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

FRANK D. BRASWELL, Claimant

TRADE ACT DECISION
Hearing No. 09200678EC


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 was a program manager for a computer manufacturing business, Celestica. He was laid off in September, 2004.

In January 2007, the claimant was hired as an Academic Dean (Business & Health) at Wisconsin Indianhead Technical College ("WITC").

The claimant's position as Academic Dean required certification by the Wisconsin Technical College System as an instructional supervisor. The claimant did not have the required certification, but he was allowed to begin working in the job pursuant to a "provisional" certification. This provisional certification stated that it was valid through August 31, 2010, and that in order to become eligible for a regular 5-year certification, he was required to complete certain requirements.

In January, 2009, the claimant began a Doctorate of Education program through Walden University. Also at that time, he filed an application for benefits under the Trade Act. The claimant was potentially eligible for such benefits because Celestica had been certified under the Trade Act (Petition TA-W-54644, May 4, 2004), and the claimant's September, 2004 layoff from Celestica had been within the applicable impact period under that certification.

Under the Trade Act, training can be approved if the following conditions are met:

(A) there is no suitable employment available for the worker,
(B) the worker would benefit from appropriate training,
(C) there is a reasonable expectation of employment following completion of the training,
(D) training is reasonably available to the worker from either governmental agencies or private,
(E) the worker is qualified to undertake and complete the training, and
(F) the training is suitable for the worker and available at a reasonable cost,

19 U.S.C. § 2296(a)(1). These standards are expanded on in regulations of the Department of Labor found at 20 C.F.R. § 617.22.

The department's initial determination denied approval for the training, reasoning both that the cost of the training exceeded the maximum amount payable, and that the claimant was employed full time earning wages greater than 80% of his wage at the adversely affected employer (Celestica). Following an appeal by the claimant, the ALJ affirmed the initial determination based on the second of these two rationales. The claimant petitioned for review of the ALJ's decision by LIRC. 
 

Claimant working and earning 80% of previous wage - The rationale that training could not be approved because the claimant was employed full time earning wages greater than 80% of his wage at Celestica, relates to the "no suitable employment available for the worker" condition found in 19 U.S.C. § 2296(a)(1)(A). Department of Labor regulations explaining that condition state that under it, "suitable employment" means "work of a substantially equal or higher skill level than the worker's past adversely affected employment, and wages for such work at not less that 80 percent of the worker's average weekly wage." 20 C.F.R. § 617.22(a)(1)(i).

At the time the claimant was laid off from Celestica, he was earning approximately $77,000/year. While he earned approximately $59,000/year when he started at WITC, by the time he applied for Trade Act benefits in January, 2009, his salary there was approximately $70,000/year, well over 80% of the $77,000/year he last earned at Celestica.

The claimant does not argue that his WITC academic dean job is not at a "substantially equal or higher skill level" than his Celestica program manager job, so the issue comes down to application of the quantitative part of the test.

The claimant's argument is that because he will at some point in the future lose his job at WITC unless he gets the training which will allow him to satisfy the certification requirement, the "no suitable employment available" condition should be deemed met.

The ALJ rejected this argument, reasoning that "the issue is whether there is suitable work now available". The commission agrees. The definition of "suitable employment" in 20 C.F.R. § 617.22(a)(1)(i) says that it means that

for the worker for whom approval of training is being considered under this section, no suitable employment is available at that time for that worker... and there is no reasonable prospect of such suitable employment becoming available for the worker in the foreseeable future.

(emphasis supplied). As the ALJ found, "[c]urrently there very clearly is such work since the claimant is now employed in that work".

The claimant also makes an alternative argument focusing on the "80%" factor used in the definition of "suitable employment". In his petition for review, the claimant notes that when he started his job with WITC it was at a significantly lower rate than he had been earning at Celestica, and he argues that "[m]y current wages should not be tied to a wage earned in 2004 unless that wage is subject to adjustment as well". Presumably, the adjustment he seeks is some sort of indexing of the wage he was earning when he was laid off from his adversely affected work, to increase it to what it might have been now if he had continued to work there. His argument would thus run, for example, that if he would have now been earning over $87,500/year at Celestica, his work at WITC would not be "suitable employment" because his $70,000/year salary is less than 80% of that.

One shortcoming of this argument is that there is no evidence to support it. That is, the claimant offered nothing more than speculation that if he had continued working at Celestica, he would now be earning over $87,500.

The more significant problem with his argument, though, is that it is precluded by the language of the applicable regulations. The definition of "suitable employment" in 20 C.F.R. § 617.22(a)(1)(i) is expressly tied to the claimant's "average weekly wage". In 20 C.F.R. § 617.3(f), a claimant's "average weekly wage" is defined as "one-thirteenth of the total wages paid to an individual in the individual's high quarter", and the "high quarter" is defined as the quarter in which the total wages paid to the individual were highest among the first four of the last five completed calendar quarters preceding the individual's "appropriate week". In 20 C.F.R. § 617.3(d), "appropriate week" is defined as "the week in which the individual's first separation occurred". In other words, under the applicable regulations the determination of whether there is suitable employment available for a claimant is expressly tied to the wages the claimant earned when laid off from adversely affected employment.

For the foregoing reasons, the commission concludes that approval of the training sought by the claimant was appropriately denied because the "no suitable employment available" condition in 19 U.S.C. § 2296(a)(1)(A) was not met.

In addition, the commission notes that even apart from the foregoing, the record establishes other reasons that approval of the training sought by the claimant would have to be denied under the applicable legal standards. 
 

Length of training program - The relevant regulations provide, at 20 C.F.R. § 617.22(f)(2), that "[t]he maximum duration for any approvable training program is 104 weeks (during which training is conducted)". When the claimant completed his application for Trade Act benefits, the description of the training program included a starting date of January 5, 2009 and an ending date of December 30, 2010. It seems fairly clear that the program starting and ending dates on the application were chosen so that the application would conform, at least on its face, with the 104 week limitation. However, this does not appear to accurately reflect the actual program.

The claimant testified that the doctoral program for which he sought funding was a three-year program, the first two years consisting of class work and the third year consisting of dissertation preparation. He also testified that the program involved 6 academic semesters and 2 dissertation semesters, for a total of 8 semesters. Even if there are three semesters per calendar year in the program, so that the claimant could indeed complete his "academic semesters" of class work by December 30, 2010, it is clear that the program itself is by no means "completed" at that time. As he has described the program - and as is conventionally the case in doctoral programs - the penultimate requirement of the program is completion and satisfactory defense of a dissertation. That requirement is a time-consuming and difficult one which simply cannot be written off as somehow not as much a part of the overall program as the initial class work.

In explaining why she initially submitted the application for training even though it involved tuition well in excess of DWD's limits, the department representative said, "[t]here is such a thing as partial funding". While she was apparently talking about funding only part of the tuition for an entire program, the same theory might be advanced as justification for funding only 104 weeks of a training program which actually takes longer to complete, with the thinking that this somehow avoids the problem of the 104-week limitation. The commission does not believe it does. Both the Trade Act itself and the DOL regulations suggest that what is anticipated is discrete training programs that are fully funded and carried through to completion. Thus, for example, 19 U.S.C. § 2296(a)(1)(C) provides that one condition which must be met to approve training is that "there is a reasonable expectation of employment following completion of such training", and § 2296(a)(1)(E) provides that another condition which must be met is that "the worker is qualified to undertake and complete such training".

In addition, the idea that the department could approve and pay for part of a training program is inconsistent with 20 C.F.R. § 617.22(h), which provides:

(h) Fees prohibited. In no case shall an individual be approved for training under this Subpart C for which the individual is required to pay a fee or tuition.

If DWD paid for only two years of a three-year program, the claimant would inevitably end up having to pay some of the fees necessary to complete the program. This would be contrary to 20 C.F.R. § 617.22(h). 
 

Relationship of the program to the needs of the worker - The ALJ found that "in order to be fully certified, [the claimant] must obtain a doctorate and meet certain specified course requirements". However, Exhibit 4, the provisional certification which was issued to the claimant in 2007, and Exhibit 5, the Instructional Supervisor Certification/Credential Assessment, make it clear that the claimant did not need to obtain a doctorate in order to obtain his regular certification. The only requirement was, that he earn a total of 14 academic credits in 7 specified subject matter areas. Furthermore, he did not need to earn these credits immediately. Instead, in order to keep his provisional certification (and thus his job) past August 31, 2010, all the claimant had to do was to earn 6 of the required credits by that point. To keep his provisional certification past August 31, 2012, all he had to do was to earn 6 more credits by that point. He would then have another two years (until August 31, 2014) to earn the final two required credits.

Under 20 C.F.R. § 617.22(a)(2), the approval requirement that "the worker would benefit from appropriate training" is defined as meaning that "there is a direct relationship between the needs of the worker for skills training or remedial education and what would be provided by the training program under consideration for the worker". Here, the claimant's needs are simply for a total of 14 academic credits in 7 specified subject matter areas, as described in the provisional certification and the Instructional Supervisor Certification/Credential Assessment. Where what would be provided by the training program under consideration is a full-blown, three-year doctoral degree program, this test is not met, because much of the training program under consideration for the worker would clearly not be directly related to the specific needs of the claimant.

The commission therefore finds and concludes that approval of the training program sought by the claimant was appropriately denied pursuant to and under the standards stated in 19 U.S.C. § 2296 and 20 C.F.R. § 617.22

DECISION

The decision of the administrative law judge is modified to conform with the foregoing and, as modified, is affirmed. Accordingly, the claimant's request for training is denied.

Dated and mailed June 25, 2009
braswel . trr : 110 : TRA

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

cc: Celestica Inc.


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