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

KEITH A WILTZ, Employee

TRANSIT EXPRESS INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01601357MW


Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission remands this matter to the Department of Workforce Development for additional hearing before a department administrative law judge, acting on the commission's behalf. First, the commission believes the employer's chain of custody evidence is sufficient. While it is not on the current forms used by the department, yet it is on a chain of custody form the department previously used. More importantly, the form submitted by the employer covers all areas of inquiry of the department's current form. The commission also believes the signature on the chain of custody form is sufficient. Not every signature is legible and the certification requirement directly above the signature line is sufficient to establish that the individual certifying the form is competent to certify the matters contained therein.

The employer's proof of a positive drug test is deficient, however. First, the department form concerning the results of the drug test is not signed, and this is critical. Second, the drug test report submitted by the employer does not indicate the kinds of drug tests performed. Again, this is a critical failure by the employer.

Ordinarily, a party has only one opportunity before the administrative law judge to make its case. In this matter, however, hearing office personnel contributed to the employer's failure of proof. When the employer submitted its materials regarding the drug test to the hearing office, it specifically asked that it be notified if the forms it submitted were not sufficient for purposes of the case. Department personnel reviewed the forms submitted, and indicated that they were sufficient. For the reasons stated above, they were not.

Dated and mailed June 4, 2001
wiltzke . usd : 105 : 1 MC 652.4  PC 714.06  PC 734 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

 


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uploaded 2002/01/03