IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Harold J. Raub, :

:

Petitioner :

:

v. : No. 1479 C.D. 2016

: Submitted: March 3, 2017

Unemployment Compensation :

Board of Review, :

:

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: April 7, 2017

Harold J. Raub (Claimant) petitions for review of the order of the 

Unemployment Compensation Board of Review (Board) affirming the decision of 

a referee that Claimant is ineligible for benefits under Section 402(e.1) of the 

Unemployment Compensation Law (Law).1 We affirm.

 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, added by 

the Act of December 9, 2002, P.L. 1330, 43 P.S. §802(e.1). Section 402(e.1) of the Law states 

that an employee shall be ineligible for compensation for any week “[i]n which his

unemployment is due to discharge or temporary suspension from work due to failure to submit 

[to] 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).
2

Claimant was employed by Nicholas Trucking Company (Employer) 

as a truck driver from December 2014 to May 2016. On April 27, 2016, Claimant 

was involved in an accident while driving an Employer vehicle. As a result, 

Claimant was directed to report for a drug test and provided a urine sample on 

April 28, 2016. After the laboratory determined that Claimant’s sample was not 

usable because it was diluted, on May 3, 2016, Claimant was directed to appear at 

a collection facility and provide another sample. Because the first sample was 

diluted, the collection of the second sample was to be observed by a physician or 

male employee of the collection facility.2 Although Claimant appeared at the 

collection facility to provide another urine sample on May 4, 2016, he became 

upset when he learned that the collection was going to be observed by a male 

employee of the collection facility and refused to provide another sample. 

Accordingly, Claimant’s employment was terminated.

Claimant applied for benefits and provided responses for the Claimant 

Questionnaire. Certified Record (C.R.) Item No. 2. Regarding the circumstances 

surrounding the drug testing, Claimant stated:

[I] gave a urine sample on 4/28 and it was stated to be 

[i]nconclusive and I was told about that on 05/04/16 and 

was to give another sample which I was going to do but 

then I was told it had to be observed by a doctor, a man, 

and I got mad so I threw the cup down and refused to 

take the test again.

Id.

 

2 With respect to the collection of a sample, 49 C.F.R. §40.67(g) of the federal 

Department of Transportation (Department) regulations states, “As the collector, you must 

ensure that the observer is the same gender as the employee. You must never permit an opposite 

gender person to act as the observer. The observer can be a different person from the collector 

and need not be a qualified collector.”
3

On May 16, 2016, the Service Center issued a Notice of 

Determination denying Claimant’s application for benefits. C.R. Item No. 4. The 

Service Center found that Claimant refused to submit to a drug/alcohol test 

conducted under an established substance abuse policy and that the test was not in 

violation of a known law or of an existing collective bargaining agreement (CBA). 

Id. As a result, the Service Center concluded that Employer sustained its burden of 

proof and that benefits are denied under Section 402(e.1) of the Law. Claimant 

appealed the Service Center’s determination to a referee.

At the referee’s hearing, the Claimant Questionnaire was admitted 

without objection. N.T. 6/16/163at 3. Regarding the circumstances underlying 

Claimant’s discharge, Employer’s compliance officer and director of human 

resources testified that Claimant was involved in an accident with one of 

Employer’s trucks and was requested to take a urine test on April 28, 2016. He 

stated that in addition to being part of the Department’s regulations, Employer’s 

policy and the CBA require drivers involved in an accident to submit to a drug or 

alcohol test. Id. at 5, 6. He testified that Employer requested Claimant submit to 

another test after Employer was informed that the initial sample was diluted and 

that Employer’s policy and that the Department’s policy required Claimant to 

remain in the collection site until the testing process is complete. He stated that 

Article 17, Section 2 of the CBA provides that “failing to submit to a drug and 

alcohol test is considered just cause for immediate dismissal without any prior 

written warning,” and that “[b]ased on [Claimant’s] refusal to take the second test 

and that being documented by the doctor at our collection site, we immediately 

sent the letter out stating that his position was being terminated.” Id. at 5.

 

3

“N.T. 6/16/16” refers to the transcript of the referee’s hearing.
4

Claimant admitted that he refused to submit to the second drug test, 

stating, that “when I had this woman literally breathing on my neck and a man 

wrenching his neck in to watch me urine in a cup, I just had enough, and I left the 

urinalysis place right there. And I’ll tell you right now I’ll do it again tomorrow. 

I’m not being creeped out.” N.T. 6/16/16 at 8.

On June 17, 2016, the referee issued a decision affirming the Service 

Center’s determination. The referee found as fact, in relevant part, that: Claimant 

provided the first sample and that the lab determined that it was diluted and not 

usable; Claimant admitted that he had drunk a lot of water the day before the test; 

Claimant was directed to provide a second sample and that the collection was to be 

observed by a physician or male employee of the collection facility because the 

first sample was diluted; Claimant appeared to provide the second sample, but 

became upset when he learned that the collection was going to be monitored by a 

male employee of the collection facility and left without providing a sample; 

Claimant refused a drug test; and the testing was under the Department’s 

guidelines, was not contrary to law and was not contrary to the CBA. C.R. Item 9.

The referee explained that “[t]he claimant acknowledged in his 

testimony that there was a male employee peering into the area where he was 

going to provide the sample and the fact that he was being monitored upset the 

claimant and the claimant left without providing a sample.” C.R. Item 9. The 

referee concluded that “the claimant refused a drug screen when [he] left without 

providing a sample on 5/4/2016 and accordingly benefits must be denied under 

Section 402(e.1) of the [Law].” Id. Claimant appealed the referee’s decision and 

the Board affirmed, adopting and incorporating the referee’s findings and 

conclusions. C.R. Item 11.
5

On appeal,4 Claimant argues that the Board erred in denying benefits 

under Section 402(e.1) because the requested testing was contrary to law in that a 

woman was present during the second collection of the sample. Specifically, 

Claimant asserts that the Board capriciously disregarded5his testimony that a 

woman was present during the second collection, finding as fact that only a man 

was present, and erred in determining that the collection was not in violation of law 

because her presence violated the Department’s regulation at 49 C.F.R. §40.67(g).

However, Claimant appears to misapprehend this concept as 

circumscribing the Board’s fact-finding authority. The law remains well settled 

that in unemployment proceedings, issues of credibility are for the Board, which 

may either accept or reject a witness’ testimony whether or not it is corroborated by 

other evidence of record. Chamoun v. Unemployment Compensation Board of 

Review, 542 A.2d 207, 208 (Pa. Cmwlth. 1988). This Court must examine the 

evidence in the light most favorable to the party who prevailed before the Board, and 

to give that party the benefit of all inferences that can be logically and reasonably 

drawn from that evidence. Taylor v. Unemployment Compensation Board of Review, 

 

4 Our scope of review is limited to determining whether the Board’s findings of fact are 

supported by substantial evidence, whether an error of law was committed, or whether 

constitutional rights were violated. Greer v. Unemployment Compensation Board of Review, 4 

A.3d 733, 736 n.4 (Pa. Cmwlth. 2010).

5 We note that “review for capricious disregard of material, competent evidence is an 

appropriate component of appellate consideration in every case in which such question is 

properly brought before the court.” Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal 

Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002). Capricious disregard is a type of legal error. 

Id. It is defined as a “deliberate disregard of competent testimony and relevant evidence which 

one of ordinary intelligence could not possibly have avoided in reaching a result.” Ward v. 

Workers’ Compensation Appeal Board (City of Philadelphia) 966 A.2d 1159, 1164 (Pa. Cmwlth. 

2009).
6

378 A.2d 829, 831 (Pa. 1977). Findings of fact are conclusive on appeal if the record 

contains substantial evidence to support the findings. Id. The fact that a witness has 

presented a version of the facts different from that accepted by the Board is not a 

basis for reversal if substantial evidence supports the Board’s findings. Tapco, Inc. 

v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. 

Cmwlth. 1994). “It is irrelevant whether the record contains evidence to support 

findings other than those made by the fact-finder; the critical inquiry is whether 

there is evidence to support the findings actually made.” Ductmate Industries, Inc. 

v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa.

Cmwlth. 2008) (citation omitted).

As the burdened party with respect to establishing that the testing was 

in violation of law,

6 Claimant had to meet both his burden of production and his

burden of persuasion. Kirkwood v. Unemployment Compensation Board of 

Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987). The Board was free to reject 

Claimant’s testimony regarding the purported illegality of the second collection of 

a urine sample even if it was unrebutted. Carriers Terminal Company v. 

Unemployment Compensation Board of Review, 449 A.2d 873, 874 (Pa. Cmwlth. 

1982). Moreover, as outlined above, Claimant’s testimony at the referee’s hearing 

was rebutted by his admission in the Claimant Questionnaire that only a male was 

 

6

To establish a disqualification for benefits under Section 402(e.1), an employer need 

only show that it had an established substance abuse policy, and that the claimant violated it. 

Greer, 4 A.3d at 737 (citing UGI Utilities Inc. v. Unemployment Compensation Board of Review, 

851 A.2d 240, 252 (Pa. Cmwlth. 2004)). Claimant does not contest the Board’s findings or 

determination that Employer met its burden of proof in this regard. If an employer meets this 

initial burden, a claimant is rendered ineligible for benefits unless he can demonstrate that the 

employer’s substance abuse policy violates either the law or a CBA. Greer, 4 A.3d at 737.
7

present during the collection of a second sample.7 The Board’s resolution of the

conflict between Claimant’s statement in the Claimant’s Questionnaire and his 

differing testimony at the referee’s hearing is not a capricious disregard of 

evidence. Astro Warehousing, Inc. v. Unemployment Compensation Board of 

Review, 461 A.2d 340, 341 (Pa. Cmwlth. 1983). In sum, the Board was free to 

accept as credible that portion of Claimant’s testimony at the referee’s hearing that 

was corroborated by the statement in his Claimant’s Questionnaire supporting a 

finding that only a male was present during the collection process, thereby 

comporting with the law and the CBA, and to reject as not credible Claimant’s 

uncorroborated testimony at the hearing that a female was present in violation of 

the Department’s regulation at 49 C.F.R. §40.67(g).

Accordingly, the Board’s order is affirmed.

MICHAEL H. WOJCIK, Judge

 

7 Claimant’s statement in the Claimant’s Questionnaire constitutes an admission that only 

a male was present during the second collection. Havrilchak v. Unemployment Compensation 

Board of Review, 133 A.3d 800, 804 n.3 (Pa. Cmwlth. 2015). This admission regarding the 

legality of the collection process constitutes substantial evidence supporting the Board’s findings

in this regard. Id.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Harold J. Raub, :

:

Petitioner :

:

v. : No. 1479 C.D. 2016

: 

Unemployment Compensation :

Board of Review, :

:

Respondent :

O R D E R

AND NOW, this 7

th day of April, 2017, the order of the 

Unemployment Compensation Board of Review dated August 9, 2016, at No. B16-09-D-5496 is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge