Wis.LIRC UC Decision: Fore - December 13, 2000 - TRA - voluntarily leaving affected work before and in anticipation of the business closing - loss of work in these circumstances is not "because of lack of work"

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

FRANK C FORE, Claimant

TRADE ACT DECISION
Hearing No. 00201415EC

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the claimant is not eligible for Trade Readjustment Allowances based on his separation in February of 2000. The matter is remanded for an investigation as to any layoff or separation in December of 1999 to determine whether the circumstances were such as to qualify him for TAA benefits.

Dated and mailed December 13, 2000
forefra.tsd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Claimant's former employer, the Lind Shoe Company, was determined to have been "adversely affected" by foreign competition, thus creating the potential for employees separated from it to receive TRA benefits under the Trade Act of 1974, 19 U.S.C. � 2101 et seq. However, these benefits were denied to claimant, because he was not separated from his employment there because of lack of work. After learning that Lind planned to close in the near future, the claimant quit his job there in February, 2000 in order to take another job. Unfortunately, he was then laid off from that job after only a few weeks. The Lind Shoe Company did not close until June, 2000.

In his petition for review, the claimant states that he "does not understand why all [his] benefits are being taken away from [him] because [he] took the initiative to seek out work after the notice was received that the plant was shutting down." He states that he felt a moral obligation to seek and obtain work after the closing was announced was given. He suggests that the Appeal Tribunal has "truly lost the human issue to this situation".

The Trade Act of 1974, 19 U.S.C. � 2101 et seq., provides that TRA benefits are payable to "adversely affected workers". 19 U.S.C. � 2291 (a). Claimant has argued that he was an "adversely affected worker" because he had been told that his employer was going to be closing, but this theory cannot be accepted because the Trade Act contains an express definition of the term "adversely affected worker" which is inconsistent with it. The Trade Act provides that the term "adversely affected worker" means an individual who has been totally or partially separated from employment with an adversely affected employer because of lack of work. 19 U.S.C. � 2319 (2). It is not disputed, that the claimant's separation from employment in February of 2000 did not occur because of a lack of work for him with his employer at that time.

The relevant definition in the Trade Act is clear and unambiguous. It represents a judgment by the U. S. Congress that applying a particular rule -- i.e., that TRA benefits will only be paid to workers who are separated from their employment with the adversely affected employer because of lack of work -- will achieve the overall purpose behind the Trade Act.

Like any rule of law, the definition of "adversely affected worker" draws a line between certain types of situations. Of course, there will be cases in which it appears in retrospect that if the line had been drawn in a different way, it might have had a result which could be argued to be in keeping with the purpose of the law. However, neither the Appeal Tribunal nor the commission have the authority to second-guess the judgment of the Congress on this question. It drew the line defining who would be entitled to TRA benefits in such a way that, under the facts here, the claimant is not entitled to them based on his separation from employment in February of 2000. The Appeal Tribunal decision must therefore be affirmed.

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