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

DAVID J OLEARY, Employee

GENERAL MILLS OPERATIONS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04609661MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for five months for the employer. His last day of work was September 23, 2004. The employee was discharged on September 30, 2004 (week 40), for having alcohol in his system on his last day of work.

The employer had a drug and alcohol policy which prohibited employees from being under the influence of alcohol while working. On the employee's last day of work, the employer was told that the employee smelled of alcohol. The employer sent the employee to take a breathalyzer test which he was told was "positive." The employer discharged the employee for violation of its drug and alcohol policy. The employee admitted drinking alcohol the night before but was unaware that he had any alcohol in his system.

The issue in this case is whether the employee was discharged for misconduct connected with his employment.

Under Wis. Stat § 108.09(4m), the contents of verified or certified reports by qualified experts constitute prima facie evidence as to the matter contained in the reports in any proceeding under this section, insofar as the reports are otherwise competent and relevant, subject to such rules and limitations as the department prescribes. Wis. Admin. Code DWD 140.16 provides that, while hearsay evidence is admissible if it has reasonable probative value, no issue may be decided solely on hearsay evidence unless the hearsay is admissible under ch. 908, Stats. CJW, Inc. v. John Goodwin and LIRC, Case No. 04-CV-1704 (Wis. Cir. Ct., Racine Co., February 22, 2005).

Prior to the hearing, the employer's agent was provided with a departmental drug form for purposes of certifying the employee's alcohol test results but did not offer any certified drug forms at the hearing. The commission is not permitted to make any ultimate finding solely on the basis of hearsay. The employer may not rely solely upon hearsay to establish a fact critical to its case.

Without the certified departmental form, the necessary indicia of reliability for the test result are not present. Jewson v. Home Depot USA Inc., U I Dec. Hearing No. 02005077MD (LIRC May 7, 2003)); Shada v. Hondo Inc., UI Dec. Hearing No. 99602009RC (LIRC June 11, 1999); Seabrooks v. The Geon Co., UI Dec. Hearing No. 00604875MW (LIRC Mar. 1, 2001).

Since the employer has provided no certified test results, the record does not contain any competent evidence that the employee failed the drug test and was thus guilty of "misconduct" for unemployment insurance purposes.

The commission therefore finds that in week 40 of 2004, the employee was discharged but that the discharge was not for misconduct connected with his work for the employer, under Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 40 of 2004, if he is otherwise qualified.

Dated and mailed July 28, 2005
olearda . urr : 178 : 1 MC 652.4 MC 653.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing. It reaches its decision not based on any differing assessment of witness credibility but as a matter of law.

cc:
General Mills Milwaukee
Attorney Richard J. Steinberg


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