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

LONNIE P EVANS, Employee

WESTERN BUILDING PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07400941AP


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 one year as a material handler for the employer, a business which manufactures and distributes doors and wood products. His last day of work was March 9, 2007 (week 10).

On March 9, 2007 (week 10), the employee was asked to move a skid of columns. He moved the load outside, driving a forklift which was not intended for outside use. He drove through an overhead door, which was not completely raised, without checking the clearance. He hit and damaged the bottom panel of the door; the forklift was not damaged. The employee's supervisor questioned him abut the incident and informed him that under the employer's policies, any worker involved in an accident must submit to a post accident drug and alcohol screening. The employee was taken to a local clinic where a urine drug test was administered. The results were allegedly positive for marijuana.

On March 14, 2008 (week 11), the employee was discharged for the improper use of a forklift, a safety violation, and for allegedly failing the post accident drug and alcohol screen test. The employee filed a claim for 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.

It is an employer's burden to establish that an employee's discharge is for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

The employee petitioned the appeal tribunal decision contending that his discharge was not for misconduct. Specifically, he claimed that the employer's failure to allow the opportunity for a retest was unfair. The commission understands this argument to be a continuation of the employee's position at hearing disputing the validity of the drug test result. The employee's contention must be sustained.

In particular, while the employer's drug and alcohol policies adequately warn its workers that reasonable suspicion and accident situations warrant a drug and alcohol test and further warn that discharge may occur upon a positive test, the employer failed to establish by competent evidence that the employee actually failed the drug test.

In lieu of presenting witnesses from the testing and laboratory facilities regarding the employee's drug and alcohol test, the employer submitted two Unemployment Insurance (UI) Drug Reports. Wis. Stat. § 108.09(4m) references certification, verification and competency of reports of experts, setting certain minimums of reliability to allow an employer to offer 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). The standard UI reports are labeled:

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

(2) "PERFORMING THE TEST ANALYSIS" (laboratory report).

Both reports require certification and signature "by an individual who can attest to the accuracy of the information provided." Supporting documentation may also be attached with the laboratory report directing that,

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

In this case, the ALJ marked the collection report as page 1 of Exhibit 3, the laboratory report as page 2 of Exhibit 3 and the third and final page of this exhibit is a faxed form titled, "CHAIN OF CUSTODY FORM (NON REGULATED)."

The two standard UI forms, pages 1 and 2 of Exhibit 3, are signed by a supervisor, Ms. Register, at "Aurora Occupational Health Services" with an Elkhorn Wisconsin address, noting that the specimen collection was performed by a Ms. Garcia. The collection report, as completed by Ms. Register reflects the following as the means of identification, a "verbal ID was given by the production manager that brought the patient in (initials are J.B)." The hearing record lacks any indication of who J.B. is; in particular, the employee's initials are L.E., his most recent supervisor's are J.L. and the warehouse manager's are G.T. Further, while the custody report indicates that the specimen's obtaining and handling followed the "DOT's Workplace Drug testing program regulations, 49 CFR, part 40", the laboratory report, also completed by Ms. Register, reflects hat a "non-DOT COC [chain of custody] was used." The laboratory report asked for the test results, allowing for additional laboratory information to be attached in response. Question 6 of the laboratory report asked,

How long do the metabolites for the specific drug(s) identified remain in a person's system [i.e., how long are the specific drugs detectable after use]?

Ms. Register provided the with the following unresponsive answer, "This varies depending upon what drug was used, + size of person." Although the laboratory report directed parties that,

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

no such information was submitted with the report

Page 3 of Exhibit 3, the faxed form, reflects that the collection site was the Elkhorn location, AHC/AOHS/LAKELAND. Although page 3 indicates in "STEP 4" that the chain of custody is to be completed by the laboratory with a specific location for receipt, signature and notation whether the specimen seal was intact, that portion of the form was not completed. Also, uncompleted were sections 6 and 7of the form; these sections were to be completed by the Medical Review Officer (MRO), certifying the results of the primary and split specimens.

Exhibit 3 does not contain the actual test results. Instead, another faxed form titled, "Controlled Substance Test Report" was received as Exhibit 4. This form was apparently faxed from "Aurora Health Care-Choice Point" in Bollingbrook, Illinois reflecting that the collection site was "Aurora Medical Center - Lakeland." The form lists the test as a "NON-DOT" with the laboratory name, ACL Laboratories. S.B. Hoffman is listed as the MRO with notation that, "Positive tests confirmed using gas chromatography/mass spectrometry."

In explaining the department's expectation related to establishing the validity of a drug test result, page 5 of the Disputed Claims Manual, Volume 3, Part VII, Chapter 2, Section III, Drug Testing part b, (dated April 9, 2007), provides, in relevant part:

Additionally, the positive test result must be valid. In order for the positive test result to be valid, the test must have been conducted by a laboratory certified by the U.S. Dept of Health and Human Services. . . . The labs on the certified lists conducted their tests within the mandatory guidelines concerning:

The commission has addressed the reliability and competency of such reports in numerous decisions. When the reports do not meet these standards, they are hearsay and an "employer may not rely solely upon hearsay to establish a critical fact to its case." Hackney v. City of Jefferson, UI Dec. Hearing No. 01005575JF (July 30, 2002). In the following cases, the commission refused to find the purported result of drug and alcohol tests and reports valid:

(1) where the record lacked any certification or credentials from the lab analyst who performed the test, as expressly required by the department's form, and no information from the lab was included in the employer's materials other than the Federal Register's certification of the lab facility, Driessen,

(2) where the medical review officer who signed the drug forms lacked firsthand knowledge of the circumstances surrounding the gathering and testing of the employee's sample, Seabrooks v. Geon Co., UI Dec. Hearing No. 00604875MW (LIRC March 1, 2001), and

(3) where the record lacked a signed certification from the laboratory performing the drug testing analysis, failing to establish that the proper chain of custody procedures were followed, 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, and the materials submitted by the employer failed to establish whether a confirmatory test was ever performed. Shada v. Hondo Inc, UI Dec. Hearing No. 99602009RC (LIRC June 11, 1999),

In this case, the two reports and accompanying forms offered by the employer raise many of the same concerns regarding reliability standards set forth above. Most importantly and fatal to the competency of the reports is the fact that there is no laboratory or analyst certification or credentials. Additionally, the chain of custody is questionable; the laboratory certification appears to be by an individual, Ms. Register, without firsthand knowledge or supervision of the laboratory testing. Ms. Register completed the laboratory certification, omitting any specific results and the laboratory form, with the name of another individual as the MRO, reflects a Bollingbrook, Illinois address. As such, the record is unclear as to how Ms. Register could actually "attest to the accuracy of the information provided" as required by the departmental form. These failures to meet the basic reliability standards, together with the employee's denials that he used marijuana, leads to the commission's conclusion that the record lacks any competent evidence to establish that the employee was in violation of the employer's drug and alcohol policy on the day of the accident.

Thus, the remaining issue for the commission is whether the employee's behavior, which resulted in damage to the employer's door on March 9 constituted misconduct connected with the employment.

In analyzing cases involving "preventable accidents" the commission has consistently held that the question of misconduct in these types of cases is a question of degree. Hochstetler v. Bernicks Pepsicola of Dresser Inc., UI Dec. Hearing No. 01201619EC (LIRC February 13, 2002) (citing Derezinski v. Wisconsin Express Lines, UI Dec. No. 89-403256GB, (LIRC March 23, 1990)).

To support a misconduct conclusion, the question is whether the conduct is gross negligence or conduct beyond ordinary negligence. See Hochstetler. Gross negligence is negligence in instances so egregious as to be tantamount to intentional failures by an employee. Malecki v. Best Buy Stores, Ltd. Ptrshp., UI Dec. Hearing No. 98201180EC (LIRC, January 14, 1999).

In this case, the employee's behavior was isolated and no evidence of prior warnings was introduced. In this context, while it may have been poor judgment and ordinary negligence for the employee to use an indoor forklift to take something outside without checking to make sure the overhead door had been raised completely, the commission does not find that this rises to the level of gross negligence.

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 reversed. Accordingly, the employee is eligible for benefits beginning in week 11 of 2007, if otherwise qualified.

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

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM DECISION

The commission did not confer with the administrative law judge prior to reversing the decision. The reversal is not based upon a differing credibility assessment. Instead, the commission's reversal is based upon a differing legal conclusion regarding the sufficiency of the drug test reports. While the reports were received into evidence, they still needed to meet the standards of reliability set forth in the statutes or to fall within the exclusions or exceptions to hearsay. The reports failed for the reasons set forth above. In this case, as in Martinez v. J.L. French Corp., UI Dec. Hearing No. 07400672SH (LIRC, August 30, 2007), the commission finds that it is an employer's responsibility to ensure that the reports are competed as directed and that the collection and testing procedures it or its agent uses are sufficiently reliable upon which to base a factual finding.


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