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

JULIE V. DE BAUCHE, Claimant

TRADE ACT DECISION
Hearing No. 02404282AP


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

Background - The Trade Act of 1974, 19 U.S.C. § § 2101 et seq., created a program to assist individuals who became unemployed as a result of the adverse effect on their employers of increased imports, to return to suitable employment. This case concerns the claimant's eligibility for certain benefits under that program.

Benefits available under the Trade Act can include provision of and payment of expenses of reemployment services such as counseling, testing, training, placement, and other supportive services. See, 20 C.F.R. § 617.1(a). Benefits can also include regular weekly cash payments (or "allowances") to claimants, referred to as "Trade Readjustment Allowances" (or "TRA"). See, 20 C.F.R. § § 617.1(b), 617.3(nn). (1)

Under the Trade Act, there are two kinds of TRA benefits. Eligible claimants may be entitled to receive up to 26 weeks of TRA so long as they are either in approved training under the Act, have completed such training, or have been issued a waiver of the training requirement. This benefit is referred to as "basic TRA". In addition, eligible claimants may be entitled to receive up to 26 more weeks of TRA after they have exhausted their entitlement to "basic TRA". This benefit is referred to as "additional TRA". Unlike basic TRA, additional TRA may only be paid for weeks in which the claimant is actually in approved training under the Act. See, 20 C.F.R. § 617.15.

Under the Act, it is possible for a claimant to receive TRA without also receiving reemployment services such as training, and vice-versa. Thus, a claimant may be receiving basic TRA but not be receiving any training benefits, in situations in which the claimant is not in training because the training requirement has been waived for them or they have completed a training program. Conversely, a claimant may be receiving training benefits but not TRA, in situations in which they have begun a training program and are still receiving regular state unemployment insurance payments, or are continuing in a lengthy training program and are no longer entitled to TRA because that entitlement has been exhausted, or ended for other reasons.

One reason besides exhaustion that a claimant's entitlement to TRA may end, is that their "eligibility period" for TRA may have expired. The eligibility period for TRA is a limitation on that entitlement which is separate and distinct from the limitation on the number of weeks of TRA that may be paid. The eligibility period is a period of contiguous weeks within which any entitlement to basic TRA and additional TRA must be paid out. See, 20 C.F.R. § 617.3(m). The specific issue in this case concerns the effect of the "eligibility period" limitation on the claimant's right to receive "additional TRA" benefits.

History of this case - The claimant was laid off by her employer, Paragon Electric, due to lack of work. Paragon had been certified by the U.S. Department of Labor as having been adversely affected by foreign competition, and this made the claimant potentially eligible for benefits under the Trade Act.

After she was laid off by Paragon, the claimant contacted the Department of Workforce Development about receiving benefits under the Act, including training benefits. Working with the claimant, a TAA coordinator in the department's Manitowoc office developed a plan for a training program for the claimant in the Machine Tooling Techniques program at Northeast Wisconsin Technical College in Green Bay. Pursuant to the department's regular practices in the administration of training benefits under the Trade Act, the department and the claimant entered into a contract, in July, 1999, defining the terms of the training program that had been developed for the claimant and that was to be funded through TAA.

The Machine Tooling Techniques program at NWTC is a two-year program requiring completion of 68 credit hours and leading to an Associate Degree. However, the training contract between the department and the claimant specified that the training to be provided under that contract would extend for only 36 weeks of studies in that program. It appears that the reason for this was that a counselor at NWTC had learned that the claimant had completed a tool and die apprenticeship years before and had approved the claimant's entry into the second year of the Machine Tooling Techniques program. It also appears that, whether for this reason or otherwise, the department's TAA coordinator had been under the impression that credits towards completion of the Machine Tooling Techniques program's requirements would be given to the claimant by NWTC based on that earlier apprenticeship training.

The claimant asserted that she was not aware, when she signed the training contract with the department, that it only provided for 36 weeks of training. She asserts that she did not really read the contract before she signed it, and that the department's TAA coordinator told her that it was "paperwork" that she "had to" sign. The claimant asserts that she thus did not know what she was signing. The commission does not find these assertions credible. The commission is persuaded that the claimant knew that she was signing a contract providing for a term of 36 weeks of training in the Machine Tooling Techniques program at NWTC and that she agreed to this because she, like the department's TAA coordinator, believed based on her understanding of what NWTC had said that this would be sufficient for the claimant to satisfy the requirements of the program.

The claimant completed 20 credits in the fall of 1999 and 14 credits in the spring of 2000. During the course of her training, she applied for, and was granted, an amendment to the training contract which extended it by 10 weeks in order to allow her to complete an additional course. It is thus clear that, to whatever extent she was or was not aware of it before, the claimant was certainly aware by no later than this point that her training contract with the department had initially been limited to 36 weeks of training. The claimant has not contended that she was not aware, in agreeing to the amendment to the training contract, that the amendment was providing for an extension of only 10 weeks, and the commission finds that she was so aware and agreed to such by agreeing to the amendment of the contract.

The claimant's training program ended, pursuant to its terms (as they had been amended), in July, 2001. As of that point, the claimant had not completed all of the credits required to receive the Associate Degree in the Machine Tooling Techniques. The commission infers from the other facts in the record that the reason for this was, that for some reason NWTC did not in fact give the claimant credits based on her earlier apprenticeship training as had apparently been anticipated by those involved.

The claimant's entitlement to weekly "basic TRA" benefits was exhausted with week 33 of 2000 (the week ending August 12, 2000).

In September, 2000, the claimant took a job with Lindquist Machine Company. She worked in that job until April, 2001, when she was laid off. She then contacted the department and requested funding of more training under the Act.

Claimant's request for more training was initially denied by the department, because the claimant's contracted training program had ended in July, 2000, and regulations promulgated under the Trade Act provide that "no individual shall be entitled to more than one training program under a single certification". 20 C.F.R. § 617.22(f)(2). The claimant appealed this initial determination, but following hearing an administrative law judge for the department issued a decision which affirmed the denial.

The claimant sought commission review of that decision. The commission subsequently issued a decision which set aside the administrative law judge's decision and remanded the matter for another hearing and decision. The commission's decision was based solely on a procedural issue and did not address the question of whether claimant was legally entitled to the further training she was seeking. (2)    Following the commission's remand, further hearing was held before another administrative law judge, and on November 4, 2002, she issued a decision in which she concluded that the claimant was entitled to further TAA training benefits beginning in week 49 of 2001, if otherwise qualified.

Because the decision of that administrative law judge held that the claimant was entitled to training benefits under the Trade Act, the department needed to determine whether she would thereby also be entitled to "additional TRA" during weeks in which she might be participating in the training which the administrative law judge had found she was entitled to. Making such a determination required, among other things, a determination of what the applicable eligibility period would be. The department issued a determination on November 18, 2002 which found that "additional TRA" would be payable to the claimant, in the amount of $297/week, subject to two conditions: that she be attending an approved course of training, and that the additional TRA be paid during the eligibility period for such benefits.

The determination held that the applicable eligibility period for claimant for "additional TRA" was August 13, 2000 through February 17, 2001. Of course, that eligibility period had long since ended, so that the effect of the determination was that the claimant would not be able to receive additional TRA during any weeks in which she might be participating in the further training which had been authorized by the November 4, 2002 decision of the administrative law judge.

The claimant appealed the November 18, 2002 determination, and following hearing, ALJ Laura Nick issued a decision on March 13, 2003 which, although modifying the determination as to the dollar amount of the weekly TRA benefit paid and payable to claimant, (3)    affirmed the determination as to the eligibility period. The claimant filed a petition for commission review of that decision, and it is that matter which is now before the commission.

Discussion - The issue in this case is when De Bauche's eligibility period for "additional TRA" began. The legal standards which govern the decision on this issue are contained in regulations promulgated by the Department of Labor under the Trade Act. These regulations provide, at 20 C.F.R. § 617.3(m), as follows:

(m) Eligibility period means the period of consecutive calendar weeks during which basic or additional TRA is payable to an otherwise eligible individual, and for an individual such eligibility period is --
. . .
(2) Additional TRA. With respect to additional weeks of TRA, and any individual determined under this part 617 to be entitled to additional TRA, the consecutive calendar weeks that occur in the 26-week period that --

(i) Immediately follows the last week of entitlement to basic TRA otherwise payable to the individual, or

(ii) Begins with the first week of training approved under this part 617, if such training begins after the last week described in paragraph (m)(2)(i) of this section, or

(iii) Begins with the first week in which such training is approved under this part 617, if such training is so approved after the training has commenced; but approval of training under this part 617 after the training has commenced shall not imply or justify approval of a payment of basic or additional TRA with respect to any week which ended before the week in which such training was approved, nor approval of payment of any costs of training or any costs or expenses associated with such training (such as travel or subsistence) which were incurred prior to the date of the approval of such training under this part 617.

As ALJ Nick stated in her decision, the 26-week eligibility period for additional TRA benefits for De Bauche would, if figured under the first of these choices, run from week 34 of 2000, since De Bauche exhausted her entitlement to basic TRA with week 33 of 2000. The 26-week eligibility period would, in that case, have expired as of the end of week 6 of 2001 (the week ending February 10, 2001).

The eligibility period for additional TRA benefits, when figured under the second of these choices, begins with the first week of approved training, if that training begins after the last week of basic TRA entitlement. That choice is not applicable here, because De Bauche's approved training began in week 34 of 1999, well before her last week of basic TRA entitlement. Therefore, the second choice for determining the eligibility period for additional TRA benefits cannot be used.

Finally, the third choice for determining the eligibility period for additional TRA benefits also cannot be used because it is also not applicable. It applies only to situations in which training is approved after the actual training has started. The training that De Bauche participated in during 1999-2000 was approved before she started the program.

Thus, application of these provisions clearly and unavoidably leads to the conclusion that the eligibility period for additional TRA benefits for De Bauche must be found to have expired as of the end of week 6 of 2001.

In her petition for review, De Bauche does not argue that there is any way to interpret and apply 20 C.F.R. § 617.3(m) so as to arrive at a conclusion that her eligibility period for additional TRA is still open. Instead, she relies on a more general complaint that the outcome is unjust. In her view, the fact that another administrative law judge ruled in her favor on the question of whether she should have been eligible for further TAA training benefits, means that it should also have been found that she was eligible for additional TRA benefits for weeks of such further training. As described by ALJ Nick, to whom she made the same argument, De Bauche is in essence arguing that she "was forced to squander her eligibility period for additional TRA benefits due to a mistake of the TRA coordinator" who, De Bauche evidently feels, steered her into a training program that was not sufficient to allow her to complete the 2-year degree program that she was taking courses in.

The commission is not persuaded by De Bauche's position in this matter, for several reasons. First, and most important, even if the commission agreed with De Bauche's theory regarding the outcome here being unfair in some abstract sense, it would still be bound to apply the law as written. As noted above, the applicable regulations clearly require the result reached. They do not allow extension of the eligibility period, or creation of a new eligibility period, for any reason - certainly not based on a hindsight assessment that a training program, agreed to and completed by a claimant, might originally have been better designed. The commission has no authority to ignore the law and "improvise" a different system.

In any event, though, the commission does not agree that the outcome here is unjust or otherwise inappropriate. The fact that a decision stemming from an issue about the nature of the training program has resulted in a conclusion that the claimant may be entitled to more TAA training benefits, does not necessarily mean that the situation also must involve her being entitled to additional TRA. As was noted above, the way the Act is structured contemplates situations in which a person may be entitled to TRA but not training expenses, and vice-versa.

In addition, the notion that there is something unfair about the result here depends on the view (evidently taken by the other administrative law judge who issued the decision finding that the claimant should be allowed further TAA training benefits) that there was a mistake in the development of the claimant's training program -- but the commission has never subscribed to that view. As noted above, supra at p. 4, when that issue was originally before the commission, it was not reached because the commission found it necessary to set aside and remand for procedural reasons. The decision which subsequently resulted on remand was not appealed to the commission. While that decision has become final by virtue of the fact that no petition for review was filed, this does not require the commission to agree with its rationale or result. Given that the commission would have the authority, should it choose to exercise it, to actually set aside that decision on grounds of mistake, see Wis. Stat. § 108.09(6)(c), the commission certainly has the authority to remain unpersuaded by the reasoning of that decision even though it chooses not to exercise its discretionary set-aside authority. So it is here. Because the commission is not persuaded that De Bauche should have been afforded further TAA training benefits at all, it is not persuaded that there is any unfairness in applying the clear language of the applicable regulations to arrive at the decision that she is not entitled to additional TRA benefits.

The commission therefore finds that the eligibility period for any additional TRA benefits payable to the claimant is the 26-week period from August 13, 2000 through February 10, 2001 (weeks 34 through 53 of 2000 and weeks 1 through 6 of 2001), in accordance with 20 C.F.R. § 617.3(m). The commission further finds that the applicable weekly benefit rate for TRA benefits payable to the claimant for weeks 19 through 33 of 2000 was $305.

DECISION

The decision of the administrative law judge is amended as to the weeks in the claimant's eligibility period for additional TRA, and as amended is affirmed. Accordingly, the claimant's eligibility period for additional TRA benefits is week 34 of 2000 (the week beginning August 13, 2000), through week 6 of 2001 (the week ending February 10, 2001), if she is otherwise qualified.

Dated and mailed September 29, 2003
debauch . trr : 110 : 8

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission has issued its own Findings of Fact and Conclusions of Law in order to be able to set forth more fully its rationale for arriving at essentially the same result as that arrived at by the ALJ.

The commission has differed from the ALJ in terms of result only in regard to a matter of one week at issue. The commission has amended the decision of the ALJ in order to correct an evident error as to the description of the weeks in the claimant's eligibility period for additional TRA. The eligibility period is a period of 26 consecutive weeks. As the ALJ determined, the claimant's eligibility period for additional TRA began with week 34 of 2000, the week beginning August 13, 2000. The 26-week eligibility period beginning with that week ended with week 6 of 2001, not week 7.

The commission would note that in arriving at its findings in this matter it has considered the testimony given at the hearing, and it has also considered the background findings of fact made by the administrative law judge in the proceeding concerning the claimant's entitlement to further TAA training benefits. That decision was received into the record in this matter as Exhibit 1, and De Bauche testified at the hearing in this matter that the findings of the administrative law judge in that matter summarized the testimony she had given in that case and were correct. The commission has also looked to the findings of fact made in its September 6, 2002 decision in this matter, a proceeding in which De Bauche was, of course, a party.

 

Note:  The decision is reproduced here as affected by a subsequent amendment issued to correct a typographical error in the original decision.

 


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Footnotes:

(1)( Back ) Other "allowances", such as job search and relocation allowances, are also available. The term "Trade Adjustment Assistance" (or "TAA") is used cumulatively to refer to all of the benefits offered under the Act, including both the reemployment services (including training), and the allowances (including TRA). See, 20 C.F.R. §§ 617.2, 617.3.

(2)( Back ) Julie V. De Bauche (LIRC, September 6, 2002).

(3)( Back ) This modification was based on the undisputed testimony of the department's witness, that the claimant should have been paid at the rate of $305/week but was only paid at the rate of $297/week for the weeks in which she was paid TRA. He indicated that she is probably due the difference for those weeks and that he could take care of that after the hearing. 

 


uploaded 2003/09/30