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

RUBEN MARTINEZ, Employee

J L FRENCH CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 074006


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 as a p.m. shift machine operator for the employer, an automobile die cast parts manufacturer. His last day of work was February 1, 2007 and he was discharged on February 6, 2007 (week 6).

The employer's rules prohibit "[r]eporting to work under the influence of alcohol." Under the terms of the employer's drug and alcohol policy, being at work "under the influence" is also prohibited, with a blood alcohol concentration of equal to or greater than .04 percent considered under the influence. A blood test can be required upon reasonable suspicion with an odor of alcohol raising reasonable suspicion. A worker who violates the policy is subject to discipline, including discharge. The employee testified that he "was pretty much aware of all the rules and regulations" and knew that he could be subject to an alcohol test if there was "reasonable suspicion" of his reporting to work under the influence of alcohol.

While at work on February 1, 2007, the employee was notified that his mother was hospitalized due to a heart condition. He left work and immediately went to the hospital. After staying at the hospital until approximately 2:00 a.m., he returned to his home but did not sleep and did not eat because he was so upset. He had a few beers in the late morning or sometime before 1:00 p.m. The employee was scheduled to report to work at 3:00 p.m. on Friday, February 2 but contacted the employer asking to be absent that day because of his mother's serious medical condition. The human resources representative (HR representative) directed the employee to report to the employer's business to complete the leave forms.

The employee arrived at the business and met with the HR representative shortly before 3:00 p.m. to complete leave paperwork for that day. The HR representative observed that the employee smelled of alcohol and was very upset over his mother's condition. The leave paperwork listed that day, February 2, 2007 as the leave start day. The employer's benefits administrator approved the leave to begin that day.

After completing the paperwork, the employee misunderstood the leave requirements believing that he had to punch in and tell his supervisor that he was going to be absent that day. The employee notified the HR representative that he would be punching in. She did not tell him it was unnecessary but began assisting other workers. The employee punched in and attempted to speak with his supervisor. The supervisor was busy and directed the employee to wait at his machine. The employee did not operate the machine but waited by it for his supervisor. When the supervisor returned, the employee explained that he was in no condition to work, he wanted the day off and that he had called in his absence earlier at 1:00 p.m. The supervisor, who had been notified by the HR representative that the employee smelled of alcohol, asked the employee if he had punched in. When the employee replied that he had, the supervisor directed him to take an alcohol test based upon the reasonable suspicion provisions of the employer's drug and alcohol policy. Had the employee refused the test, he would have been immediately terminated. The employee took the test and was terminated on February 6, 2007 for an alcohol level of allegedly .07 percent. Following the discharge, the employee sought payment of unemployment insurance benefits.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Thus, the issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

. . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute.

In Wilfling v. KRC (Hewitt), Inc., UI Dec. Hearing No. 96401021AP (LIRC August 1, 1996), the commission, citing Milwaukee Transformer Co. v. Industrial Comm., 22 Wis. 2d 502, 126 N.W.2d 6 (1964), explained that, "[n]ot every work rule violation which warrants separation is the intentional and substantial disregard of the employer's interests which is misconduct."

In this case, the commission's decision does not delve into the competency of the alcohol report offered by the employer. In particular, even if the employee was under the influence of alcohol on February 2, 2007, the underlying facts lead to the conclusion that his actions were not an intentional or substantial disregard of the employer's interests so as to constitute misconduct. Specifically, the employee did not wish to work that day and so notified the employer prior to his shift. In response, the HR representative directed him to report to the employer's business to complete the leave paperwork. Once at the employer's business, the employee acted consistently with not wishing to work that day. He completed the leave paperwork indicating a February 2 start of leave date. While he did punch in to speak to his supervisor about his leave, the commission, like the ALJ, credits the employee's testimony that he punched in based upon a misunderstanding of what was necessary for his leave. His further actions were consistent with that misunderstanding; he did not perform services but simply waited by his machine as directed until the supervisor arrived. The employee did not intend to work and, as such, any violation of the drug and alcohol policy, was unintentional and not misconduct.

The commission therefore finds that the employee was discharged but not for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 6 of 2007, if otherwise qualified.

Dated and mailed August 30, 2007
martiru . urr : 150 : 1 MC 652.4   MC 653

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM DECISION

The employer petitioned the appeal tribunal decision objecting to the ALJ's factual findings regarding the employer's drug policy, her assessment of the offered alcohol report and the ultimate no misconduct finding. The petition attempted to submit additional documents and facts into the hearing record, arguing that no excused leave was available to the employee and that he reported to work on February 2 with the intent of performing services. The commission notes that the petition was written by the vice president of human resources and that he did not appear at the hearing. Wis. Admin. Code § LIRC 1.04 provides 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. This was explained in the "Important Hearing Information" section of the hearing notice sent to the parties. Further, although the commission does have the discretion to order the taking of additional evidence, that authority is only exercised in a few exceptional circumstances that do not exist in this matter.

With respect to the petitioner's assertion that no excused leave was available to the employee on February 2, the HR representative testified to the contrary at the hearing and Exhibit 7 establishes that the employee was found eligible for leave under FMLA.

Next, the petitioner objected to the ALJ's decision to credit the employee's testimony that he did not actually receive a copy of the employer's drug and alcohol policy. However, whether he received a copy of it was not determinative as both the ALJ and the commission found that the employee had knowledge of the policy.

Finally, the petitioner asserts that it was inappropriate of the ALJ to expect that the alcohol report be properly documented. The commission disagrees. The alcohol report offered by the employer was completed by an individual who did not appear at the hearing and was not subject to cross-examination to determine whether the proper chain of custody or the proper testing procedures were followed. The report was offered to prove the truth of the matter asserted, namely that the employee was under the influence of alcohol. Technically, it is hearsay and, while the statutory and common laws of evidence are not controlling in an unemployment insurance appeal hearing and hearsay evidence may be admitted if it has a reasonable probative value, no issue may be decided solely upon hearsay evidence unless that hearsay evidence is admissible under Wis. Stat. § 908. See Wis. Admin. Code § DWD 140.16. In this case, the petitioner has failed to establish any independent admissibility under Wis. Stat. § 908; consequently, it must rely upon Wis. Stat. § 108.09(4m) for admissibility.

Wis. Stat. § 108.09(4m) references certification, verification and competency of the report to set certain minimums of reliability; again, this is to allow such a report to substitute for live in-person testimony by the lab technicians who gathered the sample and performed the test. See Driessen v. V & S Midwest Carriers Corp., UI Dec. Hearing No. 06401602AP (LIRC September 29, 2006). Rejection regarding the competency of a testing report is not unique and the commission has expressly affirmed such decisions in the past. In particular, in Driessen, the commission found that a drug test report failed to meet the minimum standards for reliability where the record lacked the certification or credentials from the lab analyst who performed the test as was expressly required by the department's report; additionally, no information from the lab was included in the employer's materials other than the Federal Register's certification of the lab facility. In Seabrooks v. Geon Co., UI Dec. Hearing No. 00604875MW (LIRC March 1, 2001), the commission affirmed an ALJ's refusal to receive a drug test report into the record where the medical review officer who signed the drug reports lacked firsthand knowledge of the circumstances surrounding the gathering and testing of the sample. Finally, in Shada v. Hondo Inc, UI Dec. Hearing No. 99602009RC (LIRC June 11, 1999), the commission found that while the employer offered evidence of a positive drug test result, it failed to establish that the test result was valid because:

(1) the record lacked a signed certification from the laboratory performing the drug testing analysis, consequently,

(2) it was not established that the proper chain of custody procedures were followed,

(3) given the fact that the patient's name and social security number on the final drug testing report did not match the employee's name and social security number, there was no basis to hold that the employee actually tested positive for illegal drugs, and

(4) the materials submitted by the employer failed to establish whether a confirmatory test was ever performed.

In this case, the Department provided employer with two Unemployment Insurance (UI) Drug Reports for offering the drug test results. Those reports were labeled:

(1) "OBTAINING AND SEALING THE SPECIMEN", and

(2) "PERFORMING THE TEST ANALYSIS"

While both reports were certified, the "OBTAINING AND SEALING THE SPECIMEN" report lacked any details regarding the handling of the specimen, how it was transported, or any supporting documentation. More importantly, even though the "PERFORMING THE TEST ANALYSIS" report provided

YOU MUST PROVIDE A COPY OF THE TESTING LABORATORY'S AND ANALYST'S CERTIFICATION AND/OR CREDITIALS.

no such information was submitted at the hearing. As such, had the facts necessitated a review of the offered alcohol test results, the commission would have found that the documents offered by the employer at the hearing were insufficient.

Although the commission's decision affirms the no misconduct finding, it has rewritten the decision to provide a more detailed explanation of the factors it considered in reaching its decision.


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