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

EDWARD W WEST, Employee

WISPAK TRANSPORT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01604871MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Insert following the fourth paragraph after FINDINGS OF FACT AND CONCLUSION OF LAW:

"In addition, the employer failed to prove that the employee submitted an adulterated sample. The unemployment insurance drug form submitted by the employer is rejected because it was not completed by someone who could certify to its authenticity. It was completed by the MRO coordinator who had no first hand knowledge of the events in question. The form constitutes a certified report of an expert witness to the extent that it contains competent and relevant material. Since the party completing the report is not competent to certify that the lab in Illinois followed procedures in maintaining custody and testing the sample, she is not competent to certify the form. The employer or its agent needed to follow the clearly articulated instructions on the cover letter."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 16 of 2001, if otherwise qualified.

Dated and mailed December 21, 2001
westedw . umd : 178 : 1  MC 652.4  PC 714.07  PC 714.02   PC 714.06 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner



MEMORANDUM OPINION

The commission has modified the appeal tribunal decision to include the alternative rationale for finding against the employer. As the ALJ pointed out in his note at the end of the decision, the employer's evidence was insufficient to prove that the employee submitted a non-human sample to be tested for drugs. The drug testing form submitted by the employer was completed the MRO coordinator at Aurora Health. This woman did not take or test the sample. The cover letter to the employer states emphatically that the form must be completed by those individuals having first hand knowledge of the information within and directed the employer to send one part to the clinic and the other to the lab. Both parts were completed by an individual at the clinic. This is unacceptable.

The ALJ's decision relies on the employer's failure to prove a reasonable suspicion for ordering the drug test. The observation form is hearsay. If the employer had had the supervisor testify about what he saw that night, it would have been sufficient. The commission generally does not second guess what the employer might consider suspicious conduct. However, there are hearsay problems in this instance because the observation form is not a record of a routinely conducted business activity.

cc: Green Law Offices Ltd.


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uploaded 2002/01/07