IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph T. Gontis, :

Petitioner :

:

v. : No. 1652 C.D. 2015 : Submitted: March 4, 2016 Unemployment Compensation Board : of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: May 6, 2016

Joseph Gontis (Claimant) petitions for review of an a djudication of

the Unemployment Compensation Board of Review (Board) denying his claim for

a Trade Readjustment Allowance under the f ederal Trade Act of 1974 (Trade Act)

, 19 U.S.C. §§2 1 01

- 2487. 1 In doing so, the Board affirmed the decision of the

Referee

, who held that Claimant was ineligible for Trade Act benefits because his

separation from employment was not due to a lack of work. For the reasons that

follow, we affirm.

1 The Trade Act established several federal programs to provide benefits to American workers
ad versely affected by foreign competition

. Showers v. Unemployment Compensation Board of

Review , 64 A.3d 1143, 1146 n.2 (Pa. Cmwlth. 2013). The U.S. Secretary of L abor determines the categories of workers eligible for assistance. Id. at 1146 n.3. State unemployment compensation agencies have jurisdiction to determine the entitlements of individual claimants, and appeals from such agency determinations proceed unde r the applicable state law. Id.2 Claimant was employed by PBS Coals, Inc. (Employer) 2 as a section

mechanic from Nov ember 2008 until September 3, 2014. On Claimant’s final day

of work, he either refused to take or failed a drug test. Employer told Claimant to

go home and not return to work until Employer called him . Employer never

called. On September 8, 2014, Claim ant received a packet from Employer with

instructions on how to maintain his Employer

- provided health insurance while

unemployed. Believing that he had been discharged, Claimant applied for Trade

Act benefits . On April 29, 2015, the Indiana UC Service Ce nter denied Claimant’s

application. Claimant appealed

, and a hearing was held before a Referee on June

5, 2015. At the hearing, Claimant testified on his own behalf; Employer did not

participate. 3

Claimant testified that Employer required all employees to take a drug

test on September 3, 2014. The following day, Employer “laid off everybody”

except Claimant, who was discharged . Notes of Testimony, 6/5/2015

, at 5 (N.T.

___) . The Referee questioned Claimant further regarding Employer’s actions :

[Referee]: So every miner had to get a drug test around September 3 rd , 2014?

[Claimant]: Yes.

[Referee]: So none of your co

- workers went back to work but they discharged you?

[Claimant]: They said they would call me in three days. Yes they would get back to me in three days.

2 For reasons unknown to this Court, Employer is also interchangeably referred to as Rox Coal throughout the record and parties’ briefs.

3 Even though Employer did not participate, two representatives of the Indiana UC Service Center testified in opposition to Claimant ’s application for Trade Act benefits

.3 ***

[Referee]: And you’re saying 190 [employees] went for drug tests on September 3 rd , 2014 and no one came back to work?

[Claimant]: No they came back to work. Some of them did and

some of them didn’t. Some of them went home and they were told to go home for a couple days and then some of them just went back to work.

[Referee]: Okay because I thought you originally said that they closed the mine down on September 3 rd

. [Claimant]: Well I don’t know about that now because (inaudible) close the mine down.

N.T. 6

- 7.

On June 10, 2015, the Referee issued a decision finding Claimant

ineligible for Trade Act benefits and denying Claimant’s application. The Referee

found that “[C]laimant was n ot separated due to lack of work, but a purported

refusal or failed substance abuse test.” Referee’s D ecision at 1, Finding of Fact

No. 5. 4 Claimant appealed. On review, the Board agreed with the Referee that

Claimant did not meet his burden of showing that he was separated due to a lack of

work, which is a prerequisite for Trade Act benefits . Claimant petitioned for this

Court’s review

.

On appeal, 5 Claimant argues that the Board erred in concluding that

he was not laid off due to a lack of work becaus e Employer offered no evidence

4 The Referee acknowledged that there was not sufficient evidence to demonstrate that Claimant was discharged for willful misconduct. We note that Claimant was deemed eligible for unemployment benefits in a separate proceeding.

5 On review, this Court must determine whether the Board’s decision is supported by substantial evidence, errors of law were committed, or constitutional rights were violated. Moore v. Unemployment Compensation Board of Review , 520 A.2d 80, 82 (Pa. Cmwlth. 1987).4

that it was justified in discharging Claimant

. 6 Essentially, Claimant is arguing that

Employer manufactured a reason to fire him so it could avoid laying him off. 7 The

Board counters that it did not err in denying Trade Act benefits because Claimant

did not meet his burden of demonstrating he was laid off. According to the Board,

it is irrelevant for purposes of the Trade Act whether Claimant failed or refused to

take a drug test. Rather, the finding of the Board most crit ical to this appeal is that

Claimant was discharged , not laid off. Having reviewed the record and the parties’

arguments, we agree with the Board.

Section 231 (a) of the Trade Act allows the payment of benefits to

“adversely affected worker[s].” 19 U.S.C. §2291 (a) . Section 247 of the Trade Act

defines an “adversely affect ed worker” as “an individual who, because of lack of

work in adversely affected employment, has been totally or partially separated

from such employment.” 19 U.S.C. §2319(2) (emphasis ad ded). The burden is on

the claimant to prove that he was separated from employment due to a lack of

work. Zywicki v. Unemployment Compensation Board of Review , 583 A.2d 49, 5 0

n.2 (Pa. Cmwlth. 1990).

6 Claimant also c ontends that the B oard denied him his due process rights by not allowing him the opportunity to confront Employer regarding its assertion that he refused to take or failed a drug test. This is not a due process challenge, but rath er a Sixth Amendment “confrontation
clause” challenge. However, because the Sixth Amendment applies only in criminal cases, this argument is meritless. See In re Adoption of T.M.F. , 573 A.2d 1035, 1041 (Pa. Super. 1990).

7 We note that Claimant does not argue in his brief that the B oard erred in denying his application for Trade Act benefits . Instead, Claimant’s brief makes multiple references to the Board denying Claimant unemployment benefits. See Claimant’s B rief at 10

– 11. Claimant also argues tha t the Board erred in denying Claimant “worker ’ s compensation benefits.”
Claimant’s Brief at 9. It is unclear whether Claimant’s counsel understands that this case concerns Claimant’s application for benefits under the f ederal Trade Act as opposed to a
di fferent statute

.5 “The fact that the claimant was awarded Pennsylvania u nemployment

compensation benefits does not determine his entitlement to [Trade Act ] benefits.”

Mosqueda v. Unemployment Compensation Board of Review , 431 A.2d 371, 373

(Pa. Cmwlth. 1981). As this Court has previously explained:

[T]he purpose of the [Unemployment Compensation] Law and the objective of the Trade Act are different. The UC Law provides financial assistance to displaced employees due to lack of work caused by Employer, whereas the Trade Act furnishes support to workers separated from the ir employment because of foreign competition.

Showers v. Unemployment Compensation Board of Review , 64 A.3d 1143, 1148

(Pa. Cmwlth. 2013).

In the matter sub judice

, Claimant failed to meet his burden of

showing that he was separated from his employment bec ause of a lack of work,

i.e. , that Employer laid him off for reasons related to foreign competition in the

coal mining industry

. The evidence of record support s a finding that Claimant was

discharged for some reason related to Employer’s drug test . For i nstance,

Claimant testified that many employees who took Employer’s drug test returned to

work. Moreover, Claimant did not receive a notice that he was being laid off.

Instead, Claimant received an insurance continuation package that indicated he had

bee n discharged.

Claimant correct ly assert s that there is no evidence that he committed

willful misconduct ; however, that inquiry is only relevant to Claimant’s eligibility

for unemployment benefits , which Claimant received in a different proceeding. In

orde r to obtain Trade Act benefits, Claimant had to prove that he was laid off.

Because Claimant failed to do so, t he Board properly denied his application.6 For all of the above reasons, the order of the Board is affirmed.

_____________________________________ MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph T. Gontis, :

Petitioner :

:

v. : No. 1652 C.D. 2015

: Unemployment Compensation Board : of Review, :

Respondent :

O R D E R

AND NOW, this 6 th day of May , 2016, the order of the

Unemployment Compensation Board of Review dated August 6, 2015, in the

above

- captioned matter is hereby AFFIRMED.

_____________________________________ MARY HANNAH LEAVITT, President Judge