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

EILEEN M MLEZIVA, Claimant

TRADE ACT DECISION
Hearing No. 04402045AP


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the claimant is ineligible for trade benefits based on her work for Anchor Hocking Corporation, Mirro Corporation Division.

Dated and mailed May 5, 2005
mleziei . tsd : 110 :  TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The claimant worked for Mirro. Her last day of work was July 19, 2001. She stopped working at that point because she had been injured on the job. A week later, on July 26, 2001, Mirro terminated her. She never worked for Mirro again.

Mirro was determined in 2003 to be an affected employer under the Trade Act. The claimant sought benefits under the Trade Act at that time. However, the "impact period" established by the certification affecting Mirro was limited to the period beginning February 7, 2002, well after the claimant's last day of work for and termination by Mirro. Thus, the claimant was found not to be eligible because she did not become separated from Mirro during the impact period.

The claimant believes that, since she had been an employee of Mirro since 1963, she should have been entitled to benefits under the Trade Act like the other employees who lost their jobs there when Mirro announced, in 2003, that it was closing its doors and going to Mexico. The claimant argues that she should be entitled to benefits under the Trade Act because in 2003 she received a monetary settlement from Mirro based on a grievance which had been filed on her behalf objecting to her termination in 2001.

The commission agrees with the administrative law judge, that the provisions of the Trade Act do not allow a finding of eligibility in this case.

The Trade Act provides, at 19 U.S.C. § 2291:

§ 2291. QUALIFYING REQUIREMENTS FOR WORKERS

(a) Trade readjustment allowance conditions. Payment of a trade readjustment allowance shall be made to an adversely affected worker covered by a certification under subchapter A who files an application for such allowance for any week of unemployment which begins more than 60 days after the date on which the petition that resulted in such certification was filed under section 221, if the following conditions are met:

(1) Such worker's total or partial separation before his application under this chapter occurred--

(A) on or after the date, as specified in the certification under hich he is covered, on which total or partial separation began or threatened to begin in the adversely affected employment,
. . .

(2) Such worker had, in the 52-week period ending with the week in which such total or partial separation occurred, at least 26 weeks of employment at wages of $ 30 or more a week in adversely affected employment with a single firm or subdivision of a firm, or, if data with respect to weeks of employment with a firm are not available, equivalent amounts of employment computed under regulations prescribed by the Secretary. For the purposes of this paragraph, any week in which such worker--

(A) is on employer-authorized leave for purposes of vacation, sickness, injury, maternity, or inactive duty or active duty military service for training,
(B) does not work because of a disability that is compensable under a workmen's compensation law or plan of a State or the United States,
. . .

shall be treated as a week of employment at wages of $ 30 or more, but not more than 7 weeks, in case of weeks described in subparagraph (A) or (C), or both (and not more than 26 weeks, in the case of weeks described in subparagraph (B) or (D)), may be treated as weeks of employment under this sentence.

Because the claimant last actually worked for Mirro, and was terminated by Mirro, in July, 2001, she did not and can not satisfy the requirement of 19 U.S.C. § 2291(a)(1) that her separation occur on or after the impact date established in the certification.

Even if the commission were to adopt the very strained interpretation, that the claimant was somehow separated from employment with Mirro in 2003, by virtue of the settlement agreement and payments that occurred at that time, she would still not be eligible. Under 19 U.S.C. U.S.C. § 2291(a)(2), a claimant must also have had at least 26 "weeks of employment" in the 52 weeks prior to the week of their qualifying separation. The claimant here, of course, did not work at all for Mirro after July 19, 2001.

While the Trade Act does in some circumstances allow weeks to be counted as "weeks of employment" for purposes of § 2291(a)(2) even when no actual work was performed, these circumstances are limited, and they do not apply to this claimant. Thus, there is no basis in the record for finding that the claimant was on "employer-authorized leave", for any purpose, in the weeks preceding her receipt of the settlement money in 2003. More important, only 7 such weeks may be counted as "weeks of employment" for purposes of meeting the requirement for 26 weeks of adversely affected employment. Therefore, even if the claimant is considered to have been on "employer-authorized leave" prior to a "separation" in 2003, she could not meet the 26-week requirement. Furthermore, the record does not support -- and in fact directly contradicts -- any conclusion that there were weeks in 2003 or 2002 in which the claimant "[did] not work because of a disability that is compensable under a workmen's compensation law". While the claimant did have an on-the-job injury in 2001, she was according to her own testimony prevented from working by it for only 4 weeks, and she was then physically able to return to work. There is simply no way that it could be found that in the weeks preceding her receipt of the settlement money in 2003, the claimant was not working "because of" a disability compensable under a workers compensation law. While the claimant had experienced a very short period during 2001 when she was unable to work because of such a disability, the reason that she was not working after that point was "because of" the fact that Mirro discharged her.

The commission understands that the claimant feels strongly, that it is unjust that her termination by Mirro in 2001 has led to a situation where she does not qualify for certain benefits that she probably would qualify for if her employment at Mirro had continued and she had then been terminated by Mirro because of lack of work in 2003. However, the Trade Act simply does not contain any provisions allowing payment of benefits to a person in the claimant's situation. Notwithstanding the circumstances which led to her situation, the claimant was in fact not separated from employment with Mirro because of lack of work during the impact period established by the relevant certification, and she did not in any event have sufficient weeks of employment with Mirro preceding the week in which she would like to be considered to have been separated, and therefore she cannot be determined to be eligible for benefits.

cc: Calphalon

 

[Ed. Note: This decision is reproduced as modified by a corrective amendment issued on May 10, 2005 to correct a typographical error] 
    


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