RUTH A TICKLER, 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 majority 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 not eligible for Trade Readjustment Allowances.

Dated and mailed August 17, 2005
ticklru . tsd : 110 : 1  TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

The claimant's employer decided to move the manufacture of one of its products to Canada. In order to reduce some of its staff and prevent having to do layoffs, it offered its employees voluntary early retirement/separation packages, which were a financial incentive for employees to quit their employment in order to obtain additional benefits beyond those they might be entitled to if it turned out that they needed to be laid off at some point. The claimant accepted a voluntary early retirement/separation package, and thereby voluntarily ended her own employment.

The claimant acknowledged in her testimony, that at the time she accepted the buy out there was no definite decision that she would be laid off. She also testified that it was possible that she could have still been working for the employer. She explained that if the employer had to do layoffs it would have probably started with the least senior person, and that there were other people below her in seniority.

The administrative law judge concluded that the claimant was not eligible for Trade Readjustment Allowances because she was not separated from employment with her employer because of lack of work, within the meaning of the Trade Act. This was the correct conclusion to be drawn from these facts. 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". If an employee who could continue to be employed by an employer nevertheless voluntarily elects to end their employment, the "because of lack of work" standard of the Trade Act may not be met, even in situations in which there is a potential or impending staff reduction or plant closing which the employee's voluntary separation is related to.

The commission has followed this interpretation in the past. In Frank C. Fore (LIRC, December 13, 2000), the commission confronted a situation in which an employer had announced that it planned to shut down its operation altogether in the near future. Upon learning of this, the claimant in that case had taken the initiative to seek out other work to replace the job which the employer's announcement had made clear was going to be ending. When he found other work, he left his job to take it. Unfortunately, he was then laid off from that new job within just a few weeks. His former employer did indeed close, four months after the claimant had left his job there. Obviously, at that point, all persons who were still employed there lost their jobs because of lack of work. However, the commission held, because claimant Fore had left his job there at a point when he could have continued working, his leaving was not "because of lack of work" within the meaning of the Trade Act.

In Nancy L. Repka (LIRC, December 23, 2002), 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.

In Caryle L. Swanson (LIRC, August 24, 2004), the commission confronted a situation in which an employer had announced that it was going to close its final assembly and packing operation in its plant at New Holstein, Wisconsin, and move that operation to a plant in Tennessee. The claimant, Swanson, had two opportunities available to her. She was told that she could go to the plant in Tennessee to take a job in the final assembly and packing operation there; to do this, she would have to resign her employment with her employer and start as a new employee in Tennessee, because the employer did not allow employees to be carried on the payroll as employees of more than one plant at the same time. Alternatively, she had the opportunity to continue her employment with Tecumseh at the New Holstein plant after the final assembly and packing operation there closed, by exercising her right to bump into a position in the engine assembly operation, which was continuing in New Holstein. She chose to voluntarily resign as an employee and to go and begin working in Tennessee. The commission concluded that her separation from employment had not been "because of lack of work", because she had had the option to continue to be employed by the employer at the New Holstein plant by exercising the bumping option available to her there.

Explaining its decision in Swanson, the commission stated:

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.

Caryle L. Swanson (LIRC, August 24, 2004). Those same observations are equally applicable here. Consistent with the Robertson, Mosqueda and Sinykin decisions, and with its own decisions in Fore, Repka and Swanson, the commission sees this as a case in which the particular employee's separation simply cannot be said to have been "because of lack of work" within the meaning of the Trade Act because the employee was not facing an "individual lack of work" and could have continued to be employed by the employer.

The claimant's petition for commission review states that she feels that she should have the same benefits as others in her group. However, as the administrative law judge noted, in deciding a case on appeal from a department determination the applicable law must be applied to the specific facts of that case. The outcome cannot be determined by the fact that there may have been different situations and outcomes in other cases. Based on the specific facts of this case, it is clear that the claimant was not separated from employment with her employer because of lack of work, within the meaning of the Trade Act, and therefore the commission is required to affirm the result reached by the administrative law judge.

ROBERT GLASER, Commissioner (dissenting):

I respectfully dissent from the majority decision affirming the Appeal Tribunal Decision finding that Tickler voluntarily left her employment and was not an adversely affected employee. The majority states that the claimant acknowledged in her testimony that at the time she accepted the buy out that there was no definite decision that she would be laid off. While that is stated in the synopsis in listening to the tape of the hearing the claimant also stated that the employer stated clearly that if there were not enough buy outs there would be lay offs, as such I do find that such separation is voluntary. She also stated that if she had not been told that she would not lose eligibility for Trade Act benefits she would have never taken severance benefits.

I also disagree that the majority reading of 19 U.S.C. § 2319(2) requires a finding that the claimant is not an adversely affected employee. Wisconsin case law requires a liberal construction of the law. Similarly the purpose of the Trade Act is to assist workers adversely affected by foreign competition in returning to suitable employment. 20 C.F.R. § 617.2 (1998). Because the purpose is remedial, "the Act's eligibility provisions must be liberally construed." Embaby v. Department of Jobs and Training, 397 N.W.2d 609, 611 (Minn. App 1986). While Congress has passed other trade legislation since that time the intent has been to assist workers and others to adjust to changes in international trade flow. There is nothing to prohibit a liberal construction of the laws. The claimant clearly testifies that the Bounce Department was transferred to Canada and the company was overstaffed by 150 people. The company was certified under the Act.

The Majority cites Frank C. Fore (LIRC, December 13, 2000). However Fore quit to take another job and was then laid off from that job. That is also true in LIRC's decision in Caryle L. Swanson (LIRC, August 24, 2004). Swanson retired from the certified plant to take a position with the employer's Tennessee plant and was laid off from that unit which was not certified. In the Swanson case LIRC cited Mosqueda v. Comm. of Pennsylvania, Unemployment Comp. Bd. of Rev., 60 Pa. Commw. 242, 431 A.2d 371 (1981). That is also a different fact situation in that Mosqueda had the opportunity to continue in a welding apprentice program and declined because he could net more money on lay off. That was clearly an economic decision which was the opposite in this case.

Robertson v. Ohio Bureau of Employment Services, 76 Ohio App. 3d 729, 603 N.E.2d 334 (1991), is also cited by the Majority but the Court in that case stated benefits are not intended when the work force is reduced because of a general lack of work. In the present case it was not a general lack of work situation but a plant closure because work was transferred to Canada.

I believe that this case is similar to Wailuku Sugar Co. et al. v. Director, Dept. Of Labor and Industrial Relations, 65 Haw. 146, 648 P.2d 1107 (1982), where the employer urged people to take early retirement and the Supreme Court of Hawaii found that employees were eligible. I also feel that Former Employees of Hewlett-Packard Co. v. U.S., 17 C.I.T. 31 (US Court of International Trade, 1993), is relevant even though it had to do with defining a lack of work under 19 U.S.C. § 2272(a)(1). While it is a different section of the Act it gives us direction as to the Congressional intent of the Act, i.e. granting benefits and training to individuals whose jobs are lost due trade legislation.

Based on the above I would find that Tickler did not voluntarily leave and is an adversely affected and employee and eligible for benefits.

__________________________________________
/s/ Robert Glaser, Commissioner

cc: Proctor & Gamble Paper Products Co.

Appealed to Circuit Court. Affirmed April 4, 2006.    [Summary of Circuit Court decision]

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