Bowers v. Unemployment Compensation Board of Review, 165 A.3d 49

Background

Brent L. Bowers (Claimant) worked as a miner for GMS Mine Repair & Maintenance and signed the employer’s written substance-abuse (drug) policy authorizing random drug testing.
On August 3, 2015, Claimant submitted to a random urine drug test; both lab reports (split samples) later returned positive for marijuana.
Employer suspended and then discharged Claimant on August 26, 2015 for violating the drug policy; Claimant filed for unemployment compensation (UC).
The UC Service Center, a Referee, and the Unemployment Compensation Board of Review (UCBR) denied benefits under Section 402(e.1) of the UC Law, finding Employer proved existence of the policy and Claimant’s violation.
Claimant sought to introduce an August 4, 2015 rehabilitation-program drug test and a letter showing a negative result but failed to submit those documents to the Referee five days before the telephone hearing as required by Department regulations; the Referee excluded them.
The Commonwealth Court affirmed the UCBR, holding the exclusion was proper under the rules and that even if admitted the documents would likely be hearsay or insufficient to rebut Employer’s proof.

Issues

Issue	Bowers' Argument	Employer/UCBR Argument	Held
Whether Claimant is ineligible for UC under Section 402(e.1) after testing positive for drugs	Bowers argued a contemporaneous Program test (Aug 4) was negative and the UCBR capriciously disregarded that exculpatory evidence	Employer showed an established drug policy and positive split-sample results; UCBR argued Bowers failed to properly present the Program results and regulations permit exclusion	Court held Claimant ineligible under §402(e.1); Employer met its burden and Claimant failed to timely/admissibly present contrary evidence
Whether exclusion of Claimant’s Program test and letter was erroneous	Bowers contended the evidence was critical and exclusion was a mere technicality that prevented exoneration	UCBR/Employer relied on Department regulations requiring documents be submitted in advance of telephone hearings and that unsubmitted documents may not be admitted without consent	Court held exclusion lawful under 34 Pa. Code §§101.130(e) and 101.131(h); not capricious or a due-process violation
Whether the drug policy or testing violated law or a collective bargaining agreement (defense under §402(e.1))	Bowers did not assert the policy violated law or a CBA; he focused on alternate test results	Employer maintained testing complied with its policy, chain of custody, and MRO procedures	Court held Claimant bore the burden to show the policy violated law/CBA and did not do so; therefore §402(e.1) applies
Admissibility and probative value of Program test (accuracy/reliability)	Bowers argued the Program test demonstrated he did not use marijuana	Employer and UCBR noted authentication, chain-of-custody, comparability of labs/cutoffs, and hearsay concerns	Court held even if admitted the Program report would likely be hearsay/unverified and would not necessarily overcome Employer’s authenticated lab results

Key Cases Cited

UGI Utils., Inc. v. Unemployment Comp. Bd. of Review, 851 A.2d 240 (Pa. Cmwlth.) (employer must prove existence of policy and claimant’s violation to trigger §402(e.1))
Greer v. Unemployment Comp. Bd. of Review, 4 A.3d 733 (Pa. Cmwlth.) (burden on claimant to show employer policy violates law or CBA under §402(e.1))
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth.) (UCBR as ultimate fact-finder; will not be overturned if supported by evidence)
Spencer v. City of Reading Charter Bd., 97 A.3d 834 (Pa. Cmwlth.) (definition of capricious disregard of evidence)
Furnari v. Workers’ Comp. Appeal Bd. (Temple Inland), 90 A.3d 53 (Pa. Cmwlth.) (hearsay principles and limits on relying on unauthenticated documents)
Philadelphia Gas Works v. Unemployment Comp. Bd. of Review, 671 A.2d 264 (Pa. Cmwlth.) (court cannot discard authenticated lab results in favor of uncorroborated self-serving testimony)