           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 adjudication of
the Unemployment Compensation Board of Review (Board) denying his claim for
a Trade Readjustment Allowance under the federal Trade Act of 1974 (Trade Act),
19 U.S.C. §§2101-2487.1 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
adversely 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 Labor 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 under the applicable state law. Id.
                Claimant was employed by PBS Coals, Inc. (Employer)2 as a section
mechanic from November 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, Claimant 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 Center 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 3rd, 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.


                                             2
                                                  ***
              [Referee]: And you’re saying 190 [employees] went for drug
              tests on September 3rd, 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 3rd.
              [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 not separated due to lack of work, but a purported
refusal or failed substance abuse test.” Referee’s Decision 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 because 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).


                                              3
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 critical 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 affected 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 added). 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, 50
n.2 (Pa. Cmwlth. 1990).


6
  Claimant also contends that the Board 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 rather 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 Board 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 Brief at 10 – 11. Claimant
also argues that 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 federal Trade Act as opposed to a
different statute.


                                               4
            “The fact that the claimant was awarded Pennsylvania unemployment
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 their 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 because 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 supports a finding that Claimant was
discharged for some reason related to Employer’s drug test.           For instance,
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
been discharged.
            Claimant correctly asserts 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
order to obtain Trade Act benefits, Claimant had to prove that he was laid off.
Because Claimant failed to do so, the Board properly denied his application.

                                         5
For all of the above reasons, the order of the Board is affirmed.

                        _____________________________________
                        MARY HANNAH LEAVITT, President Judge




                             6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph T. Gontis,               :
               Petitioner       :
                                :
           v.                   :    No. 1652 C.D. 2015
                                :
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


                                ORDER

            AND NOW, this 6th 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
