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

DEREK L. HARRIS, Claimant

TRADE ACT DECISION
Hearing No. 08601984MW


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, and for the reasons stated in the attached Memorandum Opinion, the commission now issues the following:

ORDER


The April 4, 2008 decision of the ALJ in this matter is set aside. The January 4, 2008 department determination in this matter is set aside. This matter is remanded to the department for it to investigate and issue another determination on the question of whether the claimant is eligible for benefits under the Trade Act.

Dated and mailed June 5, 2008
harrisd.tpr : 110 : TRA

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Facts -- Derek Harris worked for Delphi from sometime in late 2005 to sometime in late 2006. He was laid off from his job there, in connection with which he received a large "buyout" payment. He then took a new job with Delphi, as a temporary employee. He was then discharged from that job due to attendance issues. This last separation occurred in December, 2006.(1)

Some time after his employment with Delphi ended, Harris received a letter from the department about being potentially eligible for benefits under the Trade Act and advising him of a meeting he could go to in order to find out more and to apply. In response to this letter, Harris went in on December 5, 2007, and with the assistance of a department employee, completed application materials for benefits under the Trade Act.

Subsequently, an investigator for the Department of Workforce Development (DWD) issued an Initial Determination concerning Harris' eligibility for Trade Act benefits, finding that he was not eligible because he had not been separated from adversely affected employment "due to a lack of work". It appears that this finding was based on an assumption that the important separation for purposes of determining his eligibility for Trade Act benefits was his most recent separation, which had been the December 2006 attendance-based discharge from the temporary employment position at Delphi.

Harris appealed this determination. After hearing, an ALJ affirmed the determination. Her rationale also seemed to have to do with the separation "due to lack of work" issue, although she also discussed another issue (concerning whether Harris had been accepted into a training program) which had neither been addressed in a determination nor mentioned in the notice of hearing. Harris then petitioned for review.

Discussion - The DWD's Initial Determination and the ALJ's decision were in error in focusing on Harris' second separation from employment (his discharge from a position as a temporary employee due to attendance issues) as the separation which determined his potential eligibility for Trade Act benefits. In order to be eligible for benefits under the Trade Act, a claimant must have been separated from employment with an adversely affected employer due to lack of work, on or after the "impact date" established in the U. S. Department of Labor's certification of that employer as adversely affected under the Trade Act. The impact date established by the certification which the Initial Determination looked to in this case (Petition No. 62296) was October 3, 2006. It appears that the claimant here had two separations from employment after that date. The first was the permanent layoff from his regular employment. (2) The second, which occurred after he then took a new position as a temporary employee, was his discharge from that position due to attendance problems. The DWD's Initial Determination and the ALJ's decision seem to reflect an assumption that the nature of the most recent separation governs the question of eligibility. That is not correct. Assuming that prior to his initial layoff the claimant was working for the employer covered by the certification in Petition No. 62296, then he had a qualifying separation within the impact period when he was permanently laid off from that employment. Once that occurred, he would become potentially eligible for benefits under the Trade Act (subject, of course, to the various other eligibility conditions). Subsequent re-employment with and discharge from that employer would not undo that potential eligibility.

However, this is not the principal reason that the commission has set aside the ALJ's decision and the Initial Determination and remanded this matter for further investigation. That reason is, that the record shows that there is an unresolved issue here, having to do with the identity of the employer involved, which may preclude any finding of eligibility entirely apart from the "separation due to lack of work" issue.

The record shows that in December, 2007, the DWD invited the claimant to come in and apply for benefits under the Trade Act, and took benefit application materials from him, based on a belief that he had been employed by and separated from employment with "Delphi Corp Powertrain Div", which DWD has assigned UI Employer Account No. 993248. The U. S. Department of Labor had issued a certification on October 17, 2007, in response to Trade Act Petition No. 62296, as to "Delphi Corporation Powertrain Division" of Oak Creek, Wisconsin, stating that all workers of that employer who became separated from employment on or after October 3, 2006 were eligible to apply for Trade Act benefits. The application materials which DWD prepared for and accepted from the claimant on December 5, 2007, expressly referred to that employer by name, by Wisconsin UI Employer Account number 993248, and by U. S. Department of Labor Trade Act petition number 62296. DWD's subsequent investigation and Initial Determination concerning claimant's eligibility for Trade Act benefits, similarly referred to this employing unit, by both that name and that Account number, and by this petition number.

However, records in the file (the "Adjudicator's Preliminary Claimant Report") show that all of the wages reported for this claimant during all of the relevant time period had been with "Delphi Automotive Systems", an employing unit which DWD has assigned UI Employer Acct. No. 237784 AA. In addition, records in the file show that when a department investigator was looking into the December, 2006 discharge of the claimant from his temporary employment position due to attendance problems, she identified the relevant employer as "Delphi Automotive Systems", UI Employer Acct. No. 237784 AA. (3)

DWD recognizes at least three different employing units in Wisconsin which have "Delphi" in their name. As is reflected by the fact that they are assigned different employer account numbers, they are evidently treated as separate entities:

Delphi Automotive Systems Services Inc. - UI Acct. No. 237784 AA

Delphi Corp. Electronics & (sic) (4) - UI Acct. No. 993251

Delphi Corp. Powertrain Div. - UI Acct. No. 993248

The U. S. Department of Labor also appears to recognize these as separate entities for purposes of the Trade Act. The commission has inspected copies of the three decisions which have been issued by the U. S. Department of Labor on Trade Act petitions involving a Wisconsin employer with a name beginning with "Delphi" (5). One of them, arising from Petition No. 62296, concerns "Delphi Corporation, Powertrain Division" of Oak Creek; this presumably relates to the entity which DWD has on record as "Delphi Corp. Powertrain Div" with Employer Acct. No. 993248. Another petition, arising from Petition No. 62297, concerns "Delphi Corporation, Electronics & Safety Division" of Oak Creek; this presumably relates to the entity which DWD has as on record as "Delphi Corp. Electronics &", with Employer Acct. No. 993251. In both of these decisions, there is a declaration that the employing units involved are "separately identifiable" from the other. Finally, a 2002 decision arising from Petition No. 41162 involved "Delphi Automotive Systems Corporation, Delphi Delco Electronics Division, Body and Security Team". (Whether or not this was the same entity that DWD has as "Delphi Automotive Systems Services Inc.", Employer Acct. No. 237784 AA, makes no difference here because the petition was denied, and thus created no potential eligibility for workers of that employing unit).

As noted above, the department's own records as to the source of the wages earned by the claimant during the time period material herein appear to show that he was employed by Delphi Automotive Systems, UI Employer Acct. No. 237784 AA. Neither the U. S. Department of Labor certification in the matter of Petition No. 62296, or any other such certification, extend to employees of Delphi Automotive Systems.


When deciding whether a claimant is potentially eligible for benefits under the Trade Act, it is essential to take care in determining whether the claimant was employed with an employing unit covered under a U. S. Department of Labor certification. See, e.g., Steven P. Santner (LIRC, May 21, 2003). Sufficient care was not taken here to make that determination. It appears that the claimant may in fact not have been an employee of the employer which the DWD's TRA intake worker, and the investigator, appear to have assumed he was employed by. In any event, the record as it now stands is such that the commission does not believe it can make a finding on that question. It is for this reason that the commission has set aside the decisions and remanded this matter for a new investigation, which should specifically address and decide, among other things, whether the claimant was employed with the employing unit covered under the certification in Trade Act Petition No. 62296, whether he had one or more separations from employment with that employer, and if so when.


cc: Derek Harris
 


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2008/06/20


Footnotes:

(1)( Back ) In a separate determination, not at issue herein, the department determined that this separation was not for misconduct under § 108.04(5).

(2)( Back ) The record actually does not contain any specific evidence as to the exact date of this layoff. However, the claimant's testimony supports the inference that it occurred after October 3, 2006.

(3)( Back ) To further complicate the issue, the claimant has submitted to the commission a photocopy of a check stub showing that the lump sum payout he received after his layoff came from "Delphi - Debtor in Possession - Delphi Energy and Chassis". At least as far as name is concerned, this does not correspond to any of the other Delphi entities mentioned above.

(4)( Back ) This name is truncated in this manner when reproduced in department records. Based on other sources, it appears that the full name of this employing unit is "Delphi Corp. Electronics & Safety Division".

(5)( Back ) These can be accessed through a search form at the website of the U. S. Department of Labor, at http://www.doleta.gov/tradeact/taa/taa_search_form.cfm.