MICHAEL J. BERNIER, 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 makes the following:
The claimant, Michael J. Bernier, worked for many years as a machinist for Metso Minerals. In September, 2003, he was informed that he would be permanently laid off in June, 2004. Bernier's job was to end because the work was going overseas.
In December, 2003, a certification was issued by the U. S. Department of Labor ("DOL") providing that employees of Metso Minerals were potentially eligible for benefits under the Trade Act of 1974, a federal law providing a range of benefits to employees of employers adversely affected by foreign competition.
One of the benefits available under the Trade Act is Alternative Trade Adjustment Assistance ("ATAA"). The ATAA program was created by the amendments to the Trade Act made by the Trade Reform Act of 2002. The ATAA program provides that a worker in a group certified by the Secretary of DOL as eligible under the program may be paid certain benefits if the worker meets certain qualifying standards. The law provides:
(B) Individual eligibility. A worker in a group that the Secretary has certified as eligible for the alternative trade adjustment assistance program may elect to receive benefits under the alternative trade adjustment assistance program if the worker --
(i) is covered by a certification under Subchapter A of this chapter;
(ii) obtains reemployment not more than 26 weeks after the date of separation from the adversely affected employment;
(iii) is at least 50 years of age;
(iv) earns not more than $50,000 a year in wages from reemployment;
(v) is employed on a full-time basis as defined by State law in the State in which the worker is employed; and
(vi) does not return to the employment from which the worker was separated.
19 U.S.C. § 2318(a)(3)(B). The amount of the benefit payable is equal to 50 percent of the difference between the wages received by the worker from reemployment and the wages received by the worker at the time of separation.
In February, 2004, a representative of Job Service conducted a meeting at Metso to inform employees there of the various benefit program entitlements they would have in connection with the loss of their jobs, including benefit programs under the Trade Act. The claimant attended this meeting. He was told, with respect to ATAA, that once he got a new job he would be eligible for ATAA. Anticipating his layoff in June, 2004, the claimant had in fact begun looking for another job in December, 2003. The claimant eventually found and was offered a job, at Rexnord, in early April, 2004. Rexnord wanted the claimant to begin working on April 5, but the claimant asked to be allowed to start on April 12, and Rexnord agreed. The claimant started working for Rexnord, full-time on first shift, on April 12, 2004.
The claimant continued working full-time for Metso at this time; Metso allowed him to move to second shift so that he could accept and work the first-shift job at Rexnord. The claimant worked for both Rexnord and Metso during April and May, 2004. His job at Metso then ended with his layoff, as had been anticipated. His last day at Metso was May 23, 2004. He continued working at Rexnord
In August, 2004, the claimant met with a Job Service representative and received information about the ATAA program and his possible entitlement to ATAA benefits. The Job Service representative did not take his application at that time. In March, 2005, (1) the claimant met again with that Job Service representative and completed an application for ATAA benefits.
Subsequently, the department issued a determination rejecting the claimant's application based on the conclusion that he had not satisfied the condition for ATAA eligibility stated in 19 U.S.C. § 2318(a)(3)(B)(ii) and was therefore not eligible for ATAA benefits. The claimant appealed. Following hearing at which testimony was taken from the claimant and the department deputy who issued the determination, an administrative law judge acting as an Appeal Tribunal for the department affirmed that determination. The claimant petitioned for commission review.
The issue for decision is whether the claimant "obtain[ed] reemployment not more than 26 weeks after the date of separation from the adversely affected employment", within the meaning of 19 U.S.C. § 2318(a)(3)(B)(ii). (2)
There is no reported judicial authority from any jurisdiction which interprets the provision of the Trade Act relevant to this case. The U.S. Department of Labor has still not promulgated any regulations relative to the ATAA program. While DOL has issued Training and Employment Guidance Letters which relate to the ATAA program, they do not address the question presented in this case. (3) The only guidance available as to the interpretation of the relevant provisions of the act is the language of the law itself, and consideration of its purpose.
The department deputy who issued the Initial Determination in this case adopted the rationale -- which had been handed down informally by representatives of DOL; see, Note 1, supra at p. 2 -- that the claimant did not satisfy the requirements for ATAA eligibility because the date he began his new employment with Rexnord was before the date of his separation from Metso. The Appeal Tribunal decision also relied on this rationale. Thus, the Appeal Tribunal decision stated that the claimant
... did not obtain reemployment within the meaning of the act, "after the date of separation".
This interpretation thus views the language of the law as creating a window within which the beginning of the worker's reemployment must occur, rather than a deadline by which it must occur.
The commission does not believe that the interpretation followed in the initial determination and the Appeal Tribunal decision is consistent with the language of the law. That interpretation treats the law as if it said something which it does not say. Specifically, the interpretation followed in the initial determination and the Appeal Tribunal decision treats the law as if it stated:
(B) Individual eligibility. A worker...may elect to receive benefits under the alternative trade adjustment assistance program if the worker --
...
(ii) obtains reemployment after, but not more than 26 weeks after, the date of separation from the adversely affected employment
(emphasis added). However, congress did not use such language when it created the ATAA program in the 2002 amendments. As noted above, the law states:
(B) Individual eligibility. A worker...may elect to receive benefits under the alternative trade adjustment assistance program if the worker --
...
(ii) obtains reemployment not more than 26 weeks after the date of separation from the adversely affected employment
(emphasis added). In this case, the claimant plainly satisfied the literal meaning of this provision. He obtained reemployment on April 12, 2004. His date of separation from adversely affected employment was May 23, 2004. April 12, 2004 was not more than 26 weeks after May 23, 2004.
The commission has considered the possible argument that the claimant's employment with Rexnord was not "reemployment" within the meaning of the law because he continued to work at Metso for several weeks after he started that work. The commission believes such an argument would be incorrect. The claimant had been notified and was aware that his employment with Metso would be ending permanently by June, 2004. The entire reason that he was looking for another job, was that he knew he was going to be losing his old job with Metso and needed to find another job to replace it. The work he found and accepted with Rexnord was intended by him to serve as employment he could engage in after his employment with Metso ended, and that is what he did. In every meaningful sense of the word, the work the claimant found and took with Rexnord was precisely "reemployment". (4)
The commission believes that its interpretation is fully consonant with the purposes of the law. As the Appeal Tribunal decision recognized, the ATAA benefit provisions were clearly enacted to provide an inducement for adversely affected workers to find and accept other employment to replace the work they were losing, even if it paid less than the work they lost, so as to decrease the likelihood that such displaced workers would have to draw on other benefit resources to cover weeks of unemployment after their separation. This is precisely what happened here. Because of the claimant's diligence in looking for replacement employment well in advance of the anticipated layoff date, he avoided any period of unemployment. An interpretation such as that adopted by the department and the Appeal Tribunal could lead workers facing loss of their jobs to postpone their efforts to find re-employment, in order to avoid finding such reemployment "too soon" and thus losing their ATAA benefit entitlement. The result would be to increase, rather than decrease, the likelihood that there would be some period of time following the ending of the adversely affected employment, in which the workers would be unemployed and would therefore be forced to draw on other benefit programs. As noted, though, the purpose of the ATAA was specifically to encourage workers to find reemployment in order to avoid just such periods of unemployment.
The commission therefore finds that the claimant obtained reemployment not more than 26 weeks after the date of separation from the adversely affected employment, within the meaning of 19 U.S.C. § 2318(a)(3)(B)(ii). The commission further finds that the claimant met the other requirements of 19 U.S.C. § 2318(a)(3)(B).
The decision of the administrative law judge is reversed. Accordingly, benefits are payable under the Alternative Trade Adjustment Assistance Act if the claimant is otherwise qualified.
Dated and mailed October 5, 2005
bernimi . trr : 110 : 1 TRA
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc: Metso Minerals
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