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

ANCE D BATES, Employee

THE PELTZ GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02001259MD


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:

1. Delete the third and fourth sentences from the third paragraph under the administrative law judge's Findings of Fact and Conclusions of Law and insert therefor:

"While at the clinic the employee was required to take a drug test. The employer asserted that the drug test was positive for cocaine. Based on the alleged positive drug test, the employer terminated the employee's employment for violating its drug policy."

2. Delete the fifth and sixth paragraphs under the administrative law judge's Findings of Fact and Conclusions of Law and insert therefor:

"Although the employer alleged that the employee tested positive, the employer did not present certified test results at the hearing in this matter. The employer failed to meet its burden of establishing that the employee violated its policy. Further, even if such violation were found, the policy submitted at the hearing did not set forth the consequences of a positive test result."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 4 of 2002, if otherwise eligible.

Dated and mailed October 1, 2002
batesan . umd : 132 : 8  MC 651.1  MC 652.4

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission has modified the appeal tribunal decision to reflect that the employer failed to meet its burden of establishing that the employee tested positive for drugs in violation of the its policy. No certified test results were submitted at the hearing. Further, even if the employer had established that the employee tested positive for a controlled substance, it did not establish that its policy provided for discharge for a positive test. It was the employer's burden to present evidence at the hearing to establish that the employee's discharge was for misconduct connected with his work.

The employer submits with its petition pages from its drug and alcohol policy that were not submitted at the hearing. The commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. For this reason, the commission cannot consider factual assertions made in the petition for review, or documents submitted with the petition for review, which were not also made or submitted at the hearing. For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision as modified.

cc: Madison Recycling Center


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uploaded 2002/10/16