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

RONALD J PUDDY, Claimant

TRADE ACT DECISION
Hearing No. 09402560AP


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's request for approval of additional training in Elgin, Illinois under the Trade Act of 1974 (as amended), 19 U.S.C. § 2296, is denied.

Dated and mailed January 11, 2010
puddyro . tsd : 110 :

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

This case concerns the claimant's request for payment under the Trade Act for additional training, in addition to the already-approved training program in which he has been involved.

As the ALJ noted in her decision, the Trade Act sets out detailed and specific requirements which must be met in order for a training program to be approved. Those requirements were not met here, in a number of respects.

The Trade Act requires that for a training program to be approved, it must be appropriately determined that the worker would benefit from appropriate training. 19. U.S.C. § 2296(a)(1)(B). The claimant's Trade Act coordinator reasonably found that she could not make the required determination that the claimant would have benefitted from the two short courses for which the claimant was seeking approval. The fact that the claimant had not completed even the original training program for which he had been approved, provided a rational basis for that finding.

The Trade Act also requires that for a training program to be approved, it must be appropriately determined that the training is "reasonably available" to the worker. See, 19 U.S.C. § 2296(a)(1)(C). Under the regulations promulgated by the U.S. Department of Labor interpreting and applying the Trade Act's training approval requirements, for training to meet the "reasonably available" standard it must be "reasonably accessible to the worker within the worker's commuting area". See, 20 C.F.R. § 617.22(a)(4)(i). These regulations also provide:

(ii) In determining whether or not training is reasonably available, first consideration shall be given to training opportunities available within the worker's normal commuting area. Training at facilities outside the worker's normal commuting area should be approved only if such training is not available in the area or the training to be provided outside the normal commuting area will involve less charges to TAA funds.

The additional training for which the claimant was seeking payment approval was conducted in Elgin, Illinois, far outside of the commuting area of the claimant, who resides in Plymouth, Wisconsin. Lack of availability of comparable training in the claimant's area was not demonstrated. The expenses connected with the travel required (including overnight travel) would clearly have created more, rather than less expense than local training. The training in question here clearly did not meet the "reasonably available" standard.

In addition to the foregoing, applicable federal regulations provide that "no individual shall be entitled to more than one training program under a single certification.". 20 C.F.R. 617.22(f)(2). As the claimant's Trade Act coordinator noted in her written confirmation of the denial of approval for the training, and as the record here clearly shows, the claimant had already agreed to and signed off on a training plan. The additional courses for which the claimant sought payment, almost a year after entering into that training plan and at a point at which that training plan should have been completed, were not part of that training plan, and would have constituted a further training program.

The claimant's main argument seems to be that it would be unfair to deny payment for the courses because he reasonably relied on a belief that payment for the courses would be approved, and went ahead and paid for them himself. Thus, he asserts in his petition for review that "my TRA person gave me permission via email to attend 2 classes", and that after he took the classes she wrote him and denied payment for the classes. However, that is simply not true.

The earlier email correspondence which the claimant contends was "permission" to attend the courses, was not such at all. The claimant had emailed his Trade Act coordinator in March to ask for payment to attend some courses, and she had responded by simply asking for more information about who would be paid, where the training would be held and what the cost would be. She indicated that she needed such information to set up payment arrangements. When he provided her with further information, she wrote back to him, "I will contact them and see what I can set up." This by no means constitutes definite approval of payment for the training.

Furthermore, whether or not this earlier email correspondence could be considered to suggest that approval would be granted, subsequent communications made it clear that approval had not been granted.

Two emails from the claimant to his Trade Act coordinator on April 12 and 14 show that even he understood at that point, that the approval of payment for the courses at issue was up in the air. When he followed up several days later, his Trade Act coordinator responded with an April 17 email which clearly let him know that the question was undecided. Then, in a subsequent exchange of emails on April 22 - well before the claimant had registered for the courses at issue - the claimant asked whether he should sign up for the classes, and his Trade Act coordinator wrote back,

You can register for the class but I still have not heard back from madison and cannot verify that we can pay for it.

(emphasis added). This occurred before the claimant had registered for the courses.

Most significantly, in an in-person meeting between them in early May, the claimant's Trade Act coordinator expressly told the claimant that she was denying approval of the additional training for which he was seeking payment. This too occurred before the claimant had registered for or paid for the courses.

The claimant disputed the testimony of his Trade Act coordinator that in this meeting she expressly told him that approval for the training was denied; he asserted that she merely said that she had not yet made a decision, and that if she was going to give him a letter of denial it would be within a couple of days. This conflict between the testimony of the Trade Act coordinator and that of the claimant, creates a credibility dispute. It is evident that the ALJ credited the testimony of the Trade Act coordinator on this point rather than the testimony of the claimant, given the ALJ's finding that the request for approval of the training was denied. The commission also credits the testimony of the Trade Act coordinator over that of the claimant on this point. The claimant's failure to frankly acknowledge the significance of April 22 email in which his Trade Act coordinator told him expressly that she could not verify that the courses would be paid for, shows that his insistence that the training was initially approved is not credible.

Because the claimant had been clearly and repeatedly informed before he registered for and paid for and attended these courses, that payment for the courses was not approved, he has no basis for suggesting that he reasonably relied to his detriment on some belief that he would be reimbursed.

For the foregoing reasons, the commission agrees with and affirms the decision of the ALJ.

 

cc: Kohler Co


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