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

CHARLES R DIENBERG, Employee

POSTAL OFFICE HILLDALE STATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003837MD


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer for approximately seven years as a truck driver. His last day of work was November 18, 2006 (week 46). He resigned his position on January 22, 2007 (week 4).

On June 19, 2006, the employee was given a random drug test that came back positive for marijuana. The employee denied having smoked marijuana.

The employer issued a Notice of Proposed Removal on June 26, 2006. However, the employee appealed the proposed discharge through the grievance process and was placed on a paid leave pending the outcome of the appeal. The paid leave ended on November 18, 2006. The employer denied the grievance at Step 2 of the process and, on January 22, 2007, the employee signed a separation agreement ending his employment.

The initial issue to decide is whether the employee quit or was discharged.

The parties agree that, after the employee's appeal was denied, the employer gave the employee the choice of quitting or being fired. The employee did not have the option of retaining his job. Under these circumstances, the separation is considered a discharge.

The next question to decide is whether the employee's discharge was for misconduct connected with his employment.

The employee was discharged for a positive drug test. The employee has emphatically denied drug use, and the employer had the burden of providing reliable evidence to the contrary. At the hearing the employer presented only Part I of the department's two-part certified drug testing report, the portion pertaining to obtaining and sealing the specimen. In lieu of Part II, the employer presented an alternate form. The document submitted by the employer does not indicate what test was conducted or what procedure was used in conducting the test. More importantly, the form does not indicate that the test was performed by a certified drug testing laboratory, nor are the test results certified by the laboratory analyst performing the test. No copy of the testing laboratory's and analyst's certification and credentials is provided.

The commission has consistently held that the drug testing report must be properly certified in order to be reliable and has rejected alternate forms submitted by employers in lieu of the department's certified reports. See, Collins v. Westaff (USA) Inc., UI Dec. No. 99604783MW (LIRC November 18, 1999). Where the testing form is not properly certified it cannot substitute for the live testimony of the individual who performed the testing. Driessen v. V & S Midwest Carriers Corp., UI Dec. No. 06401602AP (LIRC, Sept. 29, 2006.) Because the employer presented no certified evidence of a positive test result, it failed in its burden of demonstrating that the employee engaged in unlawful drug use.

The commission, therefore, finds that in week 4 of 2007, the employee was discharged and 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 4 of 2007, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed November 30, 2007
dienbch . urr : 164 : 1 MC 652.4

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge prior to reversing. The commission's reversal is not based upon a differing assessment of witness credibility, but is as a matter of law.


cc:
Post Office - Madison (Madison, Wisconsin)
US Postal Service (St. Louis, MO)


 

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