Opinion
June 17, 1988.
Unemployment compensation — Wilful misconduct — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Intoxication — Hearsay — Burden of proof.
1. In an unemployment compensation case review by the Commonwealth Court of Pennsylvania is to determine whether constitutional rights were violated, an error of law was committed or findings of fact were unsupported by substantial evidence. [171]
2. An admission by an unemployment compensation claimant that a record sheet indicated that tests given him for intoxication were positive is not evidence of his intoxication when he challenges the validity of the tests. [171]
3. An opinion by a co-worker that an unemployment compensation claimant's speech was slurred and a hearsay report of tests for intoxication to which an objection was made do not constitute substantial evidence of a violation of an employer rule regarding intoxication on the job such as to constitute wilful misconduct precluding receipt of benefits by the claimant upon his dismissal for such conduct. [171-2]
5. The burden is upon an employer in an unemployment compensation case to prove an assertion that a dismissal of a claimant was for wilful misconduct. [172]
Judge PALLADINO dissented.
Submitted on briefs February 4, 1988, to Judges CRAIG and PALLADINO, and Senior Judge BARBIERI, sitting as a panel of three.
Appeal No. 432 C.D. 1987, from the Order of the Unemployment Compensation Appeal Board, in the case of In Re: Claim of Nathaniel McKinney, No. B-251237-B
Application with the Office of Employment Security for unemployment compensation benefits. Benefits denied. Applicant appealed. Referee awarded benefits. Employer appealed to the Unemployment Compensation Board of Review. Award affirmed. Employer filed petition for reconsideration with the Unemployment Compensation Board of Review. Previous order vacated. Benefits denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Michael Goldberg, Central Pennsylvania Legal Services, for petitioner.
No appearance for respondent.
Jeffrey Ivan Pasek, Cohen, Shapiro, Polisher, Shiekman Cohen, for intervenor, Yellow Freight System, Inc.
Nathaniel McKinney (Claimant) appeals an order of the Unemployment Compensation Board of Review (Board) denying him benefits pursuant to Section 402(e) of the Unemployment Compensation Law, on the grounds he had been terminated for willful misconduct.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).
Claimant was employed by Yellow Freight System, Inc. (Employer) for thirteen years. On April 4, 1986; Employer's linehaul manager noticed that Claimant's speech was slurred and that Claimant was "floating around the office kidding around with people" at the time when he should have been working. The Employer had a policy prohibiting employees from being under the influence of alcohol or drugs at work. Claimant agreed to submit to both a blood and urine test for alcohol on April 4, 1986, and was discharged in light of the test results.
Claimant applied for Unemployment Compensation benefits. On the Summary of Interview sheet, Claimant stated that he was asked to submit to a blood and urine test and that "[t]he tests were positive." The Office of Employment Security denied benefits on account of willful misconduct. On appeal, the referee reversed, holding there was no competent record evidence that Claimant was under the influence of alcohol on April 4, 1986.
At the hearing before the referee, the Employer had attempted to introduce a report from DrugScan, Inc. which contained the results of the blood and urine tests. Counsel for Claimant objected to the admission of the report and the referee sustained the objection on the basis that the report was hearsay. The Employer did not produce any other medical evidence to show Claimant was intoxicated on April 4, 1986, and Claimant denied that he was.
In order to avoid a future remand, the referee directed that the report from DrugScan, Inc. was to be made part of the record but sustained Claimant's objection to the report as hearsay.
The Board initially affirmed the referee's decision to grant benefits in a decision dated July 25, 1986. The Employer requested that the Board grant reconsideration and permit it to submit additional evidence at a remand hearing. By order dated August 22, 1986, the Board vacated its initial decision. On January 30, 1987, after hearing oral argument, the Board entered an order reversing the referee and denying benefits. This appeal followed.
Claimant contends that the Board erred in concluding that the Employer had met its burden of proving Claimant was guilty of willful misconduct and improperly granted reconsideration. Pursuant to Section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704, our scope of review is limited to determining whether there has been a violation of constitutional rights, an error of law has been committed, or whether the findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commw. 92, 525 A.2d 841 (1987).
We agree that the Board erred in finding that there was substantial evidence to support a conclusion of willful misconduct. The Board's decision on reconsideration states that the linehaul manager's personal observations of Claimant and Claimant's admission on the Summary of Interview sheet that the tests were positive, establish that Claimant was under the influence of alcohol on April 4, 1986. The Board further states that the hearsay report of the test results "merely buttresses the other competent evidence of record."
Although Claimant admits on the Summary of Interview sheet that the tests were positive, he goes on to question the validity of the test results, maintaining that he was "set up". As Claimant is contesting the validity of the test, his statement that they were positive cannot be used as an admission supporting a finding that he was under the influence of alcohol on April 4, 1986.
The linehaul manager testified that Claimant's mannerisms led him to believe "there was a problem physically." He later added that he "felt it was a drug related problem." Claimant's statement in the Summary of Interview sheet coupled with the linehaul manager's observations do not constitute substantial evidence to support a finding that Claimant was under the influence of alcohol in violation of the Employer's rule. The only other evidence which could support such a finding is the report from DrugScan, Inc. which was objected to and properly ruled to be inadmissible hearsay. As we stated in Walker v. Unemployment Compensation Board of Review, 27 Pa. Commw. 522, 367 A.2d 366 (1976), properly objected to hearsay is not competent evidence which will support a finding by the Board.
Notes of Testimony from May 8, 1986, referee's hearing (N.T.) at 6.
N.T. at 9.
The Employer's rule prohibiting employees from being under the influence of drugs or alcohol while on duty is undoubtedly reasonable but the Employer bears the burden of proving willful misconduct on the part of Claimant. American Process Lettering, Inc. v. Unemployment Compensation Board of Review, 50 Pa. Commw. 272, 412 A.2d 1123 (1980). This burden could have easily been met if the Employer had presented competent testimony as to the results of Claimant's blood and urine tests. However, the Employer failed to present any competent evidence which would support the Board's finding. Accordingly, we are constrained to reverse the order of the Board denying benefits.
In light of this result, we need not address the issue of whether the Board lacked good cause to grant reconsideration.
ORDER
AND NOW, this 17th day of June, 1988, the order of the Unemployment Compensation Board of Review at Decision No. B-251237-B, dated January 30, 1987, denying benefits to Nathaniel McKinney is reversed.
Judge PALLADINO dissents.