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

JOE DOMACINOVICH, Claimant

TRADE ACT DECISION
Hearing No. 05606836MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant worked for Metso Minerals Industries ("Metso"). On December 10, 2003, Metso was certified under the Trade Act as adversely affected by foreign competition (Petition TA-W-53694), with an impact date of November 25, 2002, and an expiration date of December 10, 2005. This certification established that workers separated from employment with Metso during the relevant impact period were eligible to apply for benefits under the Trade Act.

Most of Metso's employees were laid off when that plant closed in June, 2004, but the claimant's employment continued at that point because he had been asked to stay on for a few months to help with moving equipment. Although he was kept on after the plant closed, he was aware that his employment there would soon end. He began looking for replacement employment. He found and started another job in July, 2004, with an employer named Falk. Although the claimant began working at Falk in July, 2004, he also continued to work full-time in his old position at Metso, and he continued working in that position until it ended on October 1, 2004. At that time he continued working in his job at Falk, and he has continued working in that job up to the present. The claimant's job at Falk pays less than his old job at Metso.

Under the Trade Act, the main benefit program is the Trade Adjustment Assistance (TAA) program. Benefits available under that program include job search and relocation allowances, payment of costs and expenses of training, and weekly income support payments, referred to as Trade Readjustment Allowances ("TRA").

In addition, however, amendments to the Trade Act in 2002 created a second benefit program under the Act, the Alternative Trade Adjustment Assistance (ATAA) program. The ATAA program provides a benefit to adversely affected workers aged 50 or over who find reemployment that pays less than their adversely affected employment. The benefit is a cash payment equal to 50% of difference between the wages of the jobs.  (1)

Although TAA and ATAA are both part of the Trade Act, and although there are connections between them with respect to procedures for certification of employers  (2), with respect to benefits and benefit eligibility standards they are effectively separate and distinct programs. The payments which are available under the ATAA program are not "TRA" payments. Indeed, a worker receiving benefits under the ATAA program is not eligible to receive any other benefits under the Trade Act (except for the Health Care Tax Credit), see, 19 U.S.C. § 2318(a)(5); thus, a worker receiving ATAA benefits is for that reason ineligible for TRA payments. In any event, as a practical matter a worker eligible for ATAA could not be eligible for TRA under the eligibility standards for that program, since one of the eligibility requirements for ATAA benefits is that the worker be employed full-time, and a worker who is employed full-time would not be eligible for TRA since that benefit is only available for "week[s] of unemployment". 19 U.S.C. § 2291(a).

ATAA is accurately described as an "alternative" program to TAA. Workers of employers certified with respect to both TAA and ATAA are by statute given the opportunity to "elect" to receive benefits under the ATAA program if they meet the qualifying requirements. 19 U.S.C. § 2318(a)(3)(B).

The claimant contacted the department some time after the end of his employment at Metso, concerning his potential entitlement to benefits under the Trade Act. This occurred at some time on or before August 16, 2005. The claimant had contact at this time with a representative of the department in its Division of Workforce Solutions, which has responsibility for certain employment and training services including those under the Trade Act.

The claimant had been told about the potential availability of both TAA program benefits and ATAA program benefits in the course of meetings held by representatives of the department at Metso in connection with its closing. He recognized that given his situation (over age 50, working full-time in a job paying less than his old adversely-affected employment) he might be eligible for ATAA program benefits. The claimant wanted the ATAA benefit to supplement his earnings at Falk.

However, when the claimant contacted the department, the department representative with whom he dealt used application materials for TAA program benefits. The TAA-858 form which the department representative completed in the claimant's name, entitled "Application For Training And Additional Allowances While In Training Under The Trade Act of 1974, As Amended", specifically requests vocational training and TRA allowances -- benefits under the TAA program -- and contains no reference to the ATAA program or the benefits available under it.

The department then issued the determination in this case. It was also specifically limited to the issue of the claimant's eligibility for TRA payments and other TAA program benefits, and it also contained no reference to the ATAA program or the benefits available under it. The determination held that the claimant was ineligible for TRA payments because he had failed to enroll in full-time approved training or to receive a training waiver within the 16th week of his most recent "qualifying" separation or the last day of the 8th week after the certification date. This was a reference to the "16/8-week deadline" contained in 19 U.S.C. § 2291(a)(5)(A), an eligibility standard relating to TRA payments.

On appeal, the administrative law judge concluded, citing Christine L. Tracy (LIRC, January 27, 2005), that the TAA-858 form which the department representative had completed and signed would have sufficed under 19 U.S.C. § 2291(c) as a waiver of the training requirement. The administrative law judge then took up the question of the claimant's eligibility for ATAA benefits. He concluded that the claimant could not be found eligible for ATAA benefits because he began his employment with Falk before his adversely affected employment with Metso had ended. He therefore issued a decision modifying the determination to conform to his decision and affirming it as modified, stating as the ultimate affect of his decision that the claimant was ineligible for ATAA.

The claimant filed a petition for commission review. He asserts that he was informed that Metso would be stopping production, that after this he sought out other employment, and that the notice that the plant was closing was the only reason he did so. He argues that he was not informed of the proper procedure to follow in filing for assistance and that he feels he is entitled to assistance. 
 

Discussion -- Based on its review of the record, and after considering the applicable law, the commission concludes that the administrative law judge's decision was problematic in a number of respects. First, the administrative law judge misread Tracy. In that decision, the commission held that TAA-858 forms do not suffice as waivers, and that only formal department determinations waiving the training requirement are sufficient to constitute a "written statement" waiving the training requirement under 19 U.S.C. § 2291(c) for purposes of satisfying 19 U.S.C. § 2291(a)(5)(C). Second, the administrative law judge should not have taken up the question of the claimant's eligibility for ATAA benefits, because the issue of the claimant's eligibility for ATAA had not been addressed in the determination and had also not been identified as an issue in the notice of hearing. While Wis. Admin. Code § DWD 140.06(3) allows an administrative law judge to receive evidence and render a decision on issues not listed on the notice of hearing if each party is so notified at the hearing and does not object, the administrative law judge did not notify the claimant that he intended to address the question of claimant's ATAA eligibility. Finally, apart from the fact that the issue should not have been taken up at all, the administrative law judge's holding that the claimant was ineligible for ATAA because he began his employment with Falk before his adversely affected employment with Metso had ended was inconsistent with the commission's decision in Michael J. Bernier (LIRC, October 5, 2005), in which the commission expressly rejected this interpretation of the ATAA eligibility requirements.

Normally, in such a situation, the commission would set aside the administrative law judge's decision with respect to ATAA benefits and limit its review to the administrative law judge's decision on TAA benefits. However, the situation here is complicated by the fact that the claimant was apparently not actually seeking TAA benefits at all, but rather ATAA benefits.

It is unclear why the department proceeded as it did in taking an application only for TAA program benefits, issuing a determination only with respect to those benefits, and not taking any action with respect to the claimant's apparent interest in ATAA program benefits.

The commission recognizes that it is possible that there was a misstatement by the claimant or a misunderstanding by the department representative about the type of benefits the claimant was seeking, which led to a mistaken focus solely on TAA benefits.

Another possibility is that the department considers it appropriate, when a claimant seeks any kind of benefits under the Trade Act, to issue determinations concerning all potential issues arising with respect to both TAA and ATAA eligibility. However, while this would explain why a determination was issued as to TAA eligibility, it would not explain why there was no determination issued as to ATAA eligibility.

Still another possibility, which the commission cannot discount, is that the department takes the view that the 16/8-week deadline applies to ATAA program benefits as well as to TRA payments under the TAA program, so that a determination that the claimant did not meet that deadline is also dispositive of, and serves as a determination as to, eligibility for ATAA program benefits.

Without a better understanding of why the department did not make an express determination as to the claimant's eligibility for ATAA benefits, the commission cannot conduct a proper review in this matter. In these circumstances, the commission believes that the most appropriate course is to set aside both the administrative law judge's decision, and the determination from which it arose, and to remand this matter to the department for it to investigate and issue such determinations as are necessary to clearly and separately resolve the questions presented here as to this claimant's potential eligibility for TAA program benefits and ATAA program benefits.

For the foregoing reasons the commission now makes the following:

ORDER

The December 12, 2005 decision of the administrative law judge in this matter is set aside. The September 2, 2005 determination of the department in this matter is set aside. This matter is remanded to the department for it to investigate and issue determinations concerning the claimant's eligibility for TAA program benefits and ATAA program benefits.

Dated and mailed February 8, 2006
domacjo . trr : 110 : 8

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



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Footnotes:

(1)( Back ) The ATAA program is contained in one section of the Trade Act, 19 U.S.C. § 2318. The U.S. Department of Labor has as yet promulgated no regulations concerning the program. It has, however, issued a number of Training and Employment Guidance Letters ("TEGLs") concerning the ATAA program. TEGL No. 2-03 (Aug. 6, 2003); TEGL No. 2-03, Change 1 (July 14, 2004); TEGL No. 2-03, Change 2 (October 29, 2004).

(2)( Back ) For workers to be eligible for ATAA, the certification covering their employer must specifically certify that employer with respect to that program as well as the TAA program. The certification of Metso in this case expressly certified it as to both programs

 


uploaded 2006/02/10