
    Herbert HASTE, Appellant, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and Oakwood Intermediate Care Facility, Appellees.
    Court of Appeals of Kentucky.
    Aug. 10, 1984.
    Robert H. Brown, Appalachian Research & Defense Fund, Somerset, for appellant.
    Stanley A. Stratford, Pat Harris, Cabinet for Human Resources, Frankfort, for ap-pellees.
    Before REYNOLDS, COOPER and COMBS, JJ.
   COMBS, Judge.

Herbert Haste was denied unemployment compensation benefits on the ground that he was discharged for misconduct by reporting to work under the influence of alcohol.

Shortly after reporting to work, a fellow employee complained to their supervisor that she smelled alcohol on Mr. Haste’s breath and that he made improper remarks to her. Following this complaint a meeting was held with Mr. Haste. He agreed to submit to blood analysis to determine the percentage of alcohol in his blood. He was discharged as a result of this test.

We agree with the appellant that the results of the test were incompetent evidence. These results were introduced by the employer’s personnel officer. He testified that he was not present when any part of the test was performed and had little, if any, knowledge of proper testing procedures, or the meaning of the results. It is beyond argument that results of such a test are incompetent when there is no foundation for its admission, no opportunity for cross-examination and no showing of the chain of custody of the blood sample. See McCormick, Evidence § 209 (2d ed. 1972).

The issue before this court is whether the trial court properly applied the “residuum” rule. We find that it did not. This rule is that “findings of an administrative agency will be upheld despite its partial reliance upon incompetent evidence if it also had before it competent evidence which by itself would have been legally sufficient to support the findings.” Big Sandy Community Action Program v. Chaffins, Ky., 502 S.W.2d 526 (1973) at 530.

Without the results of the test, the evidence that Mr. Haste was under influence of alcohol is insufficient to support a finding of misconduct. No one who testified before the board expressed the opinion that Mr. Haste had been using alcohol. The testimony included opinions concerning facts that might lead one to the inference that Mr. Haste was under the influence. The witnesses’ lack of positive expression makes it apparent that the employer was relying on the results of the blood test. As those results are incompetent, it failed in meeting its burden of proof.

The employer has the burden of proof to establish misconduct. Brown Hotel Company v. Edwards, Ky., 365 S.W.2d 299 (1963).

Because the appellant otherwise qualifies for benefits, this court reverses with directions that the trial court remand this case to the unemployment commission for an award of benefits.

REYNOLDS, J., concurs.

COOPER, J., dissents.  