       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Murphy Marine Services, Inc.,          :
                                       :
                        Petitioner     :
                                       :
            v.                         :   No. 2232 C.D. 2013
                                       :
Unemployment Compensation              :   Submitted: May 16, 2014
Board of Review,                       :
                                       :
                        Respondent     :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                 FILED: August 4, 2014

      Murphy Marine Services, Inc. (Employer) petitions for review of an Order
of the Unemployment Compensation (UC) Board of Review (Board) affirming the
UC Referee’s Decision granting UC benefits to Byron A. Jones (Claimant). The
Board determined that because Employer did not make a guaranteed offer of
employment to Claimant and Employer did not notify the Office of UC Benefits of
the Department of Labor and Industry (Department) of any job offer in writing
within seven days of making the alleged offer, Claimant was not ineligible for UC
benefits pursuant to Section 402(a) of the UC Law.1 On appeal, Employer argues
that the Board’s determination is not supported by substantial evidence because the
record shows that Claimant did not report to the local union hiring hall for work.


       The facts, as adopted by the Board, are as follows:

       1. The claimant is a member of the AFL-CIO International
          Longshoreman’s Local.

       2. The local where the claimant is a member supplies laborers for
          ports in the Greater Philadelphia area, Murphy Marine and other
          Delaware River employers of the International Longshoreman’s
          Association.

       3. The Ports Marine Trade Association has a contract with locals
          whereby union members are hired on a day[-]to[-]day basis.

       4. Casual workers[2] are also hired on a day[-]to[-]day basis to
          supplement the union workforce.

       5. Under the Ports Marine Trade Association, casual workers can
          call into an automated phone recording to find out if work is
          available and must appear at a union hiring center to be considered
          for hiring.


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(a). Section 402(a) provides that an employee is ineligible for UC benefits where his or her
“unemployment is due to failure, without good cause, either to apply for suitable work” or to
accept an offer of suitable work by the employment office or any employer provided that the
employer notifies the employment office of the offer within seven days of making the offer. Id.

       2
         Although the Board uses the term “workers” or “worker” to describe the union
workforce, it appears from the record that the individuals hired by the Ports Marine Trade
Association on a day-to-day basis are members of the locals regardless of their status in the
union. See Employer’s Petition for Appeal from Determination, Ex. A, R.R. at 37a (stating
“Claimant is a Registered Casual member of AFL-CIO International Longshoremen’s
Association Local 1291 in Philadelphia” (emphasis in original)).

                                              2
      6. The claimant is a casual worker to whom work is made available
         on a daily basis pursuant to the contract.

      7. The union contract provides for the selection of workers at the
         discretion of those choosing based upon seniority. Union workers
         are to report daily to the union hall work center, badge in each
         morning and wait to see if work is available. All union workers
         are not guaranteed offers of work.

      8. On May 15, 2013, the Ports Marine Trade Association had 7 slots
         open[,] [f]or which hundreds of union workers were vying for
         these jobs.

      9. On May 15, 2013, the claimant did not report to the union hall for
         work.

      10. The claimant was not guaranteed any offers of work but merely
          offered the possibility of employment.

(UC Referee’s Decision, Findings of Fact (FOF) ¶¶ 1-10.) Claimant applied for
UC benefits. The UC Service Center issued a determination finding that Claimant
refused a job as a longshore laborer with Employer; however, because Employer
did not notify the Department of the job offer in writing within seven days of
making the offer as required by Section 402(a) of the UC Law, Claimant was not
ineligible for benefits. (Notice of Determination, R.R. at 25a.)


      Employer appealed the UC Service Center’s determination.          Employer
contended that the UC Service Center incorrectly applied Section 402(a) of the UC
Law because Claimant, and other workers like him, are hired on a day-to-day basis
and, pursuant to the contract between the Ports Marine Trade Association (PMTA)
and the locals, are not required to take the jobs. (Employer’s Petition for Appeal
from Determination, R.R. at 31a-32a.) Employer alleged further that forcing it to
comply with the seven day notification requirement was impracticable due to the

                                          3
nature of the hiring process that involved hundreds of workers on a daily basis.
(Employer’s Petition for Appeal from Determination, R.R. at 32a.)            Finally,
Employer alleged that the correct provision of the UC Law was Section 402(b)
because Claimant, essentially, voluntarily left his employment by not accepting the
day-to-day employment offered pursuant to the contract. (Employer’s Petition for
Appeal from Determination, R.R. at 32a.)


      A UC Referee subsequently held a hearing.            Employer presented the
testimony of Diane Woznicki (Secretary). Claimant did not appear at the hearing.
The UC Referee considered the circumstances surrounding Claimant’s claim for
UC benefits and, based on the findings of fact, concluded that there was no
guaranteed offer of work to Claimant. (UC Referee’s Decision at 2.) The UC
Referee concluded further that Employer did not notify the Department in writing
of any job offers to Claimant within seven days of the alleged offer as required by
Section 402(a) of the UC Law. Accordingly, the UC Referee determined that
Claimant was not ineligible for UC benefits pursuant to Section 402(a) and
affirmed the UC Service Center’s determination. (UC Referee’s Decision at 2.)
The UC Referee did not address whether Claimant was ineligible under any other
provision of the UC Law.


      Employer appealed the UC Referee’s Decision to the Board.             Therein,
Employer again alleged that Section 402(a) was not applicable.          (Employer’s
Petition for Appeal from Referee’s Decision, R.R. at 72a.) Employer asserted that
the UC Referee should have applied Section 401(d)(1) of the UC Law and found
Claimant ineligible for UC benefits because his failure to report to the union hiring


                                         4
hall on May 15, 2013 showed that he was not able and willing to work.
(Employer’s Petition for Appeal from Referee’s Decision, R.R. at 72a.) Employer
also asserted again that the correct provision of the UC Law applicable to this
matter was Section 402(b) and that forcing it to comply with the seven day
notification requirement was impracticable. (Employer’s Petition for Appeal from
Referee’s Decision, R.R. at 72a-73a.)


       The Board affirmed the UC Referee’s Decision without making any
independent findings of fact and conclusions of law. Employer now petitions this
Court for review.3


       On appeal, Employer asserts that the Board erred by not finding Claimant
ineligible pursuant to Sections 401(d)(1) and 402(b) of the Law. Employer argues
that the Board’s decision ignores the contractual terms by which Claimant was
offered work. Employer contends that, because the contractual terms provide that
Claimant is not required to accept any suitable work offered each day through the
union halls, Section 402(a) is not applicable. See Section 402(a), 43 P.S. § 802(a)
(providing that “this subsection shall not cause a disqualification of a waiting week


       3
          This Court’s review of an order of the Board “is limited to determining whether
constitutional rights were violated, whether an error of law was committed, whether a practice or
procedure of the Board was not followed or whether the findings of fact are supported by
substantial evidence in the record.” Western & Southern Life Insurance Co. v. Unemployment
Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006). “In determining
whether substantial evidence exists, we view the record in the light most favorable to the party
that prevailed before the Board, and give that party the benefit of all reasonable inferences that
can be drawn from the evidence.” Big Mountain Imaging v. Unemployment Compensation
Board of Review, 48 A.3d 492, 494-95 (Pa. Cmwlth. 2012).



                                                5
or benefits under the following circumstances: when work is offered by his
employer and he is not required to accept the offer pursuant to the terms of the
labor-management contract or agreement”).         Employer asserts that, because
Claimant did not abide by the contractual terms and report to the union hall on
May 15, 2013 for available work, the Board should have deemed him ineligible
under Sections 401(d)(1) and 402(b).          Employer contends that Claimant
demonstrated an unwillingness to work by not reporting to the union hall for the
work that was available to the seven casual employees and that as a day-to-day
temporary employee, Claimant had an obligation to make a reasonable effort to
preserve his employment.


      As stated previously, although Employer raised these arguments before the
Board, the Board did not address whether these sections of the UC Law were
applicable. While the Board made some findings regarding the nature of the
contractual arrangement between PMTA and casual workers such as Claimant, the
Board only ruled on whether Claimant was ineligible for UC benefits pursuant to
Section 402(a) of the UC Law.        However, given the unusual nature of the
contractual employment arrangement between Employer and the union members, it
is unclear to this Court which section of the UC Law is applicable here.


      Pursuant to Section 402(a) of the UC Law, an employee is ineligible for
compensation for any week “[i]n which his unemployment is due to failure,
without good cause, either to apply for suitable work at such time and in such
manner as the department may prescribe, or to accept suitable work when offered
to him by the employment officer or by any employer.”           43 P.S. § 802(a).


                                         6
Pursuant to Section 401(d)(1), a claimant will be paid UC benefits if he “[i]s able
to work and available for suitable work.” 43 P.S. § 801(d)(1). Pursuant to Section
402(b), a claimant is ineligible for UC benefits “for any week . . . [i]n which his
unemployment is due to voluntarily leaving work without cause of a necessitous
and compelling nature . . . .” 43 P.S. § 802(b). The claimant bears the burden of
proving his or her eligibility under each of these sections.          See Rising v.
Unemployment Compensation Board of Review, 621 A.2d 1152, 1154 (Pa.
Cmwlth. 1993) (holding that, pursuant to Section 402(a), the claimant bears the
burden on both the suitability of the work and whether there is good cause not to
accept suitable work when offered); Harwood v. Unemployment Compensation
Board of Review, 531 A.2d 823, 825 (Pa. Cmwlth. 1987) (stating that under
Section 401(d)(1), a claimant must show that he is able to do some type of work
and that a reasonable opportunity for securing work exists); Brunswick Hotel &
Conference Center, LLC v. Unemployment Compensation Board of Review, 906
A.2d 657, 660 (Pa. Cmwlth. 2006) (holding that a claimant has a burden to show,
inter alia, that he made a reasonable effort to preserve his employment).


      As found by the Board, some type of reciprocal contract exists between the
PMTA and the local unions which sets forth terms and conditions of employment.
(FOF ¶¶ 2-7.) This contract requires the union members to call an automated
phone recording to determine if work is available and, if so, appear that day at their
respective union hall in order to be hired for any available work. (FOF ¶ 5.)
Employer contends that union members do not have to accept offered available
work and that the union members are, therefore, day-to-day temporary employees;
however, the provisions of the entire contract are not in the record and it is unclear


                                          7
exactly what type of employees they are. It also appears that union members who
are available for work are only required to report to the union halls and do not need
to look for work, or accept work, from any employers other than the members of
PMTA. See FOF ¶ 7 (“Union workers are to report daily to the union hall work
center, badge in each morning and wait to see if work is available.”)           This
employment arrangement suggests that the union members are generally
considered employed unless they do not report or do not register for work on a
particular day, in which case either Section 401(d)(1) or Section 402(b) might be
applicable to their claims. However, it is also possible that union members are
considered generally unemployed, daily workers, who are only employed on the
days they can find work, in which case Section 402(a) might be applicable to their
claims. Moreover, in this case, the Board made a finding that casual workers like
Claimant “must appear at a union hiring center to be considered for hiring,” (FOF ¶
5), yet it is undisputed that Claimant did not appear.


      The Board did not clarify these issues and found, instead, that because
Employer failed to provide notice of any employment offer within seven days to
the Department as required by Section 402(a), Claimant was not ineligible for
benefits.   However, Employer argues that, given the large number of union
workers that report to the union halls on a daily basis, it would be impractical to
require Employer to provide such notice.         Employer asserted during the UC
Referee’s hearing that the PMTA employs approximately 1500 union members and
it would be impossible for Employer to provide the Department, each day, with a
list of every union member that would have been offered the possibility of
employment had they appeared. (Hr’g Tr. at 3, 5, R.R. at 59a, 61a.)


                                          8
      Given the large number of union members, it appears likely that requiring
Employer to comply with the notice requirement would force it to send a list of
literally hundreds of names to the Department every single day. This Court has
held that compliance with the notice provision of Section 402(a) is directory and
not mandatory; therefore, compliance is not required when it would be inconsistent
with the objectives of the UC Law and the claimant is not prejudiced by the delay.
McKeesport Hospital v. Unemployment Compensation Board of Review, 619 A.2d
813, 815 (Pa. Cmwlth. 1992).       As we explained, this Court “‘cannot declare
claimants to be eligible and grant them benefits merely as a result of rigid
application of technical standards where, otherwise, said claimants are clearly
ineligible.’”   Id. (quoting Barillaro v. Unemployment Compensation Board of
Review, 387 A.2d 1324, 1328 (Pa. Cmwlth. 1978)).


      These and other unresolved ambiguities in the record raise questions as to
which section of the UC Law is applicable here when a casual union member, such
as Claimant, makes a claim for UC benefits. Accordingly, we conclude that a
remand is necessary for the Board to resolve the ambiguities through additional
fact finding and then apply the appropriate section of the UC Law. Accordingly,
for the foregoing reasons, we vacate the Board’s Order and remand this matter for
the Board to determine which section or sections of the UC Law are applicable in
light of the contractual employment agreement at issue and to determine
Claimant’s eligibility under whatever section or sections the Board deems
applicable in this matter.
                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge

Judge Brobson did not participate in the decision in this case.
                                          9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Murphy Marine Services, Inc.,           :
                                        :
                         Petitioner     :
                                        :
            v.                          :   No. 2232 C.D. 2013
                                        :
Unemployment Compensation               :
Board of Review,                        :
                                        :
                         Respondent     :



                                      ORDER

      NOW, August 4, 2014, the Order of the Unemployment Compensation
Board of Review entered in the above-captioned matter is VACATED and this
matter is REMANDED for proceedings consistent with the foregoing opinion.


      Jurisdiction relinquished.



                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge
