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


Subject: Richard Ρrаmеr  v. All Modes and LIRC, Case No. 09-CV-3420 (Wis. Cir. Ct., Racine Co., July 15, 2010)  

Digest Codes: MC 652.9 MC 699

Employee, a commercial motor vehicle driver, was issued a citation for operating a commercial motor vehicle while BAC is .04 or higher, but less than .08.  As a result of that citation, the employer discharged him, explaining that this result was mandated by the Code of Federal Regulations and the All Modes Alcohol/Controlled Substance Policy stating that any driver "that is found to have violated" the prohibition against driving a commercial motor vehicle with a blood alcohol content of .04 is subject to a one-year driving disqualification. An Appeal Tribunal, and then LIRC, concluded that misconduct had not been proved, and allowed benefits. LIRC concluded that while driving under the influence of alcohol while on duty would amount to misconduct, the employer had not established that the employee was doing so. The information in the record about the test that led to the citation, was inadequate to support a finding.   The penalties requiring disqualification from driving, with treatment, evaluation, and a return-to-duty test required before the resumption of driving privileges do not accrue until after a conviction for the offense in question, not upon a citation therefore. The employer appealed.

Held: AFFIRMED. The employer looked to its obligations under the CFR and noted that §382.201 provides that ''No employer having actual knowledge that a driver has an alcohol concentration of 0.04 or greater shall permit the driver to perform ... safety sensitive functions." §382.503 further prohibits an employer to permit a driver who has engaged in the prohibited conduct from driving a commercial motor vehicle, unless the driver has met the 'return-to-duty' process which includes evaluation and treatment; that same section prohibits the driver himself from driving a CMV unless he has met those requirements. Since it had notice of the citation, the employer understandably believed that it was bound by those provisions, since it believed it had 'actual knowledge' of the .04 BAC.

However, LIRC clearly viewed this as a burden of proof case. On the facts presented, LIRC decided that it would not or could not draw the inference that Ρrаmеr had, actually, been operating with a BAC of .04 or greater. This court might very well have made a different finding. But when more than one reasonable inference may be drawn from the evidence, the drawing of one such inference by the commission is an act of fact-finding and the inference so derived is conclusive on the court. Moreover, the decision of the Commission is, in this case, entitled to great deference.

This is not a case in which the circuit court may make a determination de novo. A reviewing court is to uphold a reasonable statutory interpretation by the Commission even if it feels an alternative interpretation is more reasonable. The inferences drawn by the Commission are not unreasonable, nor is its interpretation of the law as intertwined with the facts. A reviewing court may not substitute its judgment for that of the commission as to the weight or credibility of the evidence. Under this standard, the employer has not met its burden of showing that the findings of fact by the commission do not support the order or award, nor has it met any of the other criteria under §102.23(1)(e). Therefore the commission is confirmed.


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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