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

JOHN J JUDD, Claimant

TRADE ACT DECISION
Hearing No. 08402421SH


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 ineligible for Trade Readjustment Allowances or the Health Coverage Tax Credit. The claimant is eligible to apply for training, relocation or job search assistance.

Dated and mailed February 6, 2009
juddjoh . tsd : 110 : 9   TRA

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

This is a case in which a claimant failed to meet the "16/8-week deadline" in the Trade Act. That deadline requires that in order to be eligible for weekly TRA payments, a claimant must either be enrolled in approved training, be granted a waiver of the training requirement, or have completed approved training, by the later of the last day of the 16th week after the week of the worker's most recent total separation from adversely affected employment, or the last day of the 8th week after the week in which the Secretary issues a certification covering the worker's employing unit. See, 19 U.S.C. § 2291(a)(5)(A)(ii)(I)-(II).

The claimant worked for Kohler Company. He was laid off on June 30, 2007.

The claimant had previously initiated a claim for unemployment insurance (UI) benefits in February, 2007, and after he was laid off from Kohler he reopened that claim, in the calendar week beginning July 1, 2007 (week 27).

As was discussed in In re James L. Duckworth III, (LIRC, Jan. 2, 2009), the Trade Act and regulations promulgated thereunder contain a number of provisions which specifically require cooperating state agencies, such as the Department of Workforce Development, to timely provide information to persons who have a potential eligibility for benefits under the Trade Act, about the procedures and deadlines for applying for such benefits.

At the time the claimant was laid off, there had not even been a petition filed under the Trade Act seeking to have Kohler Company determined to have been adversely affected by foreign competition. Thus, there would have been no real reason to think he was even potentially eligible for Trade Act benefits at that time. However, as noted in Duckworth with regard to the Trade Act's requirement that workers be informed about Trade Act procedures and deadlines,

...in creating this requirement the Act and the regulations use the phrase "each worker", not the phrase "each adversely affected worker" which is used in other parts of the law and regulations. This clearly means, that the requirement extends not merely to individuals known to the department to be adversely affected workers (i.e., workers separated from employment with a certified, adversely affected employer), but to all workers. In other words, everyone filing an initial claim for UI benefits should be getting information about the Trade Act and its potential benefits -- and deadlines.

Thus, claimant should have been provided information about the Trade Act, and its procedures and deadlines, when he initiated his claim for UI benefits in February, 2007. However, there is no evidence in the record here as to whether this in fact occurred.

On October 16, 2007, a petition was filed seeking to have Kohler Company determined to have been adversely affected by foreign competition under the Trade Act. On February 12, 2008, the petition was granted by the U.S. Secretary of Labor and Kohler Company was certified. The impact date stated in the certification was October 12, 2006; the claimant's layoff was thus a qualifying separation under this certification.

At the time the petition concerning Kohler Company was granted, the claimant was still receiving UI benefits. He received either full or partial weekly UI benefits in most of the weeks from the time he began his UI claim through the calendar week ending October 25, 2008 (week 43).

The claimant's qualifying separation from Kohler Company occurred on June 30, 2007. The last day of the 16th week after the week of his last day of work was October 20, 2007, and the last day of the 8th week after the week in which the Secretary of Labor issued the certification covering the claimant was April 11, 2008. The later date governs; thus, this deadline passed for the claimant on the April date. (1)

As noted above, there is no evidence in the record here as to what information, if any, the claimant may have been given about the Trade Act when he initiated his claim for UI benefits. Indeed, there is no evidence in the record of the claimant being provided any information by the department about his potential eligibility for benefits under the Trade Act, at any time. There was no department witness at the hearing, and no exhibits were received. The only evidence as to how the claimant eventually came to seek benefits under the Trade Act, was his testimony that in May or June 2008 -- well after the expiration of the deadline -- the claimant went into the UAW union hall to ask about vacation and saw something about a meeting to be held for UAW members about benefits available for persons who had been laid off from Kohler. He went to that meeting, and there he learned about the potential benefits under the Trade Act, which he then presumably sought at some point from the department. Of course, by that point the 16/8-week deadline had passed, so he was issued the determination in this case which found him ineligible for TRA payments (or the Health Coverage Tax Credit).

The claimant explained that he was not necessarily seeking any training so the deadlines should not apply to him. That is, as the ALJ noted, incorrect. First, as a general matter, all applicants for benefits under the Trade Act are expected to participate in training, unless a specific decision is made that this requirement should be waived. The 16/8-week deadline does apply even to individuals for whom the training requirement is eventually waived. The point of the deadline, is to ensure that the determination of what training is necessary (or whether training is necessary), is made soon after the individual has a separation from employment, so that the training can be started as soon as possible.

The claimant's basic contention, reflected in his petition for review, is that he was not given notice about the procedures and deadlines for applying for Trade Act benefits but only found out about it when he went into the union hall. However, application of the 16/8-week deadline may not be avoided even on equitable grounds, such as an assertion that the claimant was never informed of the existence of the deadline.

[No]twithstanding the extent of the shortcomings in the department's compliance with its obligations to inform potential claimants of their rights and obligations concerning filing for benefits under the Trade Act, the commission cannot provide relief to this or any other claimant on that basis.

Duckworth, supra. There is no "good cause" exception in either federal law or rules under which a claimant may be found eligible for TRA payments notwithstanding failing to meet the 16/8-week deadline where the failure was not their fault. The deadline is absolute, and the commission is bound by law to apply it. See, DWD v. LIRC and Mary Robinson et al., 2006 WI App 241, 297 Wis. 2d 546, 725 N.W.2d 304.

For the foregoing reasons, the commission affirms the decision of the ALJ.

 

cc: Kohler Co. - c/o Jack Pawley



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


Footnotes:

(1)( Back ) The ALJ correctly noted, that there was no evidence that the Secretary of Labor issued the kind of extension contemplated under  2291(a)(5)(A)(ii)(III), which would have extended the deadline by 45 days.

 


uploaded 2009/02/09