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

JOHN K. SHEBUSKI, Claimant

TRADE ACT DECISION
Hearing No. 03005605MW


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 over five years as a test technician for a manufacturing company. His last day of work was March 28, 2002. The claimant then received unemployment insurance benefits. After his entitlement to unemployment insurance benefits was exhausted, the claimant was determined to be eligible for benefits under the Trade Act.

Benefits available under the Trade Act include trade readjustment allowances (TRA). There are two kinds of TRA benefits. Initially, eligible claimants may be entitled to receive a certain number of weeks of what is referred to as "basic TRA". In addition, eligible claimants who have exhausted their entitlement to basic TRA may under certain circumstances be entitled to receive a certain number of weeks of what is referred to as "additional TRA".

The claimant initially received basic TRA benefits. It is a condition of eligibility for basic TRA, that claimants either be in approved training under the Act, have completed such training, or have been issued a waiver of the training requirement. The claimant satisfied this requirement during the weeks he was receiving basic TRA by participating in a course of approved training at PC Productivity.

The claimant's participation in training at PC Productivity was financed pursuant to an application for training and a training contract entered into by the claimant and the department, describing the "course of training" and "planned activity" as "MCSE MCSA CIW", with a start date of June 11, 2002 and ending date of May 11, 2003, and allotting a total of $11,000 for tuition, fees, books and supplies. The training involved was computer-related, and the acronyms listed in the description of the course of training referred to various "certifications" (MCSE referred to "Microsoft Certified System Administrator", MCSA referred to "Microsoft Certified System Administrator", and CIW referred to "Certified Internet Webmaster").

The claimant exhausted his entitlement to basic TRA benefits as of week 9 of 2003. As of week 10 of 2003, he began receiving additional TRA benefits. He continued in training at PC Productivity at that time.

The claimant last actually participated in training at PC Productivity in week 26 of 2003 (the week ending June 28, 2003). At that point, the claimant was told by a representative of PC Productivity that they felt he had finished his training and that therefore he could not continue. It appears that the reason PC Productivity told the claimant he could not continue in training was that the full $11,000 allotted to tuition had been paid out and there was no further funding available to pay for the claimant's tuition for continued attendance. However, the claimant had not at that time completed all of the classes he needed for the certifications he was seeking.

The issue for decision is whether the claimant was eligible to continue to receive additional TRA after week 26 of 2003.

Additional TRA differs from basic TRA in that it is a condition of eligibility for additional TRA that claimants actually be participating fully in approved training. Thus, the Trade Act provides, in 19 U.S.C § 2293(3), the section of the Act which provides for additional TRA:

(3) Notwithstanding paragraph (1), in order to assist the adversely affected worker to complete training approved for him under section 236 [19 USCS § 2296], and in accordance with regulations prescribed by the Secretary, payments may be made as trade readjustment allowances for up to 52 additional weeks in the 52-week period that-

(A) follows the last week of entitlement to trade readjustment allowances otherwise payable under this chapter [19 USCS § 2271 et seq.]; or

(B) begins with the first week of such training, if such training begins after the last week described in subparagraph (A).

Payments for such additional weeks may be made only for weeks in such 52-week period during which the individual is participating in such training.

(emphasis added). In addition, the rules of the U. S. Department of Labor interpreting the provisions of the Trade Act provide, at 20 CFR § 617.15:

§ 617.15 Duration of TRA.
. . .
(b) Additional weeks. (1) To assist an individual to complete training approved under subpart C of this part, payments may be made as TRA for up to 26 additional weeks in the 26-week eligibility period (as defined in § 617.3(m)(2)) which is applicable to the individual as determined under § § 617.3(m)(2) and 617.67(f)

. . . .
(3) Except as provided in paragraph (d) of this section [referring to scheduled breaks in training], payments of TRA for additional weeks may be made only for those weeks in the 26-week eligibility period during which the individual is actually participating fully in training approved under § 617.22(a).

(emphasis added). There is only one exception to this "actual participation" requirement, which is that a claimant will be treated as participating in training during scheduled breaks in the training that do not exceed 30 days. See, 19 U.S.C. § 2293(f), 20 C.F.R. § 617.15(d). No other exceptions are provided for.

The claimant clearly believes that he should have been allowed to continue to participate in training at PC Productivity after week 26 of 2003. Whether or not that is considered in some sense to be the case, and whether it is considered that either PC Productivity or the department or both could or should have done something that would have allowed the claimant's training to continue, is beside the point in view of the clear provisions of the applicable federal statutes and rules. The claimant was not in training after week 26 of 2003, and he was not in a scheduled break in training. Therefore he was not eligible for additional TRA.

The commission therefore finds that as of week 27 of 2003, the claimant was not participating in approved training within the meaning of 19 U.S.C § 2293(3), and that he was therefore not eligible for payments of additional TRA for such weeks.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, no trade readjustment allowances are payable as of week 27 of 2003.

Dated and mailed February 9, 2004
shebujo . trr : 110 : 1   TRA

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

At hearing the claimant argued that he could be found eligible on the authority of 19 U.S.C. § 2291(b), which provides in relevant part that if an adversely affected worker has ceased to participate in a training program before completing it and there is no justifiable cause for such failure or cessation, no trade readjustment allowance may be paid to the adversely affected worker. The claimant's theory was apparently that, since this provision states that a claimant who fails to participate in training without justifiable cause cannot receive trade readjustment allowances, it follows that a claimant who fails to participate in training with justifiable cause can receive trade readjustment allowances. The claimant argued that he had "justifiable cause" for ceasing to be involved in the training at PC Productivity, since he had left the training involuntarily.

This argument is not persuasive. To understand why this is so, it is important to bear in mind the difference between basic TRA and additional TRA. As mentioned above, additional TRA may only be paid for weeks in which a worker is actually participating in training. 19 U.S.C § 2293(3). However, there are a number of circumstances under which basic TRA may be paid to workers who are not in training. For example, it may be paid to workers for whom the training requirement has been waived, and it may be paid to workers who are no longer in training because they have taken and completed a training program. See, 19 U.S.C. § 2291(a)(5). The commission believes that the "justifiable cause" standard in 19 U.S.C. § 2291(b), is intended to deal with issues that arise when a worker who is complying with the training provisions for basic TRA by actually participating in training, fails to participate in or drops out of a training program.

More important, the claimant's argument is unpersuasive because it relies on indirect reasoning, against which must be weighed the fact that it is expressly stated in 19 U.S.C. § 2993, that payments of additional TRA may only be made for weeks during which the individual is participating in training. This is pointedly emphasized in the Department of Labor's interpretive rule, 20 CFR § 617.15, which states that additional TRA may be paid only for weeks in which the claimant is "actually participating fully" in training. Significantly, there is no mention in 19 U.S.C. § 2993, or in 20 CFR § 617.15, of any exception for situations in which there is "justifiable cause" for not being in training. It seems to the commission that, if it had been intended that the "justifiable cause" provision in 19 U.S.C. § 2291 would apply so as to make it possible for additional TRA to be paid for weeks in which a worker was not in training, that would have been noted by way of a phrase such as ".except as provided in § 2291(b)." or something to that effect in 19 U.S.C. § 2993 and in the relevant interpretive rule.

This is simply a reflection of the different purposes of basic and additional TRA. Additional TRA is very specifically and narrowly focussed on allowing claimants to finish training programs already begun and only partially completed during the weeks covered by basic TRA. Its purpose is thus completely connected to the claimant actually being in the training.

 

NOTE: At the hearing in this matter, the administrative law judge marked three documents for identification. A degree of uncertainty exists about the contents of the record because, after having marked these documents, the ALJ never expressly stated on the record whether or not he was receiving them into the record as exhibits.

When a petition for commission review is filed from a decision of an administrative law judge, the commission has the statutory responsibility to make a decision in the case "on the basis of the evidence previously submitted". Wis. Stat. § 108.09(6)(d). The commission cannot carry out that statutory responsibility unless it can determine what evidence has been submitted. It is therefore necessary for the commission to know what documents have (or have not) been received into the evidentiary record. It should not have to resort to inferences or presumptions about this.

Under the particular circumstances here, the commission believes it is reasonable to conclude that the admission into the record of the documents which were marked as exhibits would not have been opposed by any party at hearing, that their admission would have been appropriate, and that this may indeed have been intended by the ALJ even though he did not express this on the record. The commission will therefore treat the exhibits as being part of the record.

It should be noted, however, that in other cases and under other circumstances it might not be appropriate for the commission to take such a step. In such other cases, the failure of an ALJ to affirmatively state on the record whether documents that had been marked as exhibits were or were not received may require a remand to the ALJ for further proceedings.

The commission had no disagreement with the material findings of fact made by the administrative law judge. It has issued its own decision in this matter in order to be able to set forth more fully the reasons it has arrived at the same result as the administrative law judge.

cc: 
Attorney Karen W. Moore
Tower Automotive, Milwaukee WI 53216-2659


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