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

GREGORY E SHADA, Employe

HONDO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602009RC

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 employe is eligible for benefits beginning in week 8 of 1999, if otherwise qualified.

Dated and mailed June 11, 1999
shadagr.usd : 164 : 4 MC 651.4  MC 652.4

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer's agent challenges the appeal tribunal's conclusion that the employer failed to establish the employe was aware of its policies regarding drug testing. The employer's agent maintains that the appeal tribunal did not ask the employer's witness whether the policy was posted and, further, that the commission has found misconduct regarding intoxicants, even when the employer's rules were not formally presented. In support of this assertion, the employer's agent cites the case of Brophy v. Cornell Paperboard Products Co., Inc., & Ind. Com. (Circuit Court, 9/15/95), in which the court held that sobriety in the workplace is a standard of behavior an employer has a right to expect of its employes with or without a rule. In this case, however, the employe was not discharged for using or being under the influence of intoxicants at the workplace, but because he tested positive for the presence of intoxicants in his system. The department's policy provides that, in order to discharge an employe for a positive result on a drug test, the employer must have a reasonable rule that prohibits both on duty and off duty use of illegal drugs, is known to the employe, is provided in writing, and spells out the consequences of a positive test result. UI Benefits Manual, Vol. 3, Part VII, Chapter 2, January 1999, Page 14. Here, the employer failed to demonstrate that its policy was provided to the employe in writing, nor did it establish that it was otherwise made known to him. While the administrative law judge may not have specifically asked if the employer's policy was posted, it was the employer's burden to establish that its policy was made known to the employe, and it failed to do so.

In concluding that no misconduct was established the commission further notes that, while the employer presented evidence of a positive test result, it failed to establish that the test result was valid. The record contains a signed certification by the laboratory taking the specimen, but contains no signed certification from the laboratory performing the drug testing analysis. Consequently, it was not established that the proper chain of custody procedures were followed. Indeed, given that the patient's name and social security number that appear on the final drug testing report do not match the employe's name and social security number, there is no basis to hold that the employe actually tested positive for illegal drugs, as the employer asserts. Finally, in addition to the deficiencies mentioned above, the materials submitted by the employer fail to establish whether a confirmatory test was ever performed. Under all of the circumstances, the commission must conclude that the employer failed in its burden of establishing that the employe was discharged for misconduct connected with his employment. Accordingly, the appeal tribunal decision is affirmed.

cc: Elizabeth Marshall
c/o Personnel Planners Inc

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