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


In the matter of the
Trade Readjustment Allowance of

STEPHEN E WIDEEN, Claimant

Involving

TRADE ACT OF 1974, AS AMENDED

TRADE ACT DECISION
Hearing No. 97002873MD


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, except that it makes the following modifications : 

Delete the second paragraph on page 5 of the decision of the ALJ.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe's request for approval of reimbursement for training costs and related assistance for the trimester of October of 1996 through June 1997 is denied.

Dated and mailed September 29, 1997
wideest.tmd : 110 : 

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

This case arises under the Trade Act of 1974, which provides for various benefits to employes who suffer loss of employment in connection with adverse affects on employers due to foreign competition. The benefits can include payment of (re)training costs.

The issue presented here is whether retroactive payments can be approved for training expenses for training prior to the date of a certification that an employer was adversely affected. As the ALJ stated, the rules implementing the Trade Act are absolutely clear that no payments can be made under the Trade Act until a certification is made and coverage and eligibility of a claimant are determined, and that retroactive payments for training can not be approved.

The claimant urged that retroactive payments could be justified on the theory that the employer "obstructed" the efforts of the department to communicate information about the Trade Act to the employes, and that if this had not happened, a petition might have been filed earlier, with the result that the certification would have occurred earlier and the training in question could have been approved and paid for. In making this argument, he has relied on 20 CFR 617.56, entitled "Inviolate rights to TAA", which provides : 

Except as specifically provided in this Part 617, the rights of individuals to TAA shall be protected in the same manner and to the same extent as the rights of persons to UI are protected under the applicable State law. Such measures shall include protection of applicants for TAA from waiver, release, assignment, pledge, encumbrance, levy, execution, attachment, and garnishment of their rights to TAA, except as provided in § 617.55. In the same manner and to the same extent, individuals shall be protected from discrimination and obstruction in regard to seeking, applying for, and receiving any right to TAA.

The commission agrees with the Administrative Law Judge, that there was no "obstruction", within the meaning of this rule. Rockwell did not "obstruct" anyone's attempt to seek, apply for, or receive benefits; it simply elected not to help in the process. While Rockwell could have chosen to voluntarily allow representatives of the Department of Workforce Development to attend and make a presentation concerning Trade Act benefits at the meeting which Rockwell held for its employes concerning the planned closure in August, 1996, it was under no legal obligation to do so. It complied with the requirements of the "Plant Closing" law, Wis. Stat. § 109.07. The commission does not believe that a finding of "obstruction" could be based on Rockwell's exercise of its legal right to decide who could or could not appear at a private meeting it held for its employes.

The commission also agrees with the Administrative Law Judge, that the requested relief cannot be premised on action (or inaction) of the department prior to the issuance of the certification.

NOTE :  Because there is no basis for finding that Rockwell engaged in "obstruction" within the meaning of 20 CFR 617.56, it is not necessary to address the question of whether such a finding would allow the result sought by claimant. For this reason, the commission has modified the Administrative Law Judge's decision to delete his discussion of this issue. The commission does not reach, nor does it intend to express any opinion on, the question of what action might be appropriate or permissible in a case in which there was "obstruction" within the meaning of 20 CFR 617.56.

cc :  Linda L. Hale, Attorney for Claimant


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