Architectural Testing, Inc. v. Unemployment Compensation Board of Review

940 A.2d 1277, 2008 Pa. Commw. LEXIS 35

• Court: Commonwealth Court of Pennsylvania
• Decided: January 24, 2008
• Status: Published

Opinions

OPINION BY

Judge COHN JUBELIRER.

Architectural Testing, Inc. (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board) reversing the decision of an Unemployment Compensation (UC) Referee (Referee) which denied benefits to George W. Yohe, II (Claimant) under Section 402(e.1) of the Unemployment Compensation Law (Law).¹ Employer argues that the Board misconstrued Section 402(e.l) of the Law, which relates to a claimant’s ineligibility for benefits “due to failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy.” 43 P.S. § 802(e.1).

Claimant worked for Employer since November 2001. Claimant’s position involved construction-type work on mechanical lifts at up to 60 feet in height, and in close proximity to other workers. (Referee Hr’g Tr. at 5.) Employer had an established substance abuse policy which stated in pertinent part:

The use, possession, or distribution of alcohol or illegal drugs or the illegal distribution of legal drugs is not tolerated on company property, in company vehicles, or at any job site. Any employee aware of or suspicious of abuse to [sic] this policy is obligated to report the issue to management immediately.

A drug & alcohol screening is performed for all newly hired employees and all employees involved in an accident in which property damage, personal injury, or the potential for personal injury has occurred. Additionally, a drug & alcohol screening may be requested from any employee that demonstrates cause for concern regarding use of drugs or alcohol.

Any employee whose screening detects use of an illegal drug may be immediately terminated. ...

(Employer’s Drugs, Alcohol, and Mental Fitness Policy, UC Service Center Ex. 13, R. Item No. 4 (emphasis added); See Referee Hr’g Tr. at 3, 5-8, 12, July 14, 2006.) On May 30, 2006, Employer discharged Claimant for failing to submit to a drug test.

Claimant applied for UC benefits, which the UC Service Center denied, finding that Claimant was ineligible under Section 402(e.l). Claimant appealed and, after a hearing, the Referee affirmed the denial of benefits. Claimant appealed to the Board, which reversed the Referee and granted benefits to Claimant. In its Decision and Order, the Board made the following findings of fact:

1. The claimant was last employed as a builder II with Architectural Testing, Incorporated, from November 25, 2001 to May 30, 2006, at an hourly rate of $14.50.

2. Pertinent language from the employer’s policy manual relative to drugs, alcohol and mental fitness states, “Additionally, a drug & alcohol screening may be requested from any employee that demonstrates cause for concern regarding use of drugs or alcohol. Any employee whose screening detects use of an illegal drug may be immediately terminated. Any other drug or alcohol detection may result in appropriate disciplinary action, up to and including termination”.

3. The claimant did undergo a drug screening test in December of 2005 after an accident. Henry Taylor, president of the employer (hereinafter “Taylor”), testified that said test was mandatory pursuant to the employer’s policy manual. A minor accident occurred involving the claimant and he voluntarily submitted to a drug screen test, which initially was reported as invalid. The claimant was notified to retake the test, which he did; the specimen was negative for drugs and/or alcohol.

4. The employer testified that the events leading up to the claimant’s termination on May 30, 2006 included the following: complaints from employees and customers relative to the claimant resulted in the [sic] Taylor feeling that he could require a drug screen test on the claimant because the aforementioned constituted cause for concern in his mind.

5. On May 30, 2006, the claimant was confronted by Dan Detzel (hereinafter “Detzel”), his supervisor, who told the claimant that he would be asked to take a drug test. Detzel also said that he had no reason to believe the claimant was on drugs.

6. Thereafter, when asked by Taylor to submit to a drug screen test, the claimant refused because he believed that he was being harassed.

7. Despite the employer having no written policy in place for disciplinary actions relative to an employee refusing to submit to a drug screen test, the claimant was still discharged.

8. Throughout the claimant’s employment, he had not been disciplined. Taylor testified that the claimant was a good employee and performed his job well.

(Board’s Decision & Order, Findings of Fact ¶¶ 1-8.) The Board determined that because Employer’s substance abuse policy did not provide for disciplinary action for an employee who refused to submit a drug test, Section 402(e.1) did not render Claimant ineligible for benefits. (Board’s Decision & Order at 2.) The Board also found that Employer’s concerns, which led to the drug test, “were based on speculation and hearsay reports.” (Board’s Decision & Order at 2.) The Board therefore reversed the Referee and granted benefits to Claimant. Employer now appeals to this Court.²

Employer argues that Claimant’s refusal to submit to a drug test, despite an established policy known to Claimant allowing Employer to request a drug test upon reasonable grounds for suspicion, constituted willful misconduct under Section 402(e.l) of the Law. Section 402(e.l) states that a claimant will not be eligible for UC benefits if he is unemployed “due to failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy_” 43 P.S. § 802(e.1). This case turns on the phrase “conducted pursuant to an employer’s established substance abuse policy.” The Board appears to interpret this phrase to mean that in order to terminate an employee for refusing a drug test, the employer must have an established policy which explicitly sets out the consequences for refusal of a drug test. However, this interpretation goes against the plain meaning of the Law.

Under the plain meaning of Section 402(e.l) of the Law, an employer’s established substance abuse policy only needs to set forth when an employee may be required to submit to a drug test. This section, by its language, does not require the policy to set forth the consequences for refusal of a drug test. Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a), states “[wjords and phrases shall be construed according to rules of grammar.... ” Looking at Section 402(e.l) grammatically, it is clear that the phrase “conducted pursuant to an employer’s established substance abuse policy” modifies the term “drug test.” This phrase does not refer to the refusal to take the test, or to the termination of employment. The Board’s reading of the statute adds an extra requirement that does not appear in the text itself. Had the legislature wished to require that employers’ substance abuse policies set forth the consequences for failure to submit or pass drug tests, it could have done so. Instead, it only required that the drug test be conducted pursuant to an established policy.

This Court has previously recognized that the enactment of Section 402(e.l) marked a change in the law:

Willful misconduct has long been construed to include the violation of a work rule, including a work rule prohibiting the use of drugs at the workplace.... It must be that the Legislature meant to effect some change in the Law when it enacted Section 402(e.l). The Board’s argument would render Section 402(e.l) mere surplusage; we are charged, however, to give effect to all the language in a statute....

UGI Utils., Inc. v. Unemployment Compensation Board of Review, 851 A.2d 240, 245 (Pa.Cmwlth.2004) (citations omitted). In UGI Utilities, this Court held that the Board erred, in part, because the Board analyzed a discharge pursuant to an employee’s failure of a drug test under Section 402(e), rather than 402(e.l). Id. This Court recognized that after the passage of Section 402(e.l), discharges pursuant to failure of a drug test should no longer be analyzed as if they were willful misconduct cases. Id. at 245-47.

The Board, in this case, is shoehorning the requirements of Section 402(e.l) into the older requirements of willful misconduct under Section 402(e). Under the willful misconduct provision, “willful misconduct ... may be established by proof of an employee’s deliberate violation of the employer’s rules.” Rebel v. Unemployment Compensation Board of Review, 692 A.2d 304, 306 (Pa.Cmwlth.1997) (citing Spiropoulos v. Unemployment Compensation Board of Review, 654 A.2d 642 (Pa.Cmwlth.1995)). Under the Board’s reading of Section 402(e.1) — that an employer must not only have an established substance abuse policy that allows for drug testing, but that also provides consequences for the refusal to submit to such testing — the requirements of Section 402(e.l) are essentially no different from Section 402(e). Indeed, in its Decision & Order, the Board is essentially applying the test for willful misconduct that was applied to drug testing cases prior to the enactment of Section 402(e.l). Cf. Rebel (analyzing claimant’s refusal to submit to a random drug test by employer under Section 402(e)); Lindsay v. Unemployment Compensation Board of Review, 789 A.2d 385 (Pa.Cmwlth.2001) (discussing claimant’s failure of an alcohol test and arrival at work visibly intoxicated in the context of Section 402(e)); Artis v. Unemployment Compensation Board of Review, 699 A.2d 849 (Pa.Cmwlth.1997) (analyzing discharge of claimant for failure of a drug test under Section 402(e)); Singleton v. Unemployment Compensation Board of Review, 125 Pa.Cmwlth. 397, 558 A.2d 574 (1989) (discussing claimant’s discharge for failure of a drug test under Section 402(e)). After UGI Utilities, this Court will not now analyze a discharge pursuant to refusal to take a drug test as if it were a willful misconduct case. To accept the Board’s rule that in order to discharge an employee for refusal to submit to a drug test, the employer must have a substance abuse policy which explicitly provides for such discharge would render 402(e.l) redundant given that such a situation would already satisfy the requirements to show willful misconduct.

The Board’s reading of the statute also leads to an absurd, unreasonable result. Section 1922(1) of the Statutory Construction Act of 1972,1 Pa.C.S. § 1922(1), states that “the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.” In this case, we are presented with an employer which has an established substance abuse policy providing for employee drug testing and for discharge of an employee for failure to pass a drug test. Under the Board’s reading of Section 402(e.l), we would reach the absurd result where, in such a situation, an employee who knows he cannot pass a drug test may avoid discharge by simply refusing to take a drug test that the employer is attempting to conduct pursuant to its established substance abuse policy.

Therefore, we hold that in order for a claimant to be rendered ineligible for benefits under Section 402(e.l) of the Law, the employer need only have an established substance abuse policy which permits it to conduct drug tests; the employer’s policy need not explicitly state that an employee may be discharged for refusal to submit to such a test (although well-drafted policies will do so).

Employer also argues that the Board erred in dismissing as hearsay Taylor’s testimony regarding complaints he received about Claimant’s alcohol use and safety. Employer argues that these statements were not hearsay because they were not offered for the truth of the matter asserted. We agree.

The Board urges that these statements are hearsay under the rule set forth in Walker v. Unemployment Compensation Board of Review, 27 Pa.Cmwlth. 522, 367 A.2d 366 (1976).³ This would, of course, be the correct rule to apply if these statements were hearsay. However, they are not. A hearsay statement “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Pa. R. Evid. 801(c). Henry Taylor (Taylor), president of Employer, testified to statements made to him by two employees to the effect that these employees were concerned with Claimant’s job performance and that he might be abusing alcohol.⁴ (Referee Hr’g Tr. at 6). The matter asserted in these statements is that Claimant’s job performance was sub par and that he was abusing alcohol. These statements were offered by Taylor to show that he had cause for concern that Claimant might be abusing drugs. Because the statements were offered to show their effect on Mr. Taylor — that they led him to have cause for concern that Claimant was abusing drugs or alcohol — and not to show that Claimant actually was abusing drugs or alcohol, they were not offered for the truth of the matter asserted and are, therefore, not hearsay. See, e.g., In re Shahan, 429 Pa.Super. 91, 631 A.2d 1298, 1304 (1993) (stating, “[sjince the statement was not admitted for its truth, but rather its effect on the listener, the statement was not hearsay.”) Likewise, statements made by customers to Taylor that they had concerns regarding Claimant’s safety on the job were not offered to show that the customers had concerns about Claimant’s safety or that he was performing his job unsafely, but merely that Taylor had heard these statements and that he, therefore, had concerns himself regarding Claimant’s safety. (See Referee Hr’g Tr. at 6.) Because these statements were not offered to show the truth of the matter asserted they are not hearsay and, therefore, the Board erred in not considering them.

Taking these statements into account, it appears that Employer had “cause for concern,” or reasonable suspicion to request a drug test. In Shaw v. Unemployment Compensation Board of Review, 115 Pa.Cmwlth. 61, 539 A.2d 1383 (1988), this Court found that SEPTA had reasonable suspicion to request that the claimant in that case, a bus driver, submit to a drug test pursuant to SEPTA’s policy where he had a history of attendance problems and failed to report a work-related injury until several days after it occurred. In making this finding, this Court noted that SEPTA was “responsible for the safe transportation of thousands of people each day.” Id. at 1385. Likewise, in Rebel, in analyzing whether, under Section 402(e), an employer’s drug testing program was a violation of that claimant’s Fourth Amendment rights, the Pennsylvania Supreme Court stated:

Upon weighing the employer’s interest in the drug testing program against the burden to employees, we conclude that the program is a reasonable one. Appellant had an implied obligation, therefore, to comply.

The employer has a strong interest in maintaining a workplace that is free from the influence of drugs. This is true of the entire work site, not just areas that are regarded as highly safety-sensitive. Employees who have consumed drugs can incur reductions in their productivity, reliability, and competency, thereby adversely affecting the employer’s interests. In turn, interests of customers can be detrimentally affected as well. There are also overriding concerns of safety and liability. Workplace safety is obviously undermined by employees who are impaired in their physical and mental capacities. Not only are fellow workers endangered, but the public is likewise placed at risk. The avoidance of injury, as well as concern for vicarious liability that can accrue to the employer, are legitimate interests of the employer that must be accorded substantial weight.

Rebel, 555 Pa. at 120, 723 A.2d at 159.

In determining whether the Employer in this case had reasonable suspicion to request a drug test from Claimant, it is worth noting that Claimant’s job involved heavy machinery and working at heights of up to 60 feet in close proximity to other workers. The consequences of Claimant’s use of drugs or alcohol on the job, if such occurred, could be very grave. In this case it appears that Employer had at least as much grounds for reasonable suspicion to request a drug test as SEPTA did in Shaw. Here, Employer had reports from at least four people raising either their suspicions of Claimant’s alcohol use or concerns regarding his safety on the job. (Referee Hr’g Tr. at 6.) Claimant had a minor accident on the job approximately six months prior. (Referee Hr’g Tr. at 5-6.) During the six months after that accident, Claimant was absent from work 14 days. (Referee Hr’g Tr. at 11.) Claimant admitted that one of these absences, which occurred the day after the Super Bowl, was due to a hangover. (Referee Hr’g Tr. at 11-12.) Given the dangerous nature of Claimant’s job, this constitutes reasonable suspicion for Employer to request a drug test under its policy.

Section 402(e.l) states that an employee will not receive benefits when “his unemployment is due to discharge ... from work due to failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy....” In this case, Employer had an established substance abuse policy which stated, “[ajdditionally, a drug & alcohol screening may be requested from any employee that demonstrates cause for concern regarding use of drugs and alcohol.” (Employer’s Drugs, Alcohol, and Mental Fitness Policy, UC Service Center Ex. 13, R. Item No. 4; Referee Hr’g Tr. at 7.) Employer believed it had cause for concern regarding Claimant’s use of drugs and alcohol. Therefore Employer, pursuant to its established substance abuse policy, requested Claimant to submit to a drug test. Claimant refused. Claimant is therefore ineligible for benefits under Section 402(e.l) and we reverse the Order of the Board.

ORDER

NOW, January 24, 2008, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby REVERSED.

1 . Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, added by Section 3 of the Act of December 9, 2002, P.L. 1330, as amended, 43 P.S. § 802(e.1).

2 . In an appeal of a decision of the Board, this "Court’s review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record.” Western and Southern Life Ins. Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n. 2 (Pa.Cmwlth. 2006). Additionally, the Board is the ultimate factfinder, empowered to make determinations as to witness credibility and conflicting evidence. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1385 (1985).

3 . In Walker, this Court stated:

(1) [h]earsay evidence, properly objected to, is not competent evidence to support a finding of the Board.... (2) Hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record, but a finding of fact based solely on hearsay will not stand.

Walker, 367 A.2d at 370 (emphasis in original) (citations omitted).

4 . Specifically, Taylor testified that:

I had three complaints from employees that had concerns about alcohol or — concerns with George Yohe’s work there. Perhaps under the influence of alcohol. I said three employees [sic] complaints, actually, two of them were from the same employee. But I also had two customers complain of their concern about safety issues in George.

(Hr'g Tr. 6.)