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

KATHLEEN M. HALWAS, Claimant


TRADE ACT DECISION
Hearing No. 02607350MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant worked for about 29 years for the West Bend Company. Her last day of work was May 17, 2002 (week 20), when she was discharged.

The claimant worked in a management position, with responsibility over approximately 20 other claimants.

The decision to discharge the claimant was made by Craig Weinart and Dean Durow. Weinart was West Bend's General Manager, and Durow worked in West Bend's Human Resources department. When the claimant was informed of her discharge, she was told that she was being discharged for not following directions of supervisor's instructions.

No one else was terminated at the time the claimant was. West Bend laid off approximately 20 union-represented workers for economic reasons at the end of June, 2002. In November, 2002, West Bend laid off approximately 70 union-represented workers and 10 office personnel.

This issue for decision in this case is whether the claimant was eligible for benefits under the Trade Act of 1974, 19 U.S.C. § 2101 et seq. The Trade Act provides that Trade Readjustment Allowances ("TRA") benefits are payable to "adversely affected workers" of certain employers affected by foreign competition. 19 U.S.C. § 2291 (a). Under the Trade Act, 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). For this reason, a person whose separation from employment with an adversely affected employer is caused by some reason other than "lack of work", is not eligible for TRA benefits. See, e.g., Frank Fore (LIRC, December 13, 2000), Peggy Dallas (LIRC, September 10, 2001).

The claimant disagreed with what she was told as to the reason West Bend had decided to discharge her, and she believed that the discharge was not justified. However, the issue is not whether the West Bend's dissatisfaction with the claimant's performance was objectively justified, but is instead simply what West Bend's actual reasons were for the decision to terminate the claimant. See, Robert Fling (LIRC, April 5, 2002). The reason that an employer makes a decision to terminate a claimant, involves the question of the intent and motivation of the persons who made the decision, and such intent must be inferred from actions and statements. Here, the statements made to the claimant indicated unequivocally that she was being terminated because West Bend was dissatisfied with her performance.

The claimant appears to believe that the fact that West Bend laid off other claimants for economic reasons at the end of June, 2002 and again in November, 2002, establishes that her separation was also a layoff for economic reasons. The commission does not agree that these economic layoffs prove that the claimant's termination was for economic reasons. The claimant's termination was well separate in time from those events, and the fact that it was a termination of a single employee also distinguishes it. Unlike those large layoffs, the termination of the claimant appears to have been precisely what West Bend told the claimant at the time: a termination based on dissatisfaction with the claimant's performance.

The claimant also points to the fact, that she was told that West Bend was not going to contest her entitlement to unemployment insurance benefits. However, this does not persuade the commission that West Bend was dissembling when it told the claimant that it had decided to terminate her because of dissatisfaction with her performance. West Bend could well have been aware, that not all unsatisfactory performance by a claimant constitutes disqualifying "misconduct".

Indeed, the fact that West Bend told the claimant that it was not going to contest her entitlement to unemployment insurance benefits, tends to persuade the commission that West Bend was being honest when it told her that it had decided to terminate her because of dissatisfaction with her performance. A determination that a claimant is entitled to unemployment insurance benefits affects an employer financially, because it impacts the unemployment insurance reserve account of that employer. By contrast, a determination that a claimant is entitled to TRA benefits does not affect an employer financially, because those benefits are paid out of federal funds. The only conceivable motive West Bend might have had to dishonestly assert that it terminated the claimant for performance reasons when in fact doing so due to lack of work, would have been to avoid the effect of her receiving unemployment insurance benefits. The fact that West Bend decided not to contest claimant's eligibility for unemployment insurance benefits tends to demonstrate that it was not so motivated.

The commission therefore finds that the claimant was not separated from adversely affected employment due to a lack of work, within the meaning of 19 U.S.C. § 2319.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the claimant is ineligible for Trade Readjustment Allowances.

Dated and mailed May 20, 2003
halwaka . trr : 110 : 8   TRA

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


cc: West Bend Company


NOTE: The commission agreed with the ultimate conclusion arrived at by the administrative law judge. It has issued its own decision in this matter in order to make sufficient findings of fact to support that conclusion.


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uploaded 2003/05/30