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

YVONNE M MIRTAVOOSI, Claimant

TRADE ACT DECISION
Hearing No. 05604448MW


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 not eligible for Trade Adjustment Assistance under Petition TA-W-51,912.

Dated and mailed October 6, 2005
mirtayv . tsd : 110 : 2  TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The claimant worked for Tecumseh Products, a company which had been certified under the Trade Act as adversely affected by foreign competition. There were a number of layoffs which were related to the Tecumseh's economic condition. However, these layoffs did not affect the claimant's job. Her employment would have continued past the point of her last day of work on January 31, 2005. The claimant's employment ended as of that day, because she quit her job. She quit because she was dissatisfied with what she considered to be discrimination by the employer regarding her pay.

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, it is not sufficient merely to have been an employee of an employer certified to have been adversely affected by foreign competition; for a claimant to be eligible for TRA benefits, that claimant must have been separated from their employment with that employer because of lack of work. See, Frank Fore (LIRC, December 13, 2000). As the commission stated in Frank Fore,

The relevant definition in the Trade Act is clear and unambiguous. It represents a judgment by the U.S. Congress that applying a particular rule -- i.e., that TRA benefits will only be paid to workers who are separated from their employment with the adversely affected employer because of lack of work -- will achieve the overall purpose behind the Trade Act.

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 simply not eligible for TRA benefits. It does not matter if the reason for the separation is one that does not involve fault or misconduct on the employee's part; see, e.g., Jesse Salinas (LIRC, September 2, 1987); Robert Fling (LIRC, April 5, 2002); Kathleen Halwas (LIRC, May 20, 2003); Leslie Luedtke (LIRC, July 30, 2004). It also does not matter if the employee voluntarily terminates their own employment for what is arguably a good reason -- even a reason that constitutes "good cause" for voluntary termination under state unemployment insurance law, or a reason that would support a finding of discriminatory constructive discharge.

The result is different under the Trade Act than it might be under other laws, because the provisions of the laws are different. This reflects a different intent behind the laws. The Trade Act is intended to serve a very specific, and narrow, purpose, which is to help employees who are laid off because of lack of work caused by foreign competition. It is not intended to address or solve the problem of invidious discrimination, or to provide the kind of general buffer against the societal effects of unemployment that is the focus of unemployment insurance laws. The claimant has, she indicates, received unemployment insurance benefits, apparently based on a determination that a discrepancy in her pay gave her good cause to quit under the applicable unemployment insurance law. Her remedy for alleged discrimination in employment, is to pursue a claim under applicable anti-discrimination laws, and she is pursuing such a claim. The commission can only presume, that these laws are operating and will continue to operate in the manner in which they are intended, with regard to the claimant's situation. With respect to the Trade Act issue, however, the way in which that law operates is to require the conclusion that the claimant is not eligible because she was not separated from employment "because of lack of work".

cc: Tecumseh Products Company, Grafton, WI



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