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NATHANIEL MCKINNEY v. COMMONWEALTH PENNSYLVANIA (06/17/88)

decided: June 17, 1988.

NATHANIEL MCKINNEY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Appeal Board, in the case of In Re: Claim of Nathaniel McKinney, No. B-251237-B.

COUNSEL

Michael Goldberg, Central Pennsylvania Legal Services, for petitioner.

No appearance for respondent.

Jeffrey Ivan Pasek, Cohen, Shapiro, Polisher, Shiekman & Cohen, for intervenor, Yellow Freight System, Inc.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Palladino dissents.

Author: Barbieri

[ 117 Pa. Commw. Page 169]

Nathaniel McKinney (Claimant) appeals an order of the Unemployment Compensation Board of Review (Board) denying him benefits pursuant to Section 402(e) of the Unemployment Compensation Law,*fn1 on the grounds he had been terminated for willful misconduct.

Claimant was employed by Yellow Freight System, Inc. (Employer) for thirteen years. On April 4, 1986, Employer's linehaul manager noticed that Claimant's speech was slurred and that Claimant was "floating around the office kidding around with people" at the time when he should have been working. The Employer had a policy prohibiting employees from being under the influence of alcohol or drugs at work. Claimant agreed to submit to both a blood and urine test for alcohol on April 4, 1986, and was discharged in light of the test results.

[ 117 Pa. Commw. Page 170]

Claimant applied for Unemployment Compensation benefits. On the Summary of Interview sheet, Claimant stated that he was asked to submit to a blood and urine test and that "[t]he tests were positive." The Office of Employment Security denied benefits on account of willful misconduct. On appeal, the referee reversed, holding there was no competent record evidence that Claimant was under the influence of alcohol on April 4, 1986.

At the hearing before the referee, the Employer had attempted to introduce a report from DrugScan, Inc. which contained the results of the blood and urine tests. Counsel for Claimant objected to the admission of the report and the referee sustained the objection on the basis that the report was hearsay.*fn2 The Employer did not produce any other medical evidence to show Claimant was intoxicated on April 4, 1986, and Claimant denied that he was.

The Board initially affirmed the referee's decision to grant benefits in a decision dated July 25, 1986. The Employer requested that the Board grant reconsideration and permit it to submit additional evidence at a remand hearing. By order dated August 22, 1986, the Board vacated its initial decision. On January 30, 1987, after hearing oral argument, the Board entered an order reversing the referee and denying benefits. This appeal followed.

Claimant contends that the Board erred in concluding that the Employer had met its burden of proving Claimant was guilty of willful misconduct and improperly granted reconsideration. Pursuant to Section 704 of ...


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