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Brooks Armored Car Service Inc. Appellant
vs.
James M. Stollings and the Unemployment Insurance Appeal Board Appellees.
 
Case:
C.A. No. 93A-04-005
 
Location:
SUPERIOR COURT OF DELAWARE NEW CASTLE
 
Date:
April 28 1994 Decided
 
Attorneys:
Bhavana Sontakay Esquire of Young Conaway Stargatt & Taylor Rodney Square North P.O. Box 391 Wilmington DE 19899. Counsel for Appellant.
Nancy E. Chrissinger Esquire of Tybout Redfearn & Pell 300 Delaware Avenue #1110 P.O. Box 2092 Wilmington DE 19899. Counsel for Appellee James Stollings.
Kevin Slattery Esquire Department of Justice Carvel State Office Building 820 North French Street Wilmington DE 19801. Counsel for Appellee UIAB.
 
Court:
ALFORD
 
Author:
The Hon. Justice Haile Alford
 

This is Court's decision on the appeal filed by Brooks Armored Car Service Inc. ("Brooks"). For the following reasons the decision of the Unemployment Insurance Appeal Board ("Board") is affirmed.

James Stollings ("Appellee") was hired by Brooks on December 4 1993 contingent upon his successful passage of a drug test. Appellee took the test on December 3 1993 and was discharged on December 9 1993 when it was determined by Brooks that Appellee had tested positive for the use of marijuana. Appellee applied for unemployment benefits and a Claims Deputy found that he was disqualified from receiving benefits pursuant to 19 Del. C. SEC.(S) 3315(2). *fn1 He appealed the decision to the Appeals Referee who reversed the Claims Deputy.

During the hearing before the Referee Appellee testified that he tried a marijuana cigarette around November 17 1993 and as a result expressed doubt as to whether he would be able to pass one drug test stating:

I tried a marijuana cigarette a [sic] around November 17th. I was persuaded to try it. I didn't like it and stopped immediately so usually it takes 30 days for a system to clear. I was on the border line then on December 9th I was called in the office after 8 hours of work and told that my test was positive for cannibunoids and I tried I tried to talk Mr. Strasser into giving me another screen. I didn't have a drug problem and he said he stated I'm quite sure you don't have a problem but our policy is you must be terminated. (Hr'g Tr. at 14). Appellee further testified that he was aware that testing drug free was a requirement for receiving permanent employment at Brooks stating "they got a sign in their lobby that you must pass a pre-employment drug screen." (Hr'g Tr. at 17).

At the conclusion of Appellee's testimony the Referee found that Brooks who was not represented at the hearing failed to establish that Appellee had been discharged for just cause. Therefore the Referee found that Appellee was discharged without just cause and entitled to receive unemployment benefits. Brooks appealed the Referee's decision to the Board.

At the Board hearing Mr. Edward Strasser Vice President of Human Resources testified on behalf of Brooks. He stated that passage of the drug test was a requirement of employment and that Appellee was aware of this policy. Mr. Strasser introduced onto evidence a document executed by Appellee on December 3 1993 acknowledging his awareness of Brooks' drug policy.

Mr. Strasser attempted to introduce evidence of the drug test results but the Board refused to allow the testimony. Mr. Strasser was not the person who conducted the test. Thus the Board ruled that he was not the appropriate person to testify regarding the test. The Board ruled it was a necessity that Brooks provide testimony on the chain of custody regarding the urine sample and produce the persons who actually conducted the test. Brooks was unable to do so therefore the Board found the test results inadmissible.

The Board adopted the Referee's findings that Appellee did not engage in an act of willful or wanton misconduct and that Brooks had not proved just cause to discharge Appellee. Brooks then appealed to this Court.

Court's role in an appeal from the Board is to determine whether the Board's factual findings are supported by substantial evidence and free from legal error. Attix v. Voshell Del. Super. 579 A.2d 1125 1127 (1989). Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as sufficient to support a conclusion. Breeding v. Contractors-One-Inc. Del. Supr. 549 A.2d 1102 1104 (1988). Absent an abuse of discretion by the Board Court must uphold a decision of an administrative tribunal. Funk v. Unemployment Ins. Appeal Bd. Del. Supr. 591 A.2d 222 225 (1991).

Court finds that the Board acted within its discretion in refusing to admit into evidence the results of the drug test. See Gancom v. Unemployment Compensation Board of Review Pa. Commw. No. 2104 C.D. 1991 (April 18 1994) 1994 L 192; Philadelphia Electric Company v. Commonwealth of Pa. Unemploy. Comp. Bd. of Review 565 A.2d 1246 (1989). In Gancom and Philadelphia Electric Court declined to allow the results of drug tests to be admitted without testimony regarding the chain of custody surrounding the administration of the actual test. Id. at 1248; Gancom 1994 L 192 at *4.

In Philadelphia Electric Court ruled that a licensed physician's assistant who attempted to read into the record the results of a drug test performed by a person unknown to her to establish the truth of the employer's termination basis was not permissible. Id. at 1248. Similarly in Gancom an employer's representative attempted to introduce test results without testimony on their chain of custody. The Pennsylvania Commonwealth Court found in both Gancom and Philadelphia Electric that the employer's did not meet their burden of proving willful misconduct because they did not show that the claimants had actually failed the drug test. Gancom 1994 L 192 at *4. Philadelphia Electric 565 A.2d at 1248.

Like the physician's assistant in Philadelphia Electric and the employer's representative in Gancom Mr. Strasser in the instant case attempted to read into the record results of a test conducted by persons unknown to him to establish the truth of the test results as the basis for Appellee's termination. Without the admission of the test results the only evidence of Appellee's drug use is his statement regarding marijuana use on November 17 1993 which was prior to his date of hire.

Court finds that Appellee's statements regarding his use of drugs on November 17 1993 did not acknowledge the truth of the test results nor did it prove that Appellee used drugs during his term of employment. Without the test results Brooks has not met its burden of showing just cause for discharge.

Brooks contends that Grimes v. General Motors Corp Del. Super. No. 80AS-DE-7 Longobardi J. (Feb. 12 1982) is similar to the case sub judice. In Grimes Court found that an employer can impose conditions to employment provided they reasonable relate to the job offered. Id. (citing Lattanzio v. Unemployment Compensation Bd. of Rev. Pa. Supr. 336 A.2d 595 (1975)). The employee in Grimes failed to complete an alcohol rehabilitative program which was a condition to the reinstatement of his employment.

Court finds Brooks' reliance on Grimes to be misplaced because it ignores the hearsay problem regarding the drug test in the instant case. The Record does not contain competent evidence to support Brooks' assertion 'that Appellee failed his drug test. Consequently there is insufficient evidence upon which the Board or this Court may conclude that Appellee failed to fulfill a condition of employment.

Court also notes that the Board informed Mr. Strasser of Brooks' right to request a rehearing before the Board or to appeal. (Hr'g Tr. at 35). The Record indicates that Brooks did not request a rehearing but instead instituted this appeal.

For the foregoing reasons the decision of the Unemployment Insurance Appeal Board is AFFIRMED.

 
Notes:

*fn1 "For the period of unemployment next ensuing after an individual has been discharged from his work for just cause in connection with his work. . ." 19 Del. C. SEC. 5(2).