MICHAEL J CONNERS, Employee

CAMPAGNA TURANO BAKERY INC, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed April 1, 2003
connemi . usd : 115 : 1  MC 651.1  MC 652.2

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

The employee was present at the hearing, but did not testify. The employer appeared at the hearing by Ricardo Cantu, a district manager, who testified that the employee came to him on August 15, 2002, and told him that his back was sore;  that, as a result, Cantu took the employee to, and picked the employee up from, the Aurora Health Center;  that, based on instructions from the employer's human resources department in Chicago, he discharged the employee when the employee reported to work at the start of his shift on August 16;  that he did not give the employee a reason for the discharge at the time because the human resources department had not provided the reason to Cantu;  that Cantu later learned that the reason was the employee's refusal of a post-accident drug test when he was at the Aurora Health Center on August 15;  that the employer received a letter from Aurora to this effect (marked as hearing exhibit 1 but not received); and that he didn't recall that any accident occurred and an accident was never reported to him.

Exhibit 2 consists of that part of the employer's employee handbook setting forth its drug and alcohol policy. This policy states that refusing to submit to or efforts to tamper with a drug or alcohol test is strictly prohibited, and that such conduct would subject the employee to disciplinary action, up to and including termination. However, Cantu testified that he didn't bring to the hearing the page of the handbook that specifies when workers will be tested for drugs, and he did not offer testimony as to what the handbook states in that regard. Although it may be arguable that it could reasonably be implied from Cantu's testimony that drug and alcohol testing is required when a worker reports that he has been injured as the result of an accident at the work site, there is no evidence that the employee was involved in such an accident on or before August 15.

The employer failed to show, despite full and fair opportunity to do so, that the circumstances present here justified a drug/alcohol test of the employee pursuant to the employer's rules, and that such rules were reasonable. Without such a showing, it doesn't matter whether the employee refused to take the test or tampered with the test results. It is the employer's burden to establish that an employee's conduct in refusing to take a drug/alcohol test violated a reasonable employer policy. Without either the rule itself in evidence or the testimony of a competent witness as to the content of the rule, the employer fails to meet this burden. King v. City of Rice Lake, UI Hearing No. 96200696RL (LIRC Nov. 1, 1996); Barnes v. American Building Maintenance Co. of Illinois, UI Hearing No. 00608090MW (LIRC June 29, 2001),  Hein v. Cameo Care Center, Inc., UI Hearing No. 02603347MW (LIRC Sept. 6, 2002). Here, the employer failed to produce that section of its rules specifying the circumstances pursuant to which the employer may require a drug test of one of its employees or the testimony of a competent witness as to what that section of the employer's rules provides. Without that evidence, the commission is unable to determine whether the employer's rules in this regard are reasonable or whether requiring the employee here to submit to a drug/alcohol test was consistent with these rules. Moreover, even if it could reasonably be concluded from the record that the employer's rules provide for drug/alcohol testing after a work site accident, the employer failed to prove that such an accident occurred here.

The commission concludes that the employer failed to sustain its burden to show that the employee's discharge was for misconduct.

cc: 
Campagna Turano Bakery, Inc. (Milwaukee, Wisconsin)
Continental Consultants

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uploaded 2003/04/11