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

DENNIS WIMPIE, Employee

MILWAUKEE TRANSPORT SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05603202MW


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 four years as a municipal bus driver for the employer, a city bus transportation company. His last day of work was March 6, 2005. He was discharged effective March 10, 2005 (week 11), for failing a drug/ alcohol test.

In December, 2003, the employee tested positive for cocaine. As a condition of his continued employment, after completing a drug program, he agreed to regular drug testing. On March 6, 2005, the employee was randomly tested for drugs. The employer reported that the test was positive for cocaine. The employee contested the result and paid for a split sample retest. The second half of the original sample was retested. It was also positive. The employer's policy provided for discharge in the event of a positive test. The employee resigned in lieu of termination.

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 chapter 908 of the Wisconsin statutes. CJW, Inc. v. John Goodwin and LIRC, Case No. 04-CV-1704 (Wis. Cir. Ct., Racine Co., February 22, 2005)

At the hearing, the employee denied that he used illegal drugs and questioned the identity of the urine sample. In particular, he argued that the drug form which certified the collection procedure was not signed by the collector but by the supervisor. Therefore no one with first hand knowledge could account for discrepancies in the original collection document, on which the certification was presumably based, and explain inconsistencies in the timeline.

Departmental drug forms must be certified by an individual with first hand knowledge of the collection procedure in order to meet the standard cited above. The commission has allowed benefits in similar cases based on the failure of the collector with first hand knowledge to certify the identity of the sample. The identity of the employee's sample is essential to establishing that it was the employee's sample which showed the positive result. Anderson v. R & L Transfer Inc, UI Hearing No. 02603529MW (LIRC May 7, 2003). In Anderson, the commission distinguished the reliability of a supervisor's certification in a lab setting from that in a clinic setting, insisting that a first hand eyewitness must sign to establish the identity of the sample.

Since the employer's forms are not properly certified, they do not establish that the employee tested positive for illegal drugs. Without the certified departmental drug 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).

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 11 of 2005, 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 11 of 2005, if he is otherwise qualified.

Dated and mailed September 20, 2005
wimpide . urr : 178 : 1 MC 652.4

/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.

In the employee's petition for commission review, he alleges that the employer's actions since his discharge are interfering with his ability to secure new work. The commission cannot consider issues between the parties which arose after the separation. The commission is limited to the circumstances leading up to the discharge.

cc: Attorney Jesus J. Villa


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