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

CARYLE L SWANSON, Claimant

TRADE ACT DECISION
Hearing No. 04200226EC


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.

Pursuant to a June 14, 2004 Order by the commission, further hearing was held before an administrative law judge, acting on behalf of the commission, to supplement the record.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted in the original and supplemental hearings. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant worked for Tecumseh Products, a gasoline engine manufacturer, at its New Holstein, Wisconsin plant, which was the subject of a certification by the Department of Labor under the Trade Act of 1974, as amended. The claimant was group leader in the packing department, where engines are packed to be shipped out after the final parts are put on. In 2002, a decision was made to close the final assembly and packing operation at the New Holstein plant and to move that operation to a Tecumseh Products plant in Dunlap, Tennessee. The New Holstein plant shut down around the last week of July or the first week of August, 2002. At that time, the claimant took several weeks of accrued vacation. The claimant returned to work at the end of August and worked for a few days "putting up" the department, which included marking and labeling items that were to be shipped to Tecumseh's plant in Dunlap where the final assembly operation was being moved. She last actually worked for Tecumseh there on August 30 or 31.

While the claimant's particular job as group leader in the packing department had been eliminated, the claimant had the opportunity to continue her employment with Tecumseh at the New Holstein plant after August 31, by exercising her right to bump into a position in engine assembly there. The claimant had seniority, which would have allowed her to bump into positions in basic engine assembly and sub-assembly.

The claimant also was offered an opportunity to go down to the Dunlap, Tennessee plant and do some work there in the packing operation to be set up there. The claimant would not be able to take advantage of that opportunity, however, if she remained on the payroll at the New Holstein plant, because Tecumseh did not allow employees to be on payrolls at more than one plant at a time. Had the claimant simply elected to allow herself to go onto layoff status at the New Holstein plant, by choosing not to exercise her right to bump into an engine assembly position there, she would have still been considered to be on the payroll of the New Holstein plant because of her layoff status and continuing rights associated with that. To be off the payroll at the New Holstein plant, it would be necessary for the claimant to retire from her employment there.

The claimant chose not to take the opportunity to do the other work available to her at the New Holstein plant. Instead, she formally retired from Tecumseh Products effective the end of August, 2002. Thereafter, she went down to Tecumseh's Tennessee plant and did some work there, starting on September 11, 2002. That work then ended in November, 2002.

Benefits under the Trade Act may only be paid to an "adversely affected worker". 19 U.S.C. § 2319(2) states that for purposes of the Trade Act,

The term "adversely affected worker" means an individual who, because of lack of work in adversely affected employment

(A) has been totally or partially separated from such employment, or

(B) has been totally separated from employment with the firm in a subdivision of which such adversely affected employment exists.

(emphasis added). Thus, for a claimant to be eligible for TRA benefits they must have been separated from work because of lack of work. See, Frank C. Fore (LIRC, December 13, 2000) (voluntary separation before and in anticipation of business closing is not "because of" lack of work).

The issue for decision here is whether the claimant was separated from employment "because of lack of work". The Appeal Tribunal concluded that she was not. The commission agrees. The claimant simply cannot be found to have stopped working at the New Holstein plant "because of lack of work", since the evidence shows that there was work available to her there. As is described above, while the particular job the claimant had been working in (group leader in the packing department) had ended, there were other jobs at New Holstein which were available to her and which she could have done.

The claimant contended that she did not believe she would have been able to handle those jobs physically because their physical demands were too much. However, she did not make any inquiries about any accommodations the employer might have been able to make to help her. The employee had performed the jobs previously. The New Holstein plant's Human Resources Supervisor opined that from what she knew of the claimant's situation the jobs available to her were ones she could have performed. The commission credits this testimony.

This case is similar to Nancy L. Repka (LIRC, December 23, 2002). In that case, the particular job the claimant had been working in (purchasing clerk) was eliminated. However, the claimant was offered the opportunity to move to other work with the employer, in a telephone order clerk position; in the alternative, she had the right to take a layoff, which would bring certain severance benefits. The claimant elected to take the layoff. In a decision concerning her claim for benefits under the Trade Act, the claimant was found to be ineligible, because her separation had not been "because of lack of work" since there was work available for her to do. The commission said:

While the claimant's Purchasing Clerk position was eliminated because of lack of work, the claimant's employment with her employer did not end because of lack of work. She had an opportunity to continue to be employed with the employer, in a telephone order clerk position. She chose not to take that opportunity. For this reason, it cannot be found that she was separated from employment because of lack of work.

This commission concludes that the same analysis applies here. As noted above, the claimant's packaging department job was eliminated because of lack of work, but the claimant's employment with the employer did not end because of lack of work, since she had the opportunity to continue to be employed with the employer, in the other position(s) in the plant that were testified about. Like Repka, the claimant here chose not to take that opportunity.

It is true, that there were jobs lost at the New Holstein plant, that many employees there were indeed laid off because of lack of work, and that had the claimant taken the opportunity to bump a less senior employee out of a position in engine assembly or sub-assembly that less senior employee might well have lost their employment because of lack of work. However, the question which must be answered in a case such as this, is whether the claimant lost his or her employment because of an "individual lack of work" as to the particular claimant. See, for example, Robertson v. Ohio Bureau of Employment Services, 76 Ohio App. 3d 729, 603 N.E.2d 334 (1991). The plaintiff in Robertson terminated his employment by participating in a buy-out program offered by GM in preparation for the closing of a plant. He was denied TRA benefits on grounds that he was not separated because of a lack of work. On appeal, the Ohio Court of Appeals held that a claimant must establish that he was involuntarily terminated because of an "individual lack of work " in order to qualify as an "adversely affected worker" eligible to receive TRA. The court reasoned that the Trade Act was enacted by Congress to provide assistance to workers who were involuntarily displaced from their jobs by increased foreign trade competition and that TRAs were therefore only intended to apply where the claimant was involuntarily terminated due to a lack of work for that particular individual. The court also reasoned that TRA benefits were not intended to benefit those workers who voluntarily choose to terminate their employment in order to participate in company-wide downsizing programs designed to reduce the size of the work force because of a general lack of work within the firm or business. See also, Mosqueda v. Comm. of Pennsylvania, Unemployment Comp. Bd. of Rev., 60 Pa. Commw. 242, 431 A.2d 371 (1981) (claimant's position was eliminated, and he had, but elected not to take, opportunity to continue in employment by accepting another position; separation not "because of lack of work" for Trade Act purposes).

In a recent decision, the Minnesota Court of Appeals applied this principle in the case of an employee whose particular position in customer service was eliminated and who chose to resign instead of accepting another position with the employer which was available to him. Sinykin v. Commissioner of Economic Security, 594 N.W.2d 227, 1999 Minn. App. LEXIS 588 (Ct. App. Minnesota, 1999). Looking to the Robertson and Mosqueda decisions, the court said

[W]e conclude, as did the commissioner's representative, that Sinykin does not qualify for TRA benefits. To qualify for TRA benefits, it is not enough for Sinykin to have left employment for good reason caused by his employer; he must be "separated" from his employment because of a lack of work. Separation is defined by the Act as "the layoff or severance of an individual from employment." 19 U.S.C. § 2319(11). Although it is undisputed that Sinykin's position in customer service was eliminated, he was not actually laid off. His name did not appear on NordicTrack's list of laid-off employees. Rather, he chose to resign because he did not want to accept another position within the company.

Additionally, there is no requirement in the federal statute that the available work must be comparable to the employee's prior position. It simply states there must be a "lack of work." In the present case, there was work available for Sinykin in the customer service department. Like the employee in Mosqueda, Sinykin chose not to accept the option of continued employment. Accordingly, we conclude the evidence in the record is sufficient to sustain the commissioner's determination that Sinykin was not separated from his employment because of a lack of work.

594 N.W.2d 232-33. These observations are applicable to the situation in this case.

The commission therefore finds that the claimant was not an adversely affected worker within the meaning of the Trade Act of 1974, as amended.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the claimant is not eligible for Trade Adjustment Assistance under petition TA-W-50141.

Dated and mailed August 24, 2004
swansca . trr : 110 :  TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission had no disagreement with the material findings of fact made by the administrative law judge who issued the Appeal Tribunal decision in this matter. It has made its own Findings of Fact to more fully state the basis for its decision, as well as to reflect the additional factual background which came out at the supplemental hearing ordered by the commission to further develop the record.

cc: Tecumseh Products Co.


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