              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Murphy Marine Services, Inc.,                  :
                       Petitioner              :
                                               :
                       v.                      :   No. 1291 C.D. 2016
                                               :   Submitted: January 20, 2017
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :



BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE JULIA K. HEARTHWAY, Judge
                 HONORABLE DAN PELLEGRINI, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                               FILED: May 18, 2017


       Murphy Marine Services Inc. (Employer) petitions for review of an Order of
the Unemployment Compensation (UC) Board of Review (Board), which, on
remand from this Court, found Byron A. Jones (Claimant) not ineligible for
benefits under Section 402(a) of the UC Law (Law).1 In its Petition for Review,
Employer argues that the Board erred in applying Section 402(a) of the Law and
instead should have utilized Section 402(b), 43 P.S. § 802(b), and/or Section
401(d)(1), 43 P.S. § 801(d)(1), which would have resulted in a finding of


       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(a).
ineligibility.2 After review, discerning no errors of law, abuse of discretion, or
procedural infirmities, we affirm.
       Claimant is a registered casual worker belonging to Local 1291 of the
Longshoremen’s International Association based in Philadelphia.                          (Board
Decision, June 29, 2016 (June Board Decision), Findings of Fact (FOF) ¶ 4.) He
reopened a claim for emergency unemployment compensation (EUC) benefits in
late April 2013. (Id. ¶ 1.) After working only some days during the week ending
May 18, 2013, Claimant filed a claim for benefits.3 (Id. ¶ 2.) The local UC
Service Center found Claimant not ineligible for benefits under Section 402(a) of
the Law.4 (Notice of Determination, R. Item 4.) Employer appealed on July 22,
2013, asserting as it does in this appeal, that eligibility was determined under the
wrong provision of the Law. (Petition for Appeal, R. Item 5.) A hearing was held
before a UC Referee (Referee) on August 26, 2013, at which only a witness for
Employer and Employer’s counsel appeared.5 Following the hearing, the Referee
affirmed the Service Center’s determination that Claimant was not ineligible for
benefits pursuant to Section 402(a). (Referee Decision, R. Item 9.) Specifically,


       2
          Although Employer raises the issue of whether Section 402(a) or Section 402(b)
properly applies in its Petition for Review, Employer devotes its brief to the issue of whether
Claimant is ineligible for benefits under Section 401(d)(1). Because Employer briefly discusses
the applicability of Section 402(b) in one paragraph of the brief, see Employer’s Br. at 11-12, we
find the matter was properly raised and will address it along with Employer’s argument
concerning Section 401(d)(1).
       3
         Another week previously was challenged but is not at issue in this appeal.
       4
          The Service Center found Claimant had refused work but because Employer did not
comply with Section 402(a) of the Law by notifying the Office of UC Benefits of a job offer in
writing within seven days, Claimant was deemed eligible. (Notice of Determination, R. Item 4.)
Whether Employer satisfied the notice requirements is not an issue before this Court.
       5
          Claimant was notified of the hearing, and the hearing notice was not returned as
undeliverable. (R.R. at 51a.)



                                                2
the Referee found Claimant “was not guaranteed any offers of work but [was]
merely offered the possibility of employment.” (Id.) Employer filed a timely
appeal to the Board, once again asserting the case was decided under the wrong
section of the Law. (Petition for Appeal, R. Item 10.) By Decision and Order
dated November 14, 2013, the Board affirmed, adopting and incorporating the
Referee’s findings and conclusions. (Board Decision and Order, Nov. 14, 2013, R.
Item 11.)
       Thereafter, Employer filed a Petition for Review with this Court, asserting
the Board erred in not finding Claimant ineligible under Sections 401(d)(1) and
402(b) of the Law.        Because Employer’s argument centered on the terms of
contractual agreements between members of the Ports of the Delaware River
Marine Trade Association (PMTA), to which Employer is a member, and various
locals, including Claimant’s, (PMTA Agreements), which were not part of the
record, we remanded that matter to the Board to determine which section of the
Law applied in light of the PMTA Agreements and whether Claimant was
ineligible under that section. Murphy Marine Servs., Inc. v. Unemployment Comp.
Bd. of Review (Pa. Cmwlth., No. 2232 C.D. 2013, filed Aug. 4, 2014), slip op. at
6-9.
       On remand, the Board requested a referee take additional evidence, and a
remand hearing was held on September 12, 2014. At the hearing, excerpts of the
PMTA Agreements were entered into evidence6 and Employer again offered the
testimony of its witness.

       6
         Our review is limited by having only excerpts of the PMTA Agreements in the record.
We would ordinarily remand the matter in such cases, but here, it was Employer’s Counsel who
introduced the excerpts in lieu of the full PMTA Agreements, which counsel stated exceed 1,100
pages, “the vast majority of [which were] not [] relevant.” (R.R. at 166a.) Because Employer
(Footnote continued on next page…)


                                              3
       The Board subsequently issued a new Decision and Order on June 29, 2016,
which made the following relevant findings of fact:

       4.     The [C]laimant is a registered casual worker who belongs to
              Local 1291 of the Longshoremen’s International Association
              based in Philadelphia.

       5.     Local 1291 along with two other longshoremen locals have an
              agreement with five companies that together comprise the
              [PMTA].

       6.     The [E]employer in this proceeding is located in Wilmington,
              Delaware, and is able to hire Philadelphia-based longshoremen
              through a reciprocal agreement with the PMTA and the
              Philadelphia locals.

       7.     The PMTA agreement with the various longshoremen’s locals
              governs the procedures for the companies to offer
              longshoremen work on a day-to-day basis.

       8.     The [C]laimant had a history of working intermittently for
              several of these companies.

       9.     The [C]laimant during April/May 2013 worked a total of 47
              hours for the [E]employer.

       10.    The union members typically work an assignment until it is
              completed, and then are unemployed until they pick up a new
              assignment, often from a different company in the PMTA.

       11.    Local members can telephone each morning to obtain a list of
              the work orders for the day prior to reporting to the hiring hall.

       12.    As a member of Local 1291, the [C]laimant is expected to
              report to the Philadelphia hiring center before he reports any
              place else.
_____________________________
(continued…)
provided the excerpts that it deems relevant, we do not perceive any prejudice in proceeding with
our review.



                                               4
      13.   The [C]laimant is permitted, but not required, to attempt to
            secure work in Delaware if work is not available in
            Philadelphia.

      14.   Hiring is usually completed in Philadelphia by 7:15 a.m., and in
            Wilmington by 7:30 a.m., although sometimes it can continue
            until 8:00 a.m. in Wilmington.

      15.   The Wilmington hiring facility is approximately 30 miles from
            the Philadelphia hiring facility.

      16.   When workers are hired at the Wilmington union hall, the
            contract requires that they be hired by seniority and in the
            following order: first, basic unit members of the three
            Wilmington locals; second, basic unit members of Philadelphia
            locals; third, secondary workforce members of the three
            Wilmington locals; fourth, Philadelphia-area secondary
            workforce members; fifth, Wilmington registered casuals; sixth,
            Philadelphia registered casuals; and seventh, unregistered
            casuals and new hires.

      17.   The [C]laimant obtained work through the Wilmington hiring
            facility on May 13 and 14, 2013.

      18.   On May 15, 2013, seven positions were filled at the
            Wilmington facility.

      19.   On May 15, 2013, the [C]laimant did not appear at the
            Wilmington hiring facility to seek work.

      20.   The [C]laimant would have had only the “possibility” of
            obtaining work at Wilmington on May 15, 201[3].

(FOF ¶¶ 4-20.)
      Based on the above, the Board concluded Section 402(a) of the Law, not
Section 402(b), was the proper provision because it found that Claimant was
considered unemployed on May 15, 2013. (June Board Decision at 4.) The Board
further concluded that because Claimant only had the “possibility” of obtaining


                                        5
one of the seven positions and because he was sixth in terms of preference of
hiring,7 it could not conclude that Claimant failed to accept an offer of suitable
work. (Id.) The Board also stated that although Claimant did not appear at the
hearings to testify, because Claimant registered for UC benefits, there was a
presumption that he was able and available for work, which was not rebutted by
Employer, and therefore, he was not ineligible under Section 401(d)(1) of the Law
either. (Id. at 4-5.) Employer now petitions for review of this Board Order.8
       First, Employer claims in its Petition for Review that the Board applied the
wrong provision of the Law. The Board found that, generally, union members
work an assignment until it is completed and then are considered unemployed until
they pick up a new assignment with one of the PMTA companies, making Section
402(a) of the Law the appropriate standard. (FOF ¶ 11; June Board Decision at 4.)
       Section 402(a), provides, in relevant part, that

       [a]n employe shall be ineligible for compensation for any week . . .
       [i]n which his unemployment is due to failure, without good cause, . .
       . to accept suitable work when offered to him . . . by any employer . .
       . ; however this subsection shall not cause a disqualification of . . .
       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 . . . .

43 P.S. § 802(a).        Section 402(b), which Employer claims applies, states, in
pertinent part, that “[a]n employe shall be ineligible for compensation for any week

       7
         The Board’s discussion section incorrectly states that Philadelphia-registered casual
workers were seventh in terms of hiring preference, not sixth, as stated in the Board’s findings of
fact. This error was harmless to the Board’s disposition.
       8
         This Court’s scope of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d
1006, 1009 n.2 (Pa. Cmwlth. 2014).



                                                6
. . . [i]n which his unemployment is due to voluntarily leaving work without cause
of a necessitous and compelling nature.” 43 P.S. § 802(b). This Court previously
determined that Section 402(a) of the Law applies to “claimants who, while
unemployed, refuse to accept an offer of suitable work,” whereas “[c]laimants who,
while employed, refuse to accept an offer of continued employment are deemed to
have quit their position, and are thus subject to Section 402(b) of the [Law].”
Hosp. Serv. Ass’n of Ne. Pa. v. Unemployment Comp. Bd. of Review, 476 A.2d
516, 518 (Pa. Cmwlth. 1984) (emphasis in original).
         The evidence establishes, as the Board found, that “[C]laimant is employed
by any one employer for the duration of his assignment, and then has a break in
service before accepting his next assignment” with one of the PMTA companies.
(June Board Decision at 3.) At the remand hearing, Employer’s witness testified
that Claimant was not required to accept work from only members of PMTA,
which is evidence that there was no ongoing employment relationship. (R.R. at
166a.) She also explained that there are a “large number of people who work a day
or two a month or maybe a day or two a year.” (Id. at 55a.) Furthermore, in its
appeal letter, Employer itself stated that work was on a “day-to-day” basis. (Id. at
120a.)     The PMTA Agreements are rife with discussion concerning hiring
practices. (See, e.g., id. at 59a (discussing automated hiring system), 61a-62a
(discussing hiring times), 66a (discussing guaranteed hours when “rehired”), 91a-
92a (discussing “re-employment” under the hiring system).)         In addition, the
PMTA Agreements recognize the “casual employment nature of this industry.”
(Id. at 81a.) None of this reflects an ongoing employment relationship. Therefore,
Section 402(a) is the appropriate legal standard by which Claimant’s eligibility for
benefits should be determined.



                                          7
       Having found that the Board did not err in applying Section 402(a), we must
now determine whether Claimant would have been ineligible under this provision.
As stated above, a claimant is ineligible for benefits if his unemployment is “due to
failure, without good cause, . . . to accept suitable work” offered to him. 43 P.S. §
802(a).    “Our court has interpreted [Section] 402(a) to require that claimants
demonstrate good faith through conduct consistent with a genuine desire to work
and be self-supporting.” Markby v. Unemployment Comp. Bd. of Review, 564
A.2d 1340, 1341 (Pa. Cmwlth. 1989).             Thus, Claimant will be ineligible for
benefits under Section 402(a) if: (1) an offer of suitable work was made; and (2),
the claimant did not have good cause for refusing the work.
       By Employer’s own admission, no offer of employment existed. Although
Employer’s witness initially testified Claimant was offered employment on May
15, 2013, (R.R. at 52a), when questioned further about the nature of the “offer,”
she acknowledged that it was an “offer for the possibility of employment not a
guarantee[d] offer of employment.” (Id. at 55a. (emphasis added).) There are
approximately 800 to 1,500 longshoremen, and 7 positions were open that day.
(Id. at 53a.) Because some of those positions required certification to operate
equipment, which Claimant did not have, Employer’s witness testified that it was
possible Claimant would not have been selected. (Id. at 54a.) Employer’s witness
admitted that not all longshoremen are guaranteed a position; rather, it is dependent
upon Employer’s need. (Id.) Based upon this evidence, we cannot conclude the
Board erred in concluding that Claimant did not fail to accept an offer of suitable
employment.9

       9
        Because there was no offer of suitable work, it is not necessary to address whether
Claimant had good cause to refuse same.



                                            8
      Employer also argues that Claimant was not able and available for work
under Section 401(d)(1) of the Law because he did not report to the Wilmington
hiring hall on May 15, 2013 to register for work. Section 401(d)(1) provides, in
relevant part, that “[c]ompensation shall be payable to any employe who is or
becomes unemployed, and who . . . [i]s able to work and available for suitable
work.” 43 P.S. § 801(d)(1). “A claimant is attached to the labor force as long as
[]he is able to do some type of work and there is a reasonable opportunity for
securing such work in the vicinity of [his] residence.” Wilder & Miller, P.C. v.
Unemployment Comp. Bd. of Review, 525 A.2d 852, 856 (Pa. Cmwlth. 1987)
(citing Cillo v. Unemployment Comp. Bd. of Review, 514 A.2d 287 (Pa. Cmwlth.
1986)). Here, the Board relied upon the presumption that Claimant was able and
available for work based upon his filing for UC benefits. Because Employer’s
witness did not know whether Claimant did or did not initially report to the
Philadelphia hiring hall that morning, the Board concluded Employer did not
successfully rebut that presumption.
      We agree that a claimant who registers for UC benefits is presumed to be
able and available for work. Pifer v. Unemployment Comp. Bd. of Review, 639
A.2d 1293, 1295 (Pa. Cmwlth. 1994). “Once Claimant established a prima facie
case of availability for work, the burden shifted to Employer to present evidence
that the [C]laimant was unable and unavailable for work.” Id. Here, Employer’s
witness testified she was not sure if Claimant registered for work in Philadelphia
on May 15, 2013. (R.R. at 167a.) A witness’s lack of knowledge cannot serve as
competent evidence to rebut a presumption. Employer’s witness also testified
Claimant did not report to Wilmington, but importantly, Claimant was not required
to register for work in Wilmington. (Id. at 166a.) Therefore, this cannot be used to



                                         9
disqualify Claimant either.      Because there was no evidence to rebut the
presumption that Claimant was able and available to work, the Board did not err in
concluding that Section 401(d)(1) did not disqualify Claimant.
      Based upon the foregoing, we conclude that the Board’s determination that
Claimant was unemployed on May 15, 2013, is supported by substantial evidence
and, as a result, the Board did not err in applying Section 402(a) instead of Section
402(b) of the Law. We also conclude that the Board did not err or abuse its
discretion in determining that Claimant was not ineligible for benefits under either
Section 402(a) or Section 402(d)(1) of the Law. Accordingly, we affirm the
Board’s Order.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                         10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Murphy Marine Services, Inc.,          :
                       Petitioner      :
                                       :
                 v.                    :   No. 1291 C.D. 2016
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent         :


                                    ORDER


           NOW, May 18, 2017, the Order of the Unemployment Compensation
Board of Review, entered in the above-captioned matter, is hereby AFFIRMED.




                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
