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

THOMAS A. LUCKEY, Claimant

TRADE ACT DECISION
Hearing No. 08603758MW


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 DECISION paragraph of the ALJ's decision is deleted and the following is substituted therefor:

The department's decision is affirmed. Accordingly, the claimant is not eligible for ATAA benefits. The claimant may have remaining TRA/TAA benefits available, if he is otherwise eligible for them.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the claimant is not eligible for ATAA benefits. The claimant may have remaining TRA/TAA benefits available, if he is otherwise eligible for them.

Dated and mailed August 19, 2008
lucketh . tsd : 110 : TRA

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

One of the benefits available under the Trade Act is Alternative Trade Adjustment Assistance ("ATAA"). The ATAA program provides a cash benefit to adversely affected workers aged 50 or over who find reemployment that pays less than their adversely affected employment. However, to be eligible for the benefit a claimant must obtain full-time reemployment not more than 26 weeks after the date of their separation from adversely affected employment. 19 U.S.C. § 2318(a)(3)(B)(ii). The claimant was denied ATAA benefits because he did not meet that requirement.

There is no dispute as to the facts: the claimant last worked for Delphi on December 22, 2006, and he started full-time employment on August 24, 2007, well more than 26 weeks later. Therefore, he can not be found eligible for ATAA.

The claimant argues that he did not know about this requirement, and that if he had been told about it by the department, he would have started working full-time sooner. However, as the ALJ notes, this kind of argument about what would be fair or equitable cannot overcome the plain, mandatory provisions of the Trade Act.

In any event, the commission sees no reason to fault the department here. It would have had no basis for advising the claimant about potential Trade Act benefit entitlements and procedures during the 26 weeks after he left his job, because the claimant's employer was not even certified under the Trade Act until almost a year after the claimant left his employment.

For the foregoing reasons, and except as noted below, the commission therefore agrees with and affirms the decision of the ALJ.

 

NOTE: The commission has modified the ALJ's decision to correctly state its effect. The issue determined by the Initial Determination, and thus the issue presented here, was limited to the claimant's eligibility for ATAA benefits. The decision that the claimant is ineligible for ATAA benefits does not necessarily mean that he is ineligible for any benefits under the Trade Act.

The ATAA program was created as an alternative to other benefit programs under the Trade Act, including Trade Readjustment Allowances (TRA) and Trade Adjustment Assistance (TAA) benefits such as payment for training. While an individual who is receiving ATAA benefits can not receive other benefits under the Trade Act, if an individual is not eligible for and is thus not receiving ATAA, the law does not limit their eligibility for other benefits. (1)   This was correctly reflected in the Initial Determination, which described its effect as being that the claimant was ineligible for ATAA benefits but which noted that he had remaining TRA/TAA benefits available. Whether the claimant is actually eligible for any such other benefits, will depend on whether he applies for and satisfies the eligibility for such other benefits. This decision, as noted, is limited to resolving the issue of the claimant's eligibility for ATAA benefits.



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Footnotes:

(1)( Back ) The Trade Act provides, in 19 U.S.C. § 2318(a)(5), that a worker receiving payments pursuant to the ATAA shall not be eligible to receive any other benefits under the Trade Act.

 


uploaded 2009/09/26