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

JANET J DEROUIN, Claimant

TRADE ACT DECISION
Hearing No. 06400997AP


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, except that it makes the following modifications:

The second to last sentence of the first paragraph of the Findings of Fact and Conclusions of Law is deleted and the following is substituted therefor:

She gave a two-week notice to the employer, Emerson Tool Company, that her last day of work would be on Friday, September 23, 2005, and that was her last day of work for Emerson.

The last sentence of the third paragraph of the Findings of Fact and Conclusions of Law is deleted and the following is substituted therefor:

In this case, the employee quit to accept other work in order to avoid a period of possible unemployment when the department closed in December and therefore, her separation of employment with the employer on September 23, 2005 (week 39 of 2005) was not due to a lack of work at the time of her quitting.

In both the fourth paragraph of the Findings of Fact and Conclusions of Law, and in the DECISION paragraph, "week 44 of 2005" is deleted and "week 39 of 2005" is substituted therefor.


DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for TRA benefits based on her separation of employment with Emerson Tool Company in week 39 of 2005.

Dated and mailed June 26, 2006
derouja . tmd : 110 : 4 TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In her petition for review, the claimant states that her separation from Emerson Tool was "due to my job as it was to be eliminated due to the facilities moving to Mexico." She also states, "[a]s of December 2005 my whole Department was without jobs and we were terminated."

It is true that the claimant's job was slated to end due to the fact that Emerson Tool was going to move production to Mexico. However, when the claimant learned of this fact in September, 2005, she was told that the anticipated ending of her job would be occurring in December, 2005. She could have continued to work in her job until then. Instead, she chose to voluntarily resign from her job.

As the Appeal Tribunal Decision explained, under the Trade Act benefits are available only to "adversely affected workers", and to be an "adversely affected worker" as that term is used in the Act, a claimant must have been separated from their employment with the affected employer "because of lack of work." The commission has consistently held that even where it is clear that a claimant's employment with an affected employer is going to end at some point in the future, if that claimant could continue to work for that employer until that time but decides to end their employment sooner, the claimant does not leave that employment "because of lack of work." See, Frank C. Fore (LIRC, Dec. 13, 2000); Nancy Repka (LIRC, Dec. 23, 2002); Caryle Swanson (LIRC, Aug. 24, 2004); Ruth Tickler (LIRC, Aug. 17, 2005), aff'd., Tickler v. LIRC (Wis. Cir. Ct., Brown Co., April 4, 2006).

The claimant stated that representatives of Emerson told her that even if she quit or resigned her work at Emerson to go to a new job and then did not make it through the probationary period at that new job, she was still "signed up" for and would be able to receive benefits under the Trade Act. Unfortunately, even if the claimant was indeed given and relied on this inaccurate information by representatives of Emerson, this does not provide a basis on which she may be granted benefits. No provision of the Trade Act allows for benefits to be given to a person who is not eligible for them, simply because they were inaccurately told that they were or might be eligible. A claimant's entitlement to benefits is entirely dependent on whether he or she meets the eligibility standards of the Act. These include the requirement that the claimant's separation from employment with an adversely affected employer have been "because of lack of work." The claimant's separation from her employment with Emerson in September, 2005 was not "because of lack of work."

For the foregoing reasons, the decision of the Appeal Tribunal is affirmed.

 

NOTE: The commission has modified the Appeal Tribunal Decision to refer to the correct week of issue. The Initial Determination identified week 44 of 2005 as the week of issue, presumably because on a form submitted to the department (Ex. 1) the claimant had indicated that her separation from employment with Emerson occurred on October 26, 2005, which was in week 44 of 2005. However, the claimant's testimony at the hearing, as well as the letter from Emerson which was received into evidence as Ex. 2, make it clear that the claimant last worked for Emerson, and was separated from her employment there, on September 23, 2005, which was in week 39 of 2005.



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