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August 25, 1997


Appealed From No. B-354833. State Agency Unemployment Compensation Board of Review.

Before: Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Senior Judge Mirarchi.

The opinion of the court was delivered by: Mirarchi



FILED: August 25, 1997

Willie Artis (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed a decision of a referee denying him unemployment compensation benefits on the basis of willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Law). *fn1

Claimant was employed as a furnace operator by Alumax Mill Products (Employer) for eighteen years. He was discharged by Employer for failing a drug test. He filed an application for unemployment compensation benefits which was denied by the Lancaster County Job Center. He appealed the Job Center's determination and a hearing was held before a referee.

Tony Constantino, Ph.D., director of Forensic Toxicology at American Medical Laboratories, testified that the urine specimen provided by Claimant tested positive for marijuana metabolites. Constantino testified that the concentration of a marijuana metabolite called carboxi acid THC in the urine sample eliminated the possibility of passive inhalation of marijuana except under extreme circumstances. Constantino testified that the chain of custody was completely intact.

Kathy Smith, service center supervisor for American Medical Laboratories in Lancaster, testified as to the procedures followed for the collection of a urine sample for drug testing. Smith testified that after a donor produces a specimen, the collector checks the temperature of the specimen and completes a form that lists, inter alia, the location where the specimen was collected and the date and time of the collection. The donor is then requested to initial and date a seal which is placed over the specimen in the donor's presence and the specimen is then sealed into a bag. A chain of custody form is completed and the donor is requested to read a portion of the chain of custody which states that the specimen is his and that it has not been altered in any way. The donor then prints and signs his name. The collector then dates and signs the chain of custody form and signs the specimen over to the chain of custody box. The specimen is sealed inside the box and held in a secure location until a courier takes the specimen to the laboratory in Chantilly, Virginia. Smith testified that Claimant's sample was properly collected under American Medical Laboratories policies and procedures.

Gene Kurtz, Employer's employee services manager, testified that Employer has a policy of testing for drugs if it has just cause and reasonable suspicion. Kurtz explained that just cause and reasonable suspicion includes excessive absenteeism, on-the-job performance problems, accidents or near-misses or any unusual behavior that is noted by supervision and management. Kurtz testified that the drug testing policy is contained in Employer's handbook of which Claimant was given a copy.

Kurtz testified that in October, 1995, Claimant was involved in an incident which resulted in damages to Employer's materials. On May 29, 1996, Claimant was involved in another incident causing $24,000 worth of damage to Employer's material and equipment. As a result of this incident, Claimant was removed from his position and transferred to another department. On June 5, 1996, Claimant and a furnace helper got into an altercation. A second altercation occurred on June 6, 1996. As a result of Claimant's continued poor performance and the altercations, he was sent for a drug screen. As a result of the drug screen, Claimant was discharged.

Claimant denied that he used drugs. He stated that the evening before the test he had been in a car with his brother and his brother's friends and that they were smoking marijuana at that time.

On August 29, 1996, the referee issued a decision affirming the determination of the Job Center. Claimant appealed to the Board which concluded that Claimant's failure of the drug test in violation of Employer's policy rose to the level of willful misconduct. Claimant now appeals to this Court.

On appeal, Claimant argues that Employer failed to prove by substantial evidence that Claimant's actions constituted willful misconduct disqualifying him from receiving unemployment compensation benefits. Our scope of review is limited to determining whether the necessary findings are supported by substantial evidence, whether the Board committed an error of law or whether constitutional rights have been ...

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