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

NANCY L REPKA, Claimant

TRADE ACT DECISION
Hearing No. 02201782EC


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 employee is not eligible for Trade Readjustment Allowances.

Dated and mailed December 23, 2002
repknan . tsd : 110 :  TRA

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

This case concerns the question of the eligibility of claimant Nancy L Repka for re-training benefits under the Trade Act of 1974.

Benefits under the Trade Act may only be paid to an "adversely affected worker". 19 U.S.C. § 2319(2) states that for purposes of the Trade Act, the term "adversely affected worker" refers to an individual who has been totally or partially separated from employment because of lack of work. Thus, for a claimant to be eligible for benefits under the Trade Act they must have been separated from work "because of lack of work". See, e.g., Frank C. Fore (LIRC, December 13, 2000) (voluntary separation before and in anticipation of business closing is not "because of" lack of work).

While the claimant's Purchasing Clerk position was eliminated because of lack of work, the claimant's employment with her employer did not end because of lack of work. She had an opportunity to continue to be employed with the employer, in a telephone order clerk position. She chose not to take that opportunity. For this reason, it cannot be found that she was separated from employment because of lack of work.

The commission notes, that the claimant also filed a claim for benefits under Wisconsin's Unemployment Compensation Act, and that in a separate decision issued in connection with that claim the commission has found that the claimant was entitled to unemployment compensation benefits. However, the rationale of that decision does not carry over to her claim for benefits under the Trade Act.

The issue presented under the UC Act, was whether the claimant's separation from employment was a voluntary termination within the meaning of Wis. Stat. § 108.04(7)(a), or a discharge within the meaning of Wis. Stat. § 108.04(5). The commission concluded that the separation was a discharge rather than a quitting, notwithstanding the fact that the claimant elected to be laid off, because of the rule that an employer's acquiescence in an employee's request to be laid off makes the separation a discharge.

This was relevant to the claimant's claim for unemployment compensation benefits, because the important eligibility issue was whether the disqualification of Wis. Stat. § 108.04(7)(a) for voluntary quits would take effect. However, that is not the issue with respect to the claimant's claim for benefits under the Trade Act. The issue there, as noted, is whether the claimant was separated from employment because of lack of work. While the claimant's separation may not be considered a voluntary quitting within the meaning of Wis. Stat. § 108.04(7)(a), it is also not a separation "because of lack of work" within the meaning of 19 U.S.C. § 2319(2). Therefore, the claim for benefits under the Trade Act must be denied.


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