            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bart Hawthorne,                               :
                                              : No. 983 C.D. 2015
                             Petitioner       : Submitted: October 23, 2015
                                              :
                     v.                       :
                                              :
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                             Respondent       :


BEFORE:       HONORABLE BERNARD L. McGINLEY, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                                   FILED: December 10, 2015

              Bart Hawthorne (Claimant) petitions for review, pro se, of the April 29,
2015, order of the Unemployment Compensation Board of Review (UCBR) affirming
the decision of a referee to deny Claimant unemployment compensation (UC)
benefits.1 The UCBR concluded that Claimant was ineligible for UC benefits under
section 402(e.1) of the Unemployment Compensation Law (Law)2 because he was
discharged from work for failing to pass a drug test. We affirm.


       1
         Although Claimant’s initial appeal to the referee was untimely filed, the UCBR concluded
that Claimant had good cause for his untimely appeal and granted him nunc pro tunc relief. This
determination has not been challenged on appeal to this court.

       2
         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 provides that an employee is ineligible for UC benefits for
any week “[i]n which his unemployment is due to discharge . . . from work due to failure to submit
(Footnote continued on next page…)
              Claimant worked for Standard Forged Products (Employer) as a heat
treat operator from January 14, 2013, through December 18, 2013.                     (UCBR’s
Findings of Fact, No. 1.) Employer’s disciplinary policy provides that a major
infraction of Employer’s work rules can result in an employee’s immediate discharge.
(Id., No. 2.) One enumerated example of a major infraction is when an employee
tests positive for an illegal substance in violation of Employer’s Alcohol, Drug and
Unauthorized Substances Policy (drug policy). (Id., No. 3.) Employer’s drug policy
permits random drug testing. (Id., No. 4.) Employer has an employee assistance
program to help employees with substance abuse problems. However, pursuant to the
drug policy, if an employee tests positive for an illegal substance, his or her
subsequent request for participation in the assistance program will have no effect on
Employer’s disciplinary action. (Id., No. 5.)


              On December 18, 2013, Claimant underwent a random drug test at work
and tested positive for cocaine. (Id., Nos. 6-7.) Claimant admitted to Employer that
he had used cocaine. (Id., No. 8.) Claimant was immediately discharged pursuant to
Employer’s disciplinary and drug policies. (Id., No. 9.)


              Claimant filed a claim for UC benefits, which the Department of Labor
and Industry (Department) denied on February 3, 2014. Claimant filed a late appeal
to the referee. The referee held a hearing on April 2, 2014, limited to the issue of




(continued…)

and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy.”
43 P.S. §802(e.1).


                                               2
timeliness.    The referee concluded that Claimant’s appeal was untimely and,
therefore, dismissed the appeal.


              Claimant timely appealed to the UCBR.            After determining that
Claimant may have been entitled to nunc pro tunc relief, the UCBR remanded the
matter to the referee to act as a hearing officer for the UCBR on the merits of
Claimant’s claim for UC benefits. The referee held the remand hearing on August
22, 2014. Employer did not appear at the hearing, and Claimant declined to offer any
testimony. Thereafter, the UCBR remanded the matter to the referee a second time
with the following instructions:

              The purpose of this hearing is to have the Referee place into
              the record, subject to party objections, service center
              exhibits Nos. 1 through 30-A. These exhibits have not been
              placed in the record.

              The Referee should try to limit the introduction of
              repetitious or irrelevant matters. Answers to the following
              question, in addition to the above information, would be
              helpful:

              Throughout the claimant’s Internet Initial Claims form
              (Exhibit No.2) as well as in his appeal document (Exhibit
              No. 30-A), the claimant appears to admit to testing positive
              for cocaine. Did the claimant test positive for cocaine?

(UCBR’s Remand Memo, 12/1/14; see UCBR’s Order, 1/7/15.)


              The referee held the second remand hearing on February 10, 2015.
Claimant and one Employer witness appeared at the hearing. Thereafter, on April 29,
2015, the UCBR granted Claimant nunc pro tunc relief and determined that Claimant



                                           3
was ineligible for benefits under section 402(e.1) of the Law. Claimant now petitions
for review of that decision.3


              In his petition for review, Claimant asserts that the UCBR erred in
affirming the denial of UC benefits because the evidence established that he was
wrongfully discharged.        Specifically, Claimant contends that his discharge was
improper because one month before he was drug-tested, Claimant told his supervisor
that he was depressed and needed help, but Employer did not offer him any help.


              To establish a claimant’s ineligibility for UC benefits under section
402(e.1) of the Law, an employer must “demonstrate (1) that it had an established
substance abuse policy and (2) that the claimant violated the policy.” Greer v.
Unemployment Compensation Board of Review, 4 A.3d 733, 736 (Pa. Cmwlth. 2010).
If the employer satisfies its burden, the “claimant will be rendered ineligible for
benefits unless the claimant is able to demonstrate that the employer’s substance
abuse policy is in violation of the law or a [collective bargaining agreement].” Id.


              Here, the evidence credited by the UCBR established that: (1) Employer
has a drug policy whereby an employee can be discharged for testing positive for an
illegal substance; (2) Claimant tested positive for cocaine following a random drug
test; (3) Claimant admitted that he had used cocaine; and (4) Employer discharged
Claimant pursuant to its drug and disciplinary policies. (UCBR’s Findings of Fact,
Nos. 2, 3, 7-9.) Thus, Employer met its burden under section 402(e.1) of the Law.

       3
         Our review is limited to determining whether constitutional rights were violated, whether
an error of law was committed, or whether the necessary findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.


                                                4
              The burden of proof then shifted to Claimant. Greer, 4 A.3d at 736.
However, Claimant did not even argue, let alone prove, that Employer’s drug policy
is illegal or violates a collective bargaining agreement. Claimant contends that his
failure to pass the drug test cannot be a basis for discharge because he had previously
asked Employer for help with depression and Employer failed to help him. Even if
Claimant’s testimony were believed, the record shows that Claimant’s supervisor told
him that Employer had an assistance program for employees with substance abuse
problems. (N.T., 2/10/15, at 7-8; R. Item No. 5, Ex. B-1.) However, there is no
evidence that Claimant ever asked to participate in the substance abuse program, even
though he admitted that he had used narcotics to “self[-]medicate.” (N.T., 2/10/15, at
8; R. Item No. 5, Ex. B-1.)4 In any event, Employer’s drug policy provides that if an
employee tests positive for an illegal substance, his subsequent participation in the
assistance program will have no effect on Employer’s disciplinary action. (UCBR’s
Findings of Fact, No. 5.) Therefore, the UCBR correctly determined that Claimant is
ineligible for UC benefits under section 402(e.1) of the Law.


              Next, Claimant asserts that the UCBR lacked the authority to remand
this matter for additional hearings and the referee erred in allowing Employer’s
witness to testify at the February 10, 2015, remand hearing.5 We disagree.

       4
        Employer’s drug policy provides that an employee’s request to participate in the assistance
program before a drug test cannot itself be a basis for discipline. (R. Item No. 3, Ex. 11.) The
policy does not provide, as Claimant appears to suggest, that an employee who fails a drug test
cannot be disciplined if he or she has participated in the assistance program. On the contrary,
Employer’s drug and disciplinary policies state that an employee who fails a drug test at work can
be immediately discharged from employment. (UCBR’s Findings of Fact, Nos. 2-3.)

       5
         Although Claimant did not raise these issues in his petition for review, he raised them in
his statement of questions involved and argued them in his brief. Because we are able to address
(Footnote continued on next page…)
                                                5
              The UCBR has the discretion to determine whether a remand is
appropriate and, absent an abuse of that discretion, we will not reverse the UCBR’s
decision to remand. See Kiehl v. Unemployment Compensation Board of Review, 747
A.2d 954, 957 (Pa. Cmwlth. 1999) (per curiam). “[I]f the [UCBR] deems the record
before it to be inadequate for proper resolution of the issues presented, it has the
power to remand a case to the referee for the purpose of receiving additional
evidence.”     Cooper Industries, Inc. v. Unemployment Compensation Board of
Review, 555 A.2d 969, 971 (Pa. Cmwlth. 1989).


              Here, the UCBR initially remanded the matter because the referee did
not consider the merits of the appeal at the first hearing; the only issue addressed was
the timeliness of Claimant’s appeal from the Department’s February 3, 2014,
decision. After determining that Claimant may have been entitled to nunc pro tunc
relief, the UCBR remanded the matter so that the referee could receive evidence on
the merits under section 402(e.1) of the Law. We find no abuse of discretion.


              Claimant also challenges the UCBR’s second remand to the referee.
After the first remand hearing, the UCBR discovered that the referee failed to admit
into evidence 27 Department exhibits, including Claimant’s internet initial claims
form and various documents that Employer sent to the Department in connection with
Claimant’s claim. Because the Department reviewed and relied on these documents


(continued…)

these claims based on the certified record, we will not find waiver. See Pa. R.A.P. 1513(d)(5);
Official Note to Pa. R.A.P. 1513 (2014).


                                              6
in denying Claimant’s claim for UC benefits, we conclude that the UCBR acted well
within its discretion in remanding the matter to the referee to admit the missing
exhibits.


             Finally, Claimant asserts that the referee erroneously permitted
Employer’s witness, Jeffrey Coombs, to testify at the February 10, 2015, remand
hearing. However, Claimant did not object to Coombs’ testimony before the referee.
Therefore, this claim is waived. See Phoebus v. Unemployment Compensation Board
of Review, 573 A.2d 649, 651 (Pa. Cmwlth. 1990) (stating that a claimant’s failure to
raise an objection before the referee constitutes waiver of the issue on appeal).


             Accordingly, we affirm.




                                       ___________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge




                                           7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Bart Hawthorne,                      :
                                     : No. 983 C.D. 2015
                       Petitioner    :
                                     :
                  v.                 :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                                     :
                       Respondent    :



                                    ORDER


           AND NOW, this 10th day of December, 2015, we hereby affirm the
April 29, 2015, order of the Unemployment Compensation Board of Review.


                                     ___________________________________
                                     ROCHELLE S. FRIEDMAN, Senior Judge
