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


BRIAN G. BLATZ, Claimant

TRADE ACT DECISION
Hearing No. 01000756LX


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's request for training is denied.

Dated and mailed May 15, 2001.
blatzbr . tsd : 110 : TRA

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case involves a claim for training benefits under the Trade Act of 1974, 19 U.S.C. § 2101 et seq., a federal law intended to ameliorate the effects on workers from foreign competition which adversely affects businesses here in the U.S. A determination was made that the applicable statutory conditions did not allow approval of the training program sought by the claimant, and following a hearing, an administrative law judge affirmed that determination. (1)   The claimant has sought commission review.

The Trade Act sets out the standards which must be met for training to be approved, in 19 U.S.C. § 2296:

19 U.S.C. § 2296. Training
(a) Approval of training; limitation on expenditures; reasonable expectation of employment; payment of costs; approved training programs; nonduplication of payments from other sources; disapproval of certain programs; exhaustion of unemployment benefits; promulgation of regulations

     (1) If the Secretary determines that -

(A) there is no suitable employment (which may include technical and professional employment) available for an adversely affected worker,
(B) the worker would benefit from appropriate training,
(C) there is a reasonable expectation of employment following completion of such training,
(D) training approved by the Secretary is reasonably available to the worker from either governmental agencies or private sources (which may include area vocational education schools, as defined in section 195(2) of the Vocational Education Act of 1963, and employers)
(E) the worker is qualified to undertake and complete such training, and
(F) such training is suitable for the worker and available at a reasonable cost,

the Secretary shall approve such training for the worker.
...
(e) "Suitable employment" defined.
For purposes of this section the term "suitable employment" means, with respect to a worker, work of a substantially equal or higher skill level than the worker's past adversely affected employment, and wages for such work at not less than 80 percent of the worker's average weekly wage.

The commission agrees with the findings and conclusions of the administrative law judge that the request for approval of training was properly denied in this case, because it was not established that the first of the listed conditions - that there is no suitable employment available for the claimant - was satisfied.

The requirement that there be "no suitable employment...available for [the] adversely affected worker" is one that must be met, or else the training cannot be approved. The question is therefore whether the evidence establishes that there are no positions available. The commission does not believe that it does. To the contrary, the record supports the finding that there is suitable employment available. The Labor Market Analyst testified that based on his experience with the labor market in claimant's area, there were approximately 250 to 300 machinist positions, and that the median pay rate for those positions was $13.67 per hour, which is well over the $12.88 per hour which corresponds to 80% of the claimant's previous rate. While the Labor Market Analyst noted that this assessment of the labor market for machinists involved both vacant and filled positions, the commission believes that the evidence is sufficient to rule out any conclusion that there are "no" positions available - that being the statutory standard. The Labor Market Analyst testified that he believed that given the labor market for machinists, the claimant should be able to locate a position within a number of months. That testimony as well is contrary to any conclusion that there are "no" positions available.

In support of his argument that there are no suitable positions available, Blatz pointed to the fact that he had not, as of the time of hearing, found a position. However, the commission does not believe that the fact that a claimant has not found a position as of the time of hearing, is in itself adequate to carry the burden of proving that there are no positions available in the claimant's labor market area. See, Marshall v. Commissioner of Jobs and Training, 496 N.W.2d 841, 843 (Ct. of App. of Minnesota, 1993) (claimant's inability to obtain suitable jobs does not necessarily make suitable employment "unavailable" within the meaning of this section). Again, it must be noted that the applicable statutory standard in 19 U.S.C. § 1926 (a)(1)(A) looks to whether it can be said, that there is no suitable employment available. It may be that a market for a particular kind of position is not particularly strong and that it is correspondingly a more challenging process to find a position, but that is simply not the same thing as there being no employment available in such positions.

Blatz cites the fact that Vern Glenn, the department TAA specialist with whom he worked in submitting his claim, had checked a box indicating that the prospects of Blatz obtaining suitable employment in his labor area within the next three months was "not reasonable". However, the commission does not find this to be persuasive as evidence that the applicable statutory standard was met. For one thing, the form in question (a "TRA Employability Assessment and Employment Plan") was not designed or intended for use in evaluation of whether the statutory standards for training were met. It contains a place on which it can be indicated whether the prospects of obtaining suitable employment in the labor area in the next three months at the current skill level are "Reasonable (50% or greater)" or "Not Reasonable". However, the relevant statutory standard in 19 U.S.C. § 2296 (a)(1)(A) does not look to such standards; instead, it asks simply whether it is established that there are no suitable jobs available. For another thing, Glenn explained his "Not Reasonable" assessment by noting on the form that the barriers to obtaining a reasonable prospect of employment included that fact that "There is not a lot of mechanic jobs in a factory that pays $16.00 per hour". However, the applicable statutory test involves "suitable employment" which is defined as positions paying at least 80% of the claimant's previous wage; in the case of Mr. Blatz, that 80% figure is $12.88/hour. Thus, Glenn's "Not Reasonable" assessment was not necessarily indicative that it was not reasonable to think that Blatz could obtain employment paying $12.88/hour.

Blatz asserts that he asked the Labor Market Analyst where he got his information from and he handed the claimant a pamphlet from the Bureau of Workforce Information, entitled "A Guide To Employment Opportunities In Western Wisconsin", dated 1997. However, based on the testimony of the Labor Market Analyst at the hearing, the commission is satisfied that he considered recent data in arriving at his conclusion that there were about 250 to 300 machinist positions (either filled or vacant) in the area within 30 miles of the claimant's home. The Labor Market Analyst mentioned, among other things, having had the benefit of a recent survey in the 8-county area he worked with, as well as recent unemployment rate information. (2)    The Labor Market Analyst testified that he was familiar with wages and hours and other conditions of employment in the counties in claimant's area, and that his opinion was based on his experience with those counties and with the demand for machinists there, from talking with employers in the area, and from wage survey information. The commission credits the testimony and opinions of the Labor Market analyst as reliable.

For the reasons given above, the commission agrees with the findings and decision of the administrative law judge, that it was not established that was no suitable employment available for Blatz. That standard must be met before training can be approved. Because it was not met here, the request for training was appropriately denied.


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Footnotes:

(1)( Back ) The Trade Act provides that its programs which provide benefits to workers displaced by the effects of foreign competition are to be administered by the states through their unemployment insurance agencies.

(2)( Back ) This area in question encompasses Buffalo, Crawford, Jackson, Juneau, La Crosse, Monroe, Trempeleau and Vernon Counties.


uploaded 2001/05/16