LESLIE L LUEDTKE, Claimant

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.

The decision of the administrative law judge is affirmed. Accordingly, the claimant is ineligible for TRA as of week 36 of 2000.

Dated and mailed July 30, 2004
luedtle . tsd : 110 : 2  TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The 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, Dec. 13, 2000), Peggy Dallas (LIRC, Sep. 10, 2001).

In her petition for commission review the claimant asserts that she was separated from employment with Mirro due to lack of work. However, the evidence introduced at the hearing made it very clear that the reason Mirro decided to terminate the claimant was its dissatisfaction with her attendance.

While it is true that a decision was issued in regard to the claimant's UI benefit claim concluding that this discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5), that does not change the fact that the reason for the termination was Mirro's dissatisfaction with the claimant's attendance. See, Jesse Salinas (LIRC, Sep. 2, 1987) (while conduct for which the claimant was discharged did not constitute misconduct, still that was in fact the reason for his separation, and therefore claimant's separation was not "because of lack of work" for Trade Act purposes).

The situation here is similar to that in Kathleen Halwas (LIRC, May 20, 2003), a case in which the claimant was found ineligible for TRA benefits because the employer had terminated her due to dissatisfaction with her performance and not because of lack of work. In its decision, the commission wrote:

The claimant disagreed with what she was told as to the reason [the employer] had decided to discharge her, and she believed that the discharge was not justified. However, the issue is not whether the [employer's] dissatisfaction with the claimant's performance was objectively justified, but is instead simply what [the employer'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 [the employer] was dissatisfied with her performance.

The same observations are applicable to this case. The claimant was informed by Mirro on August 28, 2000, that she was being discharged because she had too many "occurrences" under its Attendance Policy. (See, Ex. 2). In addition, a representative of Mirro testified at the hearing in this matter that the claimant was terminated because of her attendance. As stated above, it was very clear from the record in this case that the claimant was discharged because of her employer's dissatisfaction with her attendance. Thus, she was not separated from employment because of lack of work.

In her petition for review, the claimant also objects that there was an error in the Appeal Tribunal Decision in that it reflected that she had appeared at the hearing "in person" when in fact she had appeared by telephone. The commission sees no reason to believe that this error in describing the circumstances of the hearing had any impact on the Appeal Tribunal's decision on the merits of the case.

The claimant also argues in her decision that her employer had "deceiving intentions" and knowingly terminated her so that she would not be entitled to any severance benefits but would be entitled to UI, which was proven when she was found eligible for UI. It is not clear what the point of this argument is, but the commission would note that it sees no evidence in the record that the claimant's employer was being deceptive about its reasons for discharging her. Those reasons, as noted above, were dissatisfaction with the claimant's attendance.

For the foregoing reasons, the commission has concluded that the decision of the Appeal Tribunal was correct.

cc:
Mirro Co., Attn: Dan Todryk
Calphalon Corp., Attn: Nicole Leiter

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uploaded 2004/08/09