CV011123 (Wis. Cir. Ct., Milwaukee Co., June 29, 2005)

Digest Codes: MC 651.1 MC 651.5

Following a minor accident at work, the employee tested positive for cocaine. Subsequently, as part of a last-chance agreement, the employee had to agree to refrain not only from any use of illegal substances but also from the use of alcohol, both on and off duty. The employee, who worked third shift during the week, subsequently came to work with alcohol on his breath and was suspended for violation of the last-chance agreement. During investigation, the employee admitted he also had drunk a 12-pack one Saturday night several weeks earlier. The employer then discharged the employee for violation of the provision of the last-chance agreement prohibiting even off-duty consumption of alcohol. The commission found no misconduct on the ground that the employer did not establish a reasonable basis for the employer’s having prohibited the employee from off-duty consumption of alcohol. [LIRC decicision]

Held: Affirmed. The court failed to affirmatively select a standard of deference, reasoning instead that under any standard the commission’s decision would be upheld. (The court indicated that the commission’s decision might not be entitled to great weight deference on the ground that its decision seemed to rest on common sense and not upon its specialized knowledge or expertise.) The court held that no interpretation of misconduct before it was more reasonable than that of the commission. The court strongly rejected the employer’s argument that the employee’s off-duty drinking in fact endangered workplace safety. There was no evidence the employee ever drank at work or was impaired while at work. Nor was there any evidence that the employee’s past use of cocaine made it likely that he would drink at work or come to work impaired.

The court looked at the argument that breach of the last-chance agreement, in itself, constituted misconduct. The court noted that, in Gregory v. Anderson, 14 Wis. 2d 130, 109 N.W.2d 675 (1961), the supreme court did not take that tack, that it instead looked “behind” the agreement to see whether the agreement was reasonable in the first instance. While the circuit court indicated that it would have been reasonable to find that violation of the last-chance agreement in itself was misconduct, to do so is not more reasonable than the approach taken by the commission and the court in Gregory.

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.

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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