H.J. Raub v. UCBR, H.J. Raub v. UCBR

Claimant Harold J. Raub worked as a truck driver and was involved in an April 27, 2016 accident while driving an employer vehicle.
He gave an initial urine sample on April 28, 2016 that the lab later reported as diluted; employer requested a second observed sample on May 3–4, 2016 per policy and DOT guidance.
Collection protocol required an observer of the same gender as the employee; claimant initially completed the first sample but refused the second after learning a male employee would observe him, leaving the collection site.
Employer terminated claimant for refusing the test under a collective bargaining agreement provision treating failure to submit as just cause for dismissal.
The Service Center and a referee denied unemployment benefits under 43 P.S. §802(e.1); the Board of Review affirmed. Claimant argued on appeal that the second collection was illegal because a woman was present and the Board capriciously disregarded his testimony.
The Commonwealth Court affirmed, holding the Board could credit claimant’s prior admission that only a male observed the second collection and reject his inconsistent hearing testimony alleging a female observer.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether claimant is ineligible for benefits under 43 P.S. §802(e.1) for refusing a drug test	Raub argued the requested observed collection was unlawful because a woman was present, violating DOT rules, so refusal was justified	Employer argued policy, DOT rules, and the CBA required testing and an observed male observer was used; claimant refused without lawful excuse	Held: Board’s facts supported that only a male observed; testing complied with law and CBA; claimant ineligible under §402(e.1)
Whether the Board capriciously disregarded claimant’s testimony that a woman was present	Claimed the Board ignored his hearing testimony that a woman was present	Board noted claimant’s written questionnaire admitted only a male was present and could credit that admission over inconsistent testimony	Held: No capricious disregard; Board permissibly resolved credibility against claimant
Whether claimant bore the burden to prove the test violated law or CBA	Argued employer’s request violated DOT reg. §40.67(g) making refusal lawful	Employer showed an established policy and testing consistent with DOT and CBA; burden on claimant to prove illegality	Held: Claimant failed to meet burden of production and persuasion to show illegality
Standard of review for Board’s factual findings	N/A (procedural)	N/A	Held: Court reviews for substantial evidence and will defer to Board credibility determinations

Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207 (Pa. Cmwlth. 1988) (credibility determinations are for the Board)
Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 1977) (appellate review gives benefit of inferences to the prevailing party before the Board)
Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338 (Pa. Cmwlth. 2008) (only need substantial evidence to support findings actually made)
Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841 (Pa. Cmwlth. 1987) (claimant bears burden to show employer’s testing violated law or CBA)
Greer v. Unemployment Compensation Board of Review, 4 A.3d 733 (Pa. Cmwlth. 2010) (employer meets burden by showing established substance abuse policy and claimant’s violation)
Havrilchak v. Unemployment Compensation Board of Review, 133 A.3d 800 (Pa. Cmwlth. 2015) (admissions in claimant questionnaires can constitute substantial evidence)