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

MOISES HERNANDEZ, Claimant

TRADE ACT DECISION
Hearing No. 09602456MW


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 employee is ineligible for weekly TRA and HCTC.

Dated and mailed July 8, 2009
hernamo . tsd : 110 :

/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). (1)

Facts -- The claimant worked for Southwest Metal Finishing. He was laid off from that job on April 30, 2008 (week 18 of 2008). He then got a job at Polco Metal, where he worked from May 5, 2008 (week 19) until he was laid off on May 15, 2008 (week 20). After a month without work, he then got a job with Nissen Associates, where he worked from June 12, 2008 (week 24) until he was laid off on December 16, 2008 (week 51).

The Trade Act and its regulations have a number of provisions which require cooperating state agencies, such as the Department of Workforce Development, to provide information about the procedures and deadlines for applying for Trade Act benefits to persons who have a potential eligibility for such benefits. See, James Duckworth (LIRC, Jan. 8, 2009). The department is required to provide general information about the Trade Act and its potential benefits to all individuals who file claims for unemployment insurance benefits. It is also required to directly provide information about Trade Act benefits and deadlines to individuals who it is aware are potentially eligible because of having worked for employers which have been certified under the Act. The department is informed of all Trade Act certifications affecting Wisconsin workers, and it has access to information allowing it to identify specific individuals who worked for Trade Act-certified employers from a number of sources, including active UI claims.

Department records reflect that the claimant had started a claim for unemployment insurance benefits in week 52 of 2007. He reactivated that UI claim after he was laid off from his job at Polco Metal in week 20 of 2008. At that time, he would have been required to provide the department with information about his employment history since the last time he had been actively claiming. Thus it seems reasonable to infer that, at least as of that time, the department would have been aware that the claimant had been employed with, and separated from employment with, Southwest Metal Finishing.

On June 24, 2008, a petition was filed seeking to have Southwest Metal Finishing determined to have been adversely affected by foreign competition under the Trade Act. On July 23, 2008, that petition was granted by the U.S. Secretary of Labor and Southwest Metal Finishing was certified. The impact date stated in the certification was June 23, 2007; the claimant's layoff was thus a qualifying separation under this certification. The department would have been aware that this petition had been granted.

The claimant's qualifying separation from Southwest Metal Finishing occurred in week 18 of 2008; the last day of the 16th week after that week was August 23, 2008. The Secretary of Labor issued the certification covering the claimant in week 30 of 2008; the last day of the 8th week after that week was September 20, 2008. The later date governs; thus, the "16/8-week deadline" passed for the claimant on September 20, 2008. The claimant had not applied for Trade Act benefits by that time, because he was not aware of the fact that he could or should do so or that there was a deadline affecting his potential eligibility.

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 in late 2007, or when he reactivated that claim in mid-2008. 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 prior to the time that the "16/8-week deadline" ran on the claimant's potential eligibility. The only evidence on that subject was testimony by the department witness at the hearing that "normally" the department would invite persons such as the employee to an Intake Orientation Session to apply for Trade Act benefits, so that they are ensured of meeting the deadline, but that the department had no record that it ever did so in the employee's case.

Discussion -- It is clear that the reason the claimant did not meet the "16/8-week deadline" was that he was not aware of it. However, the application of the "16/8-week deadline" may not be avoided on equitable grounds relating to the department's failures to inform claimants about the deadline. Notwithstanding 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. 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, Duckworth, supra.

For the foregoing reasons, the commission must affirm the decision of the ALJ.


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Footnotes:

(1)( Back ) The department's initial determination and appeal tribunal decision both also assume the applicability of a related provision, in 19 U.S.C. § 2291(a)(5)(A)(ii)(III), which allows the 16-week and 8-week deadlines to be extended by 45 days in certain circumstances. The commission does not believe that this provision was applicable. The 45-day period applies "if the Secretary determines there are extenuating circumstances that justify an extension in the enrollment period." The "Secretary" referred to is the U. S. Secretary of Labor. The Secretary's authority to make this kind of determination is not one which is delegated to cooperating state agencies. There is no evidence that the Secretary of Labor ever made a determination that the 45-day extension was applicable in this case.