           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven A. Blaylock                          :
                  Petitioner                :
                                            :
              v.                            :   No. 2059 C.D. 2014
                                            :   Submitted: May 8, 2015
Unemployment Compensation                   :
Board of Review,                            :
                 Respondent                 :


BEFORE:       HONORABLE BERNARD L. McGINLEY, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                                   FILED: August 21, 2015

              Steven Blaylock (Claimant), pro se, petitions for review of an
adjudication of the Unemployment Compensation Board of Review denying his
claim for unemployment compensation benefits. In doing so, the Board affirmed
the Referee’s decision that Claimant’s use of drugs, in violation of the law,
rendered him ineligible for benefits under Section 402(e) of the Unemployment
Compensation Law1 (Law). Finding no error by the Board, we affirm.
              Claimant was employed by Barclay Condominium (Employer) as a
doorman from April 2005 to March 27, 2014.                  Claimant was responsible for

1
  Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). In
relevant part, Section 402(e) provides that an employee is ineligible for compensation when “his
unemployment is due to his discharge or temporary suspension from work for willful misconduct
connected with his work . . . [.]” 43 P.S. §802(e).
ensuring the security of Employer’s tenants and had access to keys to all of the
condominiums.     Employer provides a copy of its employee handbook to all
employees when they are hired and whenever there is a major revision to the
handbook. The handbook expressly prohibits, inter alia,

             engaging in any unethical conduct; committing illegal conduct;
             [and] possessing, using, distributing or being under the
             influence of illegal drugs or alcohol at any time while
             conducting [Employer’s] business or while on [Employer’s]
             property.

Referee Decision/Order, May 15, 2014, at 1, Finding of Fact No. 2. Claimant
signed a copy of the policy, indicating that he read and understood it.
             On March 18, 2014, Employer received a report that a small bag
wrapped in a dollar bill had been found in the employee locker room. It was
suspected that the bag contained illegal drugs. At the time Employer did not have
an established drug and alcohol testing policy. This incident prompted Employer
to require all employees to submit to a drug screening. On March 21, 2014,
following a staff meeting, an outside laboratory conducted the screenings. On
March 27, 2014, Claimant met with Employer’s general manager, Sharon Hearn,
and admitted to ingesting cocaine and marijuana at a recent party. At about the
time that Claimant confessed to Hearn, Employer learned that Claimant’s drug test
was positive for several drugs including cannabinoids, benzodiazepines, and
cocaine. Employer discharged Claimant on March 27, 2014, for failing the drug
test and violating its policies against committing illegal conduct and being under
the influence of illegal drugs while at work.
             Claimant applied for unemployment compensation benefits, which the
UC Service Center granted. In doing so, the UC Service Center determined that

                                          2
Claimant was not ineligible under Section 402(e.1) of the Law2 because Employer
did not have an established drug testing policy. Employer appealed, and the
Referee conducted a hearing on May 13, 2014, at which Employer was represented
by Hearn. Claimant did not appear.
              At the hearing, Hearn testified regarding the circumstances leading up
to the all-employee drug screening. Hearn described how the bag of alleged drugs
was discovered, and after reviewing surveillance footage, a decision was made to
test all employees for drugs. Hearn stated that Claimant was terminated for failing
the drug test. She explained that she had

              a concern with his position that he’s in, he’s a doorman and all
              of our doormen staff have access to the keys for all of our
              residents’ units and based on my insurance policy and speaking
              with my insurance agent, [Claimant] would be a high risk to, in
              order, even if he were to test[] positive [for drugs] and we were
              to give him a second chance, in the event that there would be
              any theft in the building, it would be the liability, [Employer]
              would be at risk and at fault for keeping this employee
              employed with, knowing that he tested positive.

Notes of Testimony, May 13, 2014, at 9. Hearn also testified that “Claimant
admitted to me in my office the morning of [the drug test results, when] he was
terminated, that he went to a party and that he did engage in cocaine with a couple
of his friends.” Id. at 10.


2
 Section 402(e.1) provides that an employee is ineligible for compensation when
        his unemployment is due to discharge or temporary suspension from work due to
        failure to submit 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). Section 402(e.1) was added by the Act of December 9, 2002, P.L. 1330.


                                               3
              The Referee determined that Claimant was ineligible for benefits
under Section 402(e) of the Law, 43 P.S. §802(e).3 In doing so, the Referee found
that Employer failed to prove with competent evidence that the item discovered in
its employee locker room was illegal contraband or linked in any way to Claimant.
The Referee declined to consider the results of Claimant’s drug screening on
hearsay grounds. Thus, the Referee concluded that Employer “failed to establish
that the Claimant used, distributed, or was under the influence of illegal drugs or
alcohol while performing Employer business or on Employer property.” Referee
Decision/Order, May 15, 2014, at 3. Nevertheless, because Claimant admitted to
Hearn that he had ingested marijuana and cocaine off duty, which was
corroborated by his admission to the Department that he failed a drug test, the
Referee held that Claimant violated Employer’s policy prohibiting employees from
engaging in “illegal activity.” Id.
              Claimant appealed to the Board, which remanded to the Referee to
take additional evidence concerning Claimant’s non-appearance at the hearing. At
the remand hearing on August 14, 2014, Claimant testified that he had not received
notice of the original hearing. He admitted that he had taken drugs at a party, but
he denied being under the influence of drugs while at work.
              On review, the Board found that Claimant had good cause for his
failure to attend the first hearing. On the merits, the Board adopted the Referee’s
findings and conclusions and stated as follows:




3
  The Referee determined that Claimant was not ineligible under Section 402(e.1) because
Employer did not have an established drug or alcohol testing policy. This issue has not been
appealed and we will not consider it further.


                                             4
              The Board specifically finds [C]laimant incredible that he was
              not under the influence at work and concludes that [C]laimant
              was under the influence at work…. [C]laimant had no good
              cause for being under the influence at work.

Board Adjudication, October 7, 2014, at 1. Accordingly, the Board affirmed the
Referee’s denial of benefits. Claimant now petitions for this Court’s review.4
              In his appeal, Claimant argues that the Board erred.                  Claimant
contends that the drug test was unauthorized because Employer’s handbook does
not contain a drug testing policy. Claimant also argues that he did not violate
Employer’s policy because the misconduct to which he admitted occurred on his
personal time away from Employer’s premises. Claimant believes Employer’s
policy is vague in its “interpretation and understanding [of] when the willful
misconduct policy can be applied[.]” Claimant’s Brief at 10.
              We begin with a review of the law on willful misconduct. Although
“willful misconduct” is not defined in the Law, the courts have established that it
means the following:

              (1) an act of wanton or willful disregard of the employer’s
              interest;
              (2) a deliberate violation of the employer’s rules;

              (3) a disregard of standards of behavior which the employer
              has a right to expect of an employee; and




4
  In unemployment compensation appeals, our review is to determine whether the Board’s
adjudication is in violation of constitutional rights, whether errors of law were committed, or
whether findings of fact are supported by substantial evidence. Yost v. Unemployment
Compensation Board of Review, 42 A.3d 1158, 1161 n. 2 (Pa. Cmwlth. 2012).


                                              5
             (4) negligence indicating an intentional disregard of the
             employer’s interest or of the employee’s duties and obligations
             to the employer.

Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa.
Cmwlth. 1996). It is the employer’s burden to establish that a claimant’s conduct
constituted willful misconduct.       Conemaugh Memorial Medical Center v.
Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa.
Cmwlth. 2003). When an employer attempts to establish willful misconduct for
violation of a work rule, the employer must establish the existence, violation, and
reasonableness of the rule. Id. Once the employer establishes a prima facie case
of willful misconduct, the burden shifts to the claimant to prove his actions did not
constitute willful misconduct because he had good cause for his behavior. Jordon
v. Unemployment Compensation Board of Review, 684 A.2d 1096, 1099 (Pa.
Cmwlth. 1996). Good cause exists where the claimant’s action is “justifiable or
reasonable under the circumstances.” Frumento v. Unemployment Compensation
Board of Review, 351 A.2d 631, 634 (Pa. 1976).
             The Board is the ultimate finder of fact, and is free to accept or reject
the testimony of any witness in whole or in part.             Collier Stone Co. v.
Unemployment Compensation Board of Review, 876 A.2d 481, 483 (Pa. Cmwlth.
2005). Therefore, the Board’s findings of fact, including those adopted from the
Referee, are conclusive on appeal if the record, taken as a whole, contains
substantial evidence to support them. Taylor v. Unemployment Compensation
Board of Review, 378 A.2d 829, 831 (Pa. 1977). “Substantial evidence” has been
defined as “such relevant evidence which a reasonable mind might accept as
adequate to support a conclusion.” Philadelphia Gas Works v. Unemployment
Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995). This

                                          6
Court must examine the testimony in the light most favorable to the prevailing
party, “giving that party the benefit of all inferences that can logically and
reasonably be drawn from the testimony, to see if substantial evidence for the
Board’s conclusion exists.” Taylor, 378 A.2d at 831.
                 We agree with the Board that Claimant committed willful misconduct
by consuming illegal drugs.5            Employer established that it had an employee
handbook that prohibited “committing illegal conduct,” and the handbook did not
limit the proscribed “illegal conduct” to that committed in the workplace. Referee
Decision/Order, May 15, 2014 at 1, Finding of Fact No. 2.                              Claimant
acknowledged receiving the handbook and was aware of the policy. Although the
Referee did not consider the drug test results due to hearsay issues, Claimant
admitted to Hearn that he had ingested marijuana and cocaine at a party. This
admission of illegal conduct violated Employer’s policy prohibiting “committing
illegal conduct.” We agree with the Referee and Board that Employer’s policy was
reasonable because, as a front doorman, Claimant was required to maintain
building security and had access to the keys to all the apartments in Employer’s
building. Moreover, Claimant offered no evidence of good cause for his actions.
Consequently, we conclude that Claimant committed willful misconduct, and the
Board correctly denied Claimant unemployment compensation benefits.
                 For these reasons, we affirm the Board’s adjudication.

                                                      ______________________________
                                                      MARY HANNAH LEAVITT, Judge




5
    We do not address the issue of whether Claimant was under the influence of drugs at work.


                                                 7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven A. Blaylock                :
                  Petitioner      :
                                  :
            v.                    :   No. 2059 C.D. 2014
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :


                                ORDER

            On this 21st day of August, 2015, the order of the Unemployment
Compensation Board of Review dated October 7, 2014, in the above-captioned
matter is hereby AFFIRMED.

                                         ______________________________
                                         MARY HANNAH LEAVITT, Judge
