IN THE COMMONWEALTH COURT OF PENNSYLVANIA Brian J. Butz

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brian J. Butz,
Petitioner
v.
Unemployment Compensation
Board of Review,
Respondent
BEFORE:
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: No. 681 C.D. 2014
: Submitted: November 14, 2014
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HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN
FILED: January 16, 2015
Brian J. Butz (Claimant) petitions for review of the March 27, 2014,
order of the Unemployment Compensation Board of Review (UCBR) reversing the
decision of a referee to grant Claimant unemployment compensation (UC) benefits.
The UCBR determined that Claimant was ineligible for UC benefits under section
402(e.1) of the Unemployment Compensation Law (Law)1 due to his discharge from
work for failing a drug test in violation of Employer’s substance abuse policy. We
affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e.1). Section 402(e.1) of the Law was added by the Act of December 9, 2002, P.L. 1330.
Claimant was employed as a control room operator by Buzzi Unicem
USA (Employer) from February 15, 2005, through April 3, 2013. Employer has a
substance abuse policy that prohibits the use of illegal drugs and permits random drug
testing.
Employer’s substance abuse policy states that an employee who tests
positive for drugs can report to work after participation in and release from a
rehabilitation program. Once the employee returns to work he is retested. If the
employee fails the subsequent test, he is discharged. Claimant was aware or should
have been aware of Employer’s substance abuse policy. (UCBR’s Findings of Fact,
Nos. 1-4.)
On January 29, 2013, Claimant failed a drug test because his results
were returned as “specimen substituted.” On February 6, 2013, Employer advised
Claimant that he would be drug-tested. Claimant “punched out” of work and did not
take a drug test that day. On February 9, 2013, Claimant failed a second drug test
because the results were returned as diluted.
On February 15, 2013, Employer
advised Claimant that he would be drug-tested a third time; rather than take the test,
Claimant left Employer’s facility without authorization. Also on February 15, 2013,
Employer suspended Claimant and informed him that he needed to attend the
employee assistance program. Claimant attended the program on February 21 and
February 25, 2013, and was then released from the assistance program. On February
27, 2013, Claimant was drug-tested for a third time; he tested positive for an illegal
form of amphetamine. A retest of Claimant’s specimen confirmed the test results.
On April 3, 2013, Employer discharged Claimant for failing a drug test. (Id., Nos. 516.)
2
Claimant applied for UC benefits, which the local service center denied.
Claimant appealed to the referee, who held a hearing on July 7, 2013. At this
hearing, the referee told Employer’s witness that he could submit the chain-ofcustody form for the test samples into evidence, but that he must first show the form
to Claimant’s counsel. (N.T., 7/12/13, at 6.) Claimant’s counsel reviewed the form
and then asked Employer’s witness several questions, which he answered. (Id.)
Employer’s witness did not enter the chain-of-custody form into evidence. On July
15, 2013, the referee reversed the service center’s decision, concluding that Claimant
was not ineligible for UC benefits under section 402(e.1) of the Law because
Employer did not establish that Claimant failed a drug test. (Referee’s Decision at 2.)
Employer appealed to the UCBR. On December 3, 2013, the UCBR
entered an order scheduling a remand hearing for the sole purpose of allowing
Employer “an opportunity to submit into the record the chain-of-custody form that
was discussed at the previous hearing.”2 (UCBR’s Hearing Order at 1.) At the
remand hearing, Employer presented testimony from a nurse and a compliance
coordinator at St. Luke’s Hospital (St. Luke’s), where Claimant submitted his
specimens for the drug tests. Claimant submitted the results from an independent lab.
On March 27, 2014, the UCBR issued a decision reversing the referee and denying
UC benefits. Claimant now appeals to this court.3
2
The UCBR also instructed the referee to consider the following question: “Does either
party have any evidence on whether Wellbutrin shows up on drug tests?” (Remand Memo at 1.)
The UCBR’s hearing order does not contain this language.
3
Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
3
Contrary to Claimant’s assertion, the UCBR, not the referee, is the
ultimate factfinder and may make credibility determinations. Peak v. Unemployment
Compensation Board of Review, 501 A.2d 1383, 1388 (Pa. 1985). The UCBR may
make different credibility determinations than the referee “so long as the [UCBR] is
subject to judicial review on the substantial evidence test and is required to explain its
decision in sufficient detail to permit meaningful appellate review.” Id. at 1389.
‘“The appellate court’s duty is to examine the testimony in the light most favorable to
the party in whose favor the [UCBR] has found, giving that party the benefit of all
inferences that can logically and reasonably be drawn from the testimony, to see if
substantial evidence for the [UCBR]’s conclusion exists.”’ Tronzo v. Unemployment
Compensation Board of Review, 522 A.2d 544, 545 (Pa. 1987) (citations omitted).
Claimant argues that the UCBR erred in concluding that Employer met
its burden of proving that Claimant failed a drug test in violation of Employer’s
substance abuse policy. We disagree.
Section 402(e.1) of the Law provides that an employee shall be
ineligible for UC benefits for any week “[i]n which his unemployment is due to his
discharge . . . due to failure to submit and/or pass a drug test conducted pursuant to an
employer’s established substance abuse policy, provided that the drug test is not
requested or implemented in violation of the law or of a collective bargaining
agreement.” 43 P.S. §802(e.1). To meet its initial burden, “it is sufficient for the
employer to establish the substance abuse policy and its violation.”
Dillon v.
Unemployment Compensation Board of Review, 68 A.3d 1054, 1057 (Pa. Cmwlth.
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2013). If the employer satisfies this initial burden, then the burden shifts to the
employee to show that the substance abuse policy was in violation of the law or a
collective bargaining agreement. Id. at 1056 n.4.
Here, Claimant knew that Employer had a substance abuse policy
prohibiting illegal substances and permitting random drug testing. (N.T., 7/12/13, at
9.) Employer testified that its substance abuse policy is contained in Claimant’s
union contract, which Claimant did not dispute. (Id., at 4, 9.) In proving that
Claimant violated the substance abuse policy, Employer, at the remand hearing,
entered its chain-of-custody form and lab reports into evidence and discussed how
Claimant’s specimens were collected and tested. ‘“As long as the authenticating
witness can provide sufficient information relating to the preparation and
maintenance of the records to justify a presumption of trustworthiness of the business
records of a company, a sufficient basis is provided to offset the hearsay character of
the evidence.”’ O’Brien v. Unemployment Compensation Board of Review, 49 A.3d
916, 919 (Pa. Cmwlth. 2012) (citations omitted). Claimant had signed the chain-ofcustody form, acknowledging that the specimen he gave to the nurse at St. Luke’s
was sealed into two different tamper-proof containers in his presence and that the
information affixed to each container was correct. (N.T., 12/23/13, at 14 & Ex. B11.)
Each container was labeled with the chain of custody specimen ID 2016986490. (Id.)
The nurse who administered the test testified that she would only accept the
subsequent lab results for those samples if the specimen IDs for the lab results
matched the chain of custody specimen IDs. (Id., at 6.) The chain-of-custody form
states that the specimens’ seals were intact when they arrived for testing at the lab.
(Id., at 14 & Ex. B11.) St. Luke’s compliance coordinator testified that she requested
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the lab results. (Id., at 16.) The results of the test and retest of the specimens marked
2016986490 indicated a positive result for methamphetamine-D, an illegal
amphetamine. (Id., at 16 & Ex. B12, B13, R. Item No. 4.)
Claimant argues that the positive test results could not have come from
his specimens because the specimens did not test positive for bupropion. At the
remand hearing, Claimant testified that bupropion is the active drug in Wellbutrin, a
prescription drug he was prescribed and claimed to be taking at the time of the drug
tests. (Id., at 30.) Employer acknowledged that its drug test is only designed to
detect certain illegal substances, not Wellbutrin or its component drug bupropion.
(Id., at 21, 23.) Claimant introduced the results of a different lab’s retest of the
specimen, which specifically tested for bupropion. (Id., at 32.) That lab’s results
showed the specimen was negative for bupropion.4 (Id., at 32 & Ex. B14.) However,
Claimant did not offer expert testimony or other evidence suggesting that bupropion
is the active drug in Wellbutrin.
The UCBR discredited Claimant’s testimony that the specimens, which
tested positive for an illegal amphetamine, were not his. (UCBR’s Decision at 2.)
Moreover, Claimant admitted that he could not point to any flaw in the chain of
custody or the testing process other than the fact that the specimens did not test
positive for bupropion. (N.T., 12/23/13, at 39, 41.) Thus, the record supports the
UCBR’s determination that Claimant failed a drug test by testing positive for an
4
The test results were also positive for methamphetamine-D. (N.T., 12/23/13, at 32 & Ex.
B14.)
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illegal amphetamine, a violation of Employer’s substance abuse policy. Claimant
failed to show that Employer’s drug tests violated the law or any collective
bargaining agreements. Therefore, the UCBR properly denied Claimant UC benefits
under section 402(e.1) of the Law.
Accordingly, we affirm.
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ROCHELLE S. FRIEDMAN, Senior Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brian J. Butz,
Petitioner
v.
Unemployment Compensation
Board of Review,
Respondent
:
: No. 681 C.D. 2014
:
:
:
:
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ORDER
AND NOW, this 16th day of January, 2015, we hereby affirm the March
27, 2014, order of the Unemployment Compensation Board of Review.
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ROCHELLE S. FRIEDMAN, Senior Judge