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

MELVIN R SANDERS, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05602427MW


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.

DECISION

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

Dated and mailed August 12, 2005
sandeme . usd : 178 : 2   MC 652.4

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer challenges the employee's right to a new hearing on the merits and disputes his account of the reasons he was unable to attend the first hearing. The commission set aside its original decision and remanded this matter for a new hearing and decision in a decision dated December 22, 2004, after it found that the employee had good cause for missing his hearing. The appeal period for that decision has passed and it has become final. The commission explained its reasons for granting the employee a new hearing on the merits in that decision. The employer should refer to it for additional information.

On the merits, the employer argues that the employee admitted to two different human resource generalists that he used illegal drugs contrary to the employer's drug policy. It refers the commission to its records. The employer had no first hand testimony from any witness who heard the employee admit to the use of illegal drugs. At the hearing, the employee denied that he used any drugs and testified that he disputed the test result and wished for a retest. Although the employer seeks to undermine the credibility of the employee's testimony by referencing its employment records, the commission does not find the employer's records persuasive.

The commission is not required to credit the employer's documentary evidence over the employee's testimony. Brookman v. Cornwell Personnel Associates Ltd., UI Hearing No. 02607251MW (LIRC Jun 24, 2003). Persons possessing firsthand knowledge are necessary and cannot be replaced by documentation or signed statements in lieu of testimony. The only firsthand evidence in this record regarding the employee's comments on his drug use comes from the employee. While the computer printout may be admissible under a hearsay exception found at Wis. Stat. § 908.03(6), the commission is unwilling to conclude that the employer established with sufficient competent evidence that the employee admitted illegal drug use Relying instead on the credibility of the employee's testimony, the commission defers to the ALJ's credibility determination." Young v. Flex-staff Temporary Serv - Appleton, UI Hearing No. 00401782AP (LIRC Sept. 8, 2000).

Since the record lacks an employee admission of illegal drug use, the employer must prove that the employee violated its drug policy by providing certified evidence of a failed drug test. It failed to provide any non-hearsay evidence of illegal drug use.

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 Wis. Stat. Chapter 908, CJW, Inc. v. John Goodwin and LIRC, Case No. 04-CV-1704 (Wis. Cir. Ct., Racine Co., February 22, 2005)

The employer was provided with a departmental drug form for purposes of certifying the employee's drug 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 critical fact 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, UI 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).

Without the 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 only evidence provided by the employer that the employee tested positive for drugs is the 'admission' contained in exhibit 6. However, the ALJ credited the employee's testimony that the employer required he sign this form in order to receive his paycheck. Although the employer's witness denied that it would have retained the check if the employee had refused to sign, both its computer records and the witness's testimony corroborate the employee's testimony that the employer led him to believe that he must sign to get paid. Accordingly, the commission gives exhibit 6 no weight.

Finally, the employer argues that the ALJ is biased against employers who enforce policies against the use of illegal drugs. The commission listened to the recording of the hearing and finds no evidence of bias. The ALJ correctly articulated the law with regard to unemployment and drug testing. The ALJ also fully developed the record and accurately applied the law as stated above. The commission finds no bias which prevented the employer from receiving a fair hearing.

In this case, the ALJ credited the employee's testimony that he did not use illegal drugs. The commission will not disturb that finding. In the absence of any
non-hearsay evidence to the contrary, the commission must affirm the appeal tribunal decision.

cc: Cornwell Staffing Services, Milwaukee, WI



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