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

CHRISTINE L TRACY, Claimant

TRADE ACT DECISION
Hearing No. 04604111MW


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 by the department. At the request of the commission, the department filed a brief addressing certain issues identified by the commission.

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

Background -- The claimant worked for Tecumseh Products. On June 24, 2003, Tecumseh was certified under the Trade Act as adversely affected by foreign competition (Petition TA-W-51912). The claimant was separated from her employment with Tecumseh on September 5, 2003, within the impact period specified for this certification, and she was thus potentially eligible for benefits under the Trade Act.

The Trade Act has long provided that one of the requirements for eligibility for weekly Trade Readjustment Allowance (TRA) payments, is that claimants must either be enrolled in approved training, have completed such training, or have been granted a waiver of the training requirement. See, 19 U.S.C § 2291(a)(5). Amendments to the Trade Act made by the Trade Adjustment Assistance Reform Act of 2002 added a requirement under the "enrolled in" option of this provision, stating that the enrollment in training which that option concerned had to occur by the 16th week after the claimant's separation, the 8th week after the certification of the employer, or certain other defined dates. For convenience, this will be referred to herein as the "16/8-week deadline". This case presents issues as to whether the 16/8-week deadline was appropriately applied to disqualify this claimant from eligibility for TRA benefits.

After her separation from employment in September, 2003, the claimant applied for and began receiving unemployment insurance benefits. However, the claimant did not apply for benefits under the Trade Act at that time because she was unaware of any need to do so.

Given the date of certification of the claimant's employer and the date of her qualifying separation from employment, the 16/8-week deadline applicable to the claimant ran out on December 27, 2003. The claimant had not sought to apply for benefits under the Trade Act by that time.

The claimant did subsequently contact the department about applying for benefits under the Trade Act, after a friend told her that she thought she was supposed to apply for those benefits before her unemployment insurance benefits ran out. The claimant met with a representative of the department on February 23, 2004, and at that time she completed an "Application For Training And Additional Allowances" form (Form No. 858-1). That form has a section on which a department representative may indicate whether the request for training is approved or denied, or if a waiver of the training requirement is granted and the reasons therefor. The department representative completed this section of the form 858-1 by indicating that the training requirement was waived effective February 23, 2004, with a checkmark shown by the "delay in first available enrollment date for training" reason.

The claimant subsequently exhausted her UI benefits with payment for the week ending March 6, 2004, and was thus potentially eligible for TRA payments. However, on April 6, 2004, a different representative of the department issued a determination concluding that the claimant was not eligible for TRA benefits or the Health Coverage Tax Credit (1)   under the Trade Act, based on the 16/8-week deadline. The determination specifically relied on the grounds that:

The claimant failed to enroll in full-time approved training or to receive a training waiver within the 16th week of her most recent "qualifying" separation or the last day of the 8th week after the certification date.

(emphasis added). The determination thus reflected an interpretation of the 16/8-week deadline which applied it not only to enrollment in training, but also to the matter of a claimant being granted a waiver of the training requirement.

The claimant appealed the department's determination. Following a hearing, an ALJ acting as an Appeal Tribunal for the department issued a decision on July 2, 2004, reversing that determination. The ALJ evidently agreed with the department's interpretation that the 16/8-week deadline applied to waivers of the training requirement and thus with the conclusion that the claimant was, at least under the language of the Trade Act standing alone, disqualified from eligibility for TRA benefits. However, the ALJ concluded that the doctrine of equitable estoppel should be invoked to prevent the department from applying the 16/8-week deadline to the claimant. The ALJ based this conclusion on finding that the department had failed to inform the claimant of the 16/8-week deadline until it was too late and that the claimant's reasonable reliance led to her ineligibility.

The department filed a petition for commission review. In its petition, it argued that the ALJ erred in applying the doctrine of equitable estoppel.

The issue for decision presented by the department's petition in this case is whether the ALJ was justified in applying the doctrine of equitable estoppel against the department, to arrive at the conclusion that the department could not apply the 16/8-week deadline to the claimant.

However, there is another issue which, although not raised by a petition for review, is nevertheless clearly presented by this case. (2)   This issue is whether under the language of the Trade Act the claimant was properly considered to be ineligible for TRA benefits as a result of application of the 16/8-week deadline -- specifically, whether the 16/8-week deadline was appropriately applied to training waivers (as opposed to enrollment in training). The commission first addresses this issue. 
 

Interpretation and Application of the 16/8-week deadline -- In order to properly appreciate the issue of statutory interpretation presented by this case, it is important to closely consider the language and structure of the statute. The full text of the relevant portion of the training requirement language, as affected by the 2002 amendments, is as follows:

19 U.S.C § 2291. Qualifying requirements for workers

(a) Trade readjustment allowance conditions. Payment of a trade readjustment allowance shall be made to an adversely affected worker covered by a certification under subchapter A [19 U.S.C § § 2271 et seq.] who files an application for such allowance for any week of unemployment which begins more than 60 days after the date on which the petition that resulted in such certification was filed under section 221 [19 U.S.C § 2271], if the following conditions are met: . . .

(5) Such worker--

(A) (i) is enrolled in a training program approved by the Secretary under section 236(a) [19 U.S.C § 2296(a)], and

      (ii) the enrollment required under clause (i) occurs no later than the latest of--

(I) the last day of the 16th week after the worker's most recent total separation from adversely affected employment which meets the requirements of paragraphs (1) and (2),
(II) the last day of the 8th week after the week in which the Secretary issues a certification covering the worker,
(III) 45 days after the later of the dates specified in subclause (I) or (II), if the Secretary determines there are extenuating circumstances that justify an extension in the enrollment period, or
(IV) the last day of a period determined by the Secretary to be approved for enrollment after the termination of a waiver issued pursuant to subsection (c),

(B) has, after the date on which the worker became totally separated, or partially separated, from the adversely affected employment, completed a training program approved by the Secretary under section 236(a) [19 U.S.C § 2296(a)], or

(C) has received a written statement under subsection (c)(1) after the date described in subparagraph (B).

The "written statement under subsection (c)(1)" referred to in subparagraph (C) is a waiver of the training requirement granted under 19 U.S.C § 2291(c), "Waivers of training requirements". The standards governing the question of whether a claimant can be granted a training waiver are stated in that section.

The claimant here did not meet the first condition, stated in subparagraph (A) of 19 U.S.C § 2291(a)(5), of having been enrolled in training within the 16-week timeline, or the second condition, in subparagraph (B), of having completed an approved training program. However, the three conditions in 19 U.S.C § 2291(a)(5)(A), (B) and (C) are joined by a disjunctive (the "or" at the close of subparagraph (B)). Thus, if any one of the three conditions is satisfied, the provision as a whole is satisfied. This should mean, that a claimant could potentially be eligible for TRA payments under this provision where granting a training waiver is appropriate under the standards for such a waiver stated in 19 U.S.C § 2291(c).

As described above, a department representative did in fact complete and sign a department form (Form No. 858-1) stating that the claimant was granted a waiver of the training requirement and justifying this by reference to one of standards under 19 U.S.C § 2291(c) for granting such a waiver. However, the department then never issued a formal determination as to whether granting a waiver of the training requirement was or was not appropriate under the standards in 19 U.S.C § 2291(c). Instead, a different department representative issued the determination now at issue in this case, declaring that the claimant was ineligible because she had not been enrolled in training or been granted a waiver within the 16/8-week deadline.

In its brief addressing the issue of whether the 16/8-week deadline was appropriately applied to the matter of waivers of the training requirement as well as to enrollment in training, DWD stated,

[n]either federal law nor the code of federal regulations provide clear guidance regarding whether training waivers must be issued before the expiration of the 8/16 week deadline applicable to enrollment in approved training.

As to federal regulations, this is true. In fact, there have been no regulations at all promulgated by the U.S. Department of Labor since the adoption of the 2002 amendments to the Trade Act, and it is thus clear that there is nothing in the regulations under the Trade Act that could be viewed as explaining or clarifying the meaning of those amendments. However, the commission does not agree that the Act itself does not provide clear guidance on this question. On the contrary, the commission believes that as to this issue, the language of the Act is clear and unambiguous on its face, and that the interpretation relied on by the department simply cannot be squared with the language of the Act.

The 16/8-week deadline is found within, and by its express terms applies to, only subparagraph (A) of 19 U.S.C § 2291(a)(5), which relates to the "enrollment in training" condition. It does not state that it is applicable to, or otherwise refer to, the "waiver of training" provisions in subparagraph (C). Furthermore, there is nothing in subparagraph (C) that refers back to the 16/8-week deadline in subparagraph (A), or that creates a parallel deadline. On the contrary, subparagraph (C) expressly references another timeline: "the date described in subparagraph (B)". (3)   As noted above, (A), (B) and (C) are joined with an "or".

There is also nothing in 19 U.S.C § 2291(c), the provision which describes the standards governing granting of training waivers, that refers back to the 16/8-week deadline in 19 U.S.C § 2291(a)(5)(A), or that creates a parallel deadline.

Thus, it is difficult if not impossible to formulate any colorable argument based on the language of the Act, that the 16/8-week deadline in 19 U.S.C. § 2291(a)(5)(A) somehow also applies to the "waiver of training" option in 19 U.S.C. § 2291(a)(5)(C). Presumably for this reason, DWD did not attempt to develop or even suggest any such argument in its brief in this matter.

The only thing DWD pointed to as authority for the department's interpretation was a Training and Employment Guidance Letter ("TEGL") issued by the U.S. Department of Labor, "Training and Employment Guidance Letter No. 11-02, Change 1", (November 6, 2003). This TEGL states that the 2002 amendments "imposed a deadline by which a worker must be enrolled in training, or have a waiver of this requirement, in order to be eligible for TRA", and that state agencies must assist workers "in enrolling in an approved training program prior to the 8/16 week deadline, or issuing the workers waivers prior to the 8/16 week deadline, if appropriate". (4)   These statements do indeed seem to reflect an assumption that the 16/8-week deadline applies to the issuance of waivers of training as well as to enrollment in training. However, the commission concludes that these statements are not entitled to any weight as authority or guidance supporting that assumption.

In Christensen et al. v. Harris County et al., 529 U.S. 576, 120 S. Ct. 1655, 146 L.Ed. 2d 621 (2000), the U.S. Supreme Court considered a challenge brought under the Fair Labor Standards Act (FLSA) to a practice adopted by a county that its employees could be required to schedule time off in order to reduce accrued compensatory time. The employees challenging the county's practice argued that the Court should defer to a U.S. Department of Labor (Wage and Hour Division) "Opinion Letter" which took the position that under the FSLA an employer could compel the use of compensatory time only if the employee had agreed in advance. They invoked the Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), which held that a court must give effect to an agency's regulation containing a reasonable interpretation of an ambiguous statute. The Christensen Court rejected the argument that it should defer to this "Opinion Letter", stating:

Here . . . we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters -- like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law -- do not warrant Chevron-style deference. See, e.g., Reno v. Koray, 515 U.S. 50, 61, 132 L. Ed. 2d 46, 115 S. Ct. 2021 (1995) (internal agency guideline, which is not "subject to the rigors of the Administrative Procedure Act, including public notice and comment," entitled only to "some deference" (internal quotation marks omitted)); EEOC v. Arabian American Oil Co., 499 U.S. 244, 256-258, 113 L. Ed. 2d 274, 111 S. Ct. 1227 (1991) (interpretative guidelines do not receive Chevron deference); Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 157, 111 S. Ct. 1171, 113 L. Ed. 2d 117 (1991) (interpretative rules and enforcement guidelines are "not entitled to the same deference as norms that derive from the exercise of the Secretary's delegated lawmaking powers"). See generally 1 K. Davis & R. Pierce, Administrative Law Treatise § 3.5 (3d ed. 1994). Instead, interpretations contained in formats such as opinion letters are "entitled to respect" under our decision in Skidmore v. Swift & Co., 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. Ct. 161 (1944), but only to the extent that those interpretations have the "power to persuade," ibid. See Arabian American Oil Co., 499 U.S. at 256-258.

529 U.S. at 586-87. The Department of Labor's TEGLs, like the "interpretations contained in policy statements, agency manuals, and enforcement guidelines" referred to by the Court in Christensen, lack the force of law. While Christensen teaches that they might be "entitled to respect" to the extent that they have the "power to persuade", the commission finds them to lack even that power. These TEGLs do not provide any explanation of how an interpretation such as the one they reflect can possibly be arrived at from the statutory language given its structure. Furthermore, they do not articulate any specific reason why such an interpretation should be adopted. Indeed, they do not even seem to be pronouncing this interpretation as one that the Department of Labor has expressly considered and adopted; instead, they read as if that understanding of the statute's meaning was simply somehow taken for granted without any actual consideration having been given to it.

DWD argued in its brief that unless the 16/8-week deadline is treated as applying to the issuance of waivers of the training requirement as well as to enrollment in training, the effect of imposing that deadline on enrollment would be vitiated because anyone who failed to get enrolled in training within the 16/8-week deadline could simply seek a waiver of the training requirement. Thus, DWD argued:

If waivers could be granted after the expiration of this deadline, in most cases it would be irrelevant to even have the deadline. If an individual could show up after the deadline had passed and request a waiver, this would have the effect of completely bypassing the 8/16 week deadline . . . The only individuals who would be required to heed the 8/16 week deadline would be those few people who could not qualify for a waiver. Therefore, in order for the 8/16 week deadline to have any real significance, the same deadline must also apply to the receipt of a training waiver.

The commission is not persuaded that applying the statute as written would make the 16/8-week deadline for enrollment irrelevant. It would be very relevant for claimants not enrolled in training within that deadline for whom the required conditions for issuing a waiver of the training requirement were not satisfied. DWD's argument depends on the assumption that grounds for a waiver of the training requirement under 19 U.S.C § 2291(c) can be found "in most cases" and that only a "few" people would not qualify for a waiver. The commission is not aware of any basis for such an assumption, and it will not join DWD in making it.

More important, this is basically an argument about what it would have made sense for Congress to do in the 2002 amendments. Whether or not it would have made more sense for Congress to apply the 16/8-week deadline to waivers of the training requirement under 19 U.S.C § 2291(a)(5)(C) as well as to enrollment in training under 19 U.S.C § 2291(a)(5)(A), the language of the amendments clearly did not do so. The commission feels constrained to apply the law as it was written.

For all the reasons discussed above, the commission concludes that the 16/8-week deadline in 19 U.S.C § 2291(a)(5)(A) does not apply to the option created by 19 U.S.C § 2291(a)(5)(C) under which a claimant may be found to have satisfied the requirements of 19 U.S.C § 2291(a)(5) based on a training waiver. Under 19 U.S.C § 2291(a)(5), a waiver of the training requirement may be granted after the 16/8-week deadline has run, and if it is granted, the claimant to whom it is granted will at that point have satisfied the eligibility condition of that section and will be eligible for TRA benefits. Because of its erroneous interpretation according to which it concluded that it was too late for a training waiver to be granted, the department failed to make the necessary determination as to whether the claimant could be granted a training waiver under the standards stated in 19 U.S.C § 2291(c). Thus, the commission concludes that the Appeal Tribunal Decision, and the underlying determination, must be set aside, and this matter remanded to the department for further action. The specific further action which the department will be directed to take is described below in the Conclusion section of this decision and is further explained in the attached Memorandum Opinion. 
 

Department failure to inform claimant about the deadline -- Equitable estoppel -- As noted above, the ALJ evidently accepted the interpretation of the department that the 16/8-week deadline disqualified the claimant both with respect to the matter of enrollment in training and waiver of training, but he concluded that the doctrine of equitable estoppel should be invoked to prevent the department from applying this disqualification to the claimant. While the commission has concluded that the 16/8-week deadline does not apply to the matter of granting waivers of the training requirement, this does not completely moot this equitable estoppel question. This matter is going to be remanded for the department to make a determination on whether the claimant can be found to be entitled to a waiver of the training requirement under the standards described in the Trade Act. If on remand a determination is made that the claimant cannot be found to be entitled to a waiver of the training requirement under those standards, it could still be argued that she might have timely enrolled in a training program if the department had promptly advised her about the 16/8-week deadline, and that equitable estoppel should preclude the department from applying the disqualification to her. For this reason, the commission considers it advisable to address the ALJ's equitable estoppel theory in this decision.

Tecumseh was certified under the Trade Act on June 24, 2003. A department witness testified that when there is a Trade Act certification issued for a Wisconsin business, the department "runs a scan" and sends letters to all of the workers picked up on that "scan". However, she also explained that this would not necessarily pick up employees of that employer laid off in subsequent reductions in force. She testified that the department counted on employers to let them know about further layoffs, because there were 108 certified companies in Wisconsin and the department could not keep track of them all without the employers' help. Significantly, she acknowledged that no individual notice was provided to Tracy of her potential entitlement to, and application procedures for, Trade Act benefits.

The department published a notice in the West Bend News on August 21, 2003, which stated generally that workers of Tecumseh Products Company operations in Grafton who became separated from employment on or after May 28, 2002, were eligible to apply for adjustment assistance under the Trade Act, and which directed them to the UI Division. Significantly, though, the notice said nothing whatsoever about any deadlines. In any event, the claimant, who was still employed at that point, was not a subscriber to the West Bend News and did not see the notice.

The claimant did apply to the department for unemployment insurance benefits when she was separated from employment, but there is no indication in the record that she was given any information about her potential entitlement to Trade Act benefits at the time she applied for UI benefits.

There were apparently meetings of some kind held at Tecumseh around the time that the claimant was laid off, but there is no evidence in the record as to what information relevant to Trade Act application procedures was presented at these meetings. In addition, the claimant appears to have received confusing advice on whether and when she should attend these meetings.

Most disturbingly, the claimant testified that after a friend told her that she thought she was supposed to sign up for Trade Act benefits before her UI benefits ran out, when the claimant then called the department about this, a department representative told her that she had to wait until her UI benefits ran out, in case she got a job. It was only when the claimant spoke to another department representative, to whom the first one referred her, that she was told to apply for Trade Act benefits "right away". By this time, though, the 16/8-week deadline had long since run.

The Trade Act and regulations promulgated thereunder contain a number of provisions which specifically require cooperating state agencies, such as DWD, 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. Thus, 19 U.S.C § 2311(f), "Advising and interviewing adversely affected workers", requires each cooperating State agency to advise each worker who applies for unemployment insurance of the benefits available under the Trade Act and the procedures and deadlines for applying for such benefits. The Department of Labor's regulations provide, at 20 C.F.R. § 617.4, "Benefit information to workers", that state agencies shall provide full information to workers about the benefit allowances, training, and other employment services available under the Act and about the petition and application procedures, and the appropriate filing dates, for such allowances, training and services. 20 C.F.R. § 617.10(d), "Advising workers to apply for training", requires state agencies to advise each worker of the qualifying requirements for entitlement to TRA and other TAA benefits at the time the worker files an initial claim for state UI benefits.

Most significantly to this case, in the "Benefit information to workers" regulation, 20 C.F.R. § 617.4, there is a very specific and detailed set of requirements for how such information is to be provided, which includes a requirement of the use of individual written notice by mail to each worker partially or totally separated from employment with an adversely affected employer during the term of a certification:

§ 617.4 Benefit information to workers.
. . .
(d) Written and newspaper notices. (1) Written notices to workers. (i) Upon receipt of a certification issued by the Department of Labor, the State agency shall provide a written notice through the mail of the benefits available under subparts B through E of this part 617 to each worker covered by a certification issued under section 223 of the Act when the worker is partially or totally separated or as soon as possible after the certification is issued if such workers are already partially or totally separated from adversely affected employment.

(ii) The State agency will satisfy this requirement by obtaining from the firm, or other reliable source, the names and addresses of all workers who were partially or totally separated from adversely affected employment before the certification was received by the agency, and workers who are thereafter partially or totally separated within the certification period. The State agency shall mail a written notice to each such worker of the benefits available under the TAA Program.

It is clear, that the requirement for individual mailed notice applies to individuals who are laid off after a certification, and imposes an ongoing responsibility on the state agency to notify employees in successive waves of layoffs, as they occur. Thus, the regulation specifies that the state agency is responsible for satisfying this requirement by getting, from the adversely affected employer, "the names and addresses of all workers who were partially or totally separated from adversely affected employment before the certification was received by the agency, and workers who are thereafter partially or totally separated within the certification period", and mailing notices individually to such workers. Ibid.

It appears from the record in this case that the department did not meet the obligations imposed on it by the Trade Act and regulations thereunder to advise this claimant about the procedures for applying for benefits under the Trade Act, including the 16/8-week deadline.

The commission has carefully considered the question of whether the shortcomings in the department's compliance with these obligations could form the basis for a decision, on principles of equitable estoppel or any other theory, that the 16/8-week deadline should not be applied to this claimant, with the result that enrollment in training now could create potential eligibility for TRA benefits. It has concluded that no such decision is possible. This conclusion is effectively required by 20 C.F.R. § 617.50(d), which provides:

(d) Use of State law. In making determinations or redeterminations under this section, or in reviewing such determinations or redeterminations under § 617.51, a State agency shall apply the regulations in this part 617. As to matters committed by this part 617 to the applicable State law, a State agency, a hearing officer, or a State court shall apply the applicable State law and regulations thereunder, including procedural requirements of such State law or regulations, except so far as such State law or regulations are inconsistent with this part 617 or the purpose of this part 617: Provided, that, no provision of State law or regulations on good cause for waiver of any time limit, or for late filing of any claim, shall apply to any time limitation referred to or specified in this part 617, unless such State law or regulation is made applicable by a specific provision of this part 617.

(emphasis added). As DWD has noted in its petition for commission review in this case, 20 C.F.R. § 617.50(d) was adopted by the Department of Labor in direct response to a U.S. Court of Appeals decision allowing a waiver of a Trade Act timeline based on a failure by a state agency to properly provide information to a group of claimants which resulted in their loss of benefit eligibility. In International Union, UAW v. Dole, 911 F.2d 732 (6th Cir., 1990), a state agency had provided potential claimants with information regarding application for benefits under the Trade Act that resulted in their applying too late to satisfy a deadline under the Act.(5)  The state agency then denied benefits to the claimant because they had not met that deadline. The claimants filed a class action challenging the denial. The U.S. Court of Appeals decided that state law provisions allowing late claims to be accepted when there was "good cause" for them being late, could be applied. 20 C.F.R. § 617.50(d) was subsequently adopted by the Department of Labor with the express purpose of preventing a result such as that reached in International Union, UAW v. Dole. Thus, the Department of Labor concluded its comments on the adoption of 20 C.F.R. § 617.50(d) with the statement that it "places a clear obligation on the States to adhere to the time limitations in all of part 617".

20 C.F.R. § 617.50(d) broadly states that it is applicable to "state law". As such, it reaches state common law, the source of doctrines such as equitable estoppel, as well as any state statute.

Apart from the effect and purpose of 20 C.F.R. § 617.50(d), the commission also agrees with the observations made by DWD in its petition for commission review in this case, that application of equitable estoppel in this circumstance is not appropriate. It is well established that equitable estoppel is not applied against a governmental entity as readily as it may be against a private party, and that it should only be applied against a governmental entity "with utmost caution and restraint", Milas v. Labor Ass'n, 214 Wis. 2d 1, 14, 571 N.W.2d 656 (1997). The elements of estoppel are (1) action or nonaction, (2) on the part of one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by the other, either in action or non-action, and (4) which is to his detriment. DOR v. Moebius Printing Co., 89 Wis.2d 610, 634, 279 N.W.2d 213 (1979). Estoppel may be applied against the government when the elements of estoppel are clearly present and it would be unconscionable to allow the state to revise an earlier position. DOR v. Family Hosp., Inc., 105 Wis.2d 250, 254, 313 N.W.2d 828 (1982). Exercising "utmost caution and restraint" here, the commission is not persuaded that the requirements for the application of equitable estoppel are met. There was no affirmative representation by the department that the claimant did not need to apply for Trade Act benefits within a particular time; rather, there was the failure to provide information about the existence of a deadline. The claimant's reliance, such as it was, was simply on the absence of information, not on affirmative misinformation. The department would not be revising an earlier, contrary position in enforcing the deadline. As genuinely regrettable as are the consequences of the department's failure to provide claimant with the important information about the deadline involved here, the commission does not believe that it would be fair to describe the result of allowing the department to apply the law in this area, as "unconscionable".

The commission therefore must conclude, that 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.  
 

Conclusion -- The 16/8-week deadline in 19 U.S.C § 2291(a)(5)(A) does not apply to the option created by 19 U.S.C § 2291(a)(5)(C) under which a claimant may be found to have satisfied the requirements of 19 U.S.C § 2291(a)(5) based on the issuance of a training waiver. A claimant is potentially eligible for TRA payments under 19 U.S.C § 2291(a)(5) based on a determination granting a waiver of the training requirement, even if that waiver is granted after the 16/8-week deadline has run. The commission therefore finds, that the fact that there was no determination granting claimant a waiver of the training requirement within the 16/8-week deadline does not require the conclusion that she was disqualified from eligibility for TRA benefits.

Because of its erroneous interpretation that the 16/8-week deadline prevented the granting of a training waiver after that deadline had run, the department never issued a determination addressing the question of whether the claimant was entitled to a waiver of the training requirement under 19 U.S.C. § 2291(c). It is therefore necessary remand the matter to the department for it to issue such a determination.

If the claimant is determined to be entitled to a waiver of the training requirement under the applicable standards in 19 U.S.C. § 2291(c), this will meet the requirements of 19 U.S.C § 2291(a)(5) by satisfying the condition stated in subparagraph (C) of that provision, and the claimant will be eligible for TRA benefits as of that point, subject to being otherwise qualified.

The 16/8-week deadline may not be waived or disregarded based on equitable estoppel or any other state law-based theory. Thus, if the claimant is determined not to be entitled to a waiver of the training requirement, then the claimant's failure to have enrolled in training within the 16/8-week deadline will make her ineligible for TRA benefits, notwithstanding failure by the department to meet its legal obligation to inform the claimant of application procedures and timelines under the Trade Act, including the 16/8-week deadline.

Based on the foregoing, the commission now makes the following:

ORDER

The July 2, 2004 decision of the ALJ in this matter is set aside. The April 6, 2004 department determination in this matter is set aside.

This matter is remanded to the department for an investigation of and the issuance of a determination on the issue of whether the claimant is entitled to a waiver of the training requirement under the standards described in 19 U.S.C § 2291(c), "Waivers of training requirements", and relevant regulations thereunder. The 16/8-week deadline described in 19 U.S.C § 2291(a)(5)(A) is not applicable to and should not be considered in the making of this determination. If the claimant is determined to be entitled to a waiver of the training requirement under the standards described in 19 U.S.C § 2291(c), then the claimant will be eligible, as of the date of that determination, for Trade Readjustment Allowances under Petition TA-W-51912 applying to Tecumseh Products, if otherwise qualified.

Dated and mailed January 27, 2005
tracych . trr : 110 :  TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

As described above, the commission has concluded that the 16/8-week deadline in subparagraph (A) of 19 U.S.C § 2291(a)(5) does not apply to the option created by subparagraph (C) of that section under which a claimant may be found to have satisfied the requirements of the section based on the issuance of training waiver, and on that basis it has set aside the Appeal Tribunal decision and the underlying department determination in this matter and remanded the matter to the department for it to make a determination relative to the claimant's entitlement to a waiver of the training requirement under the standards described in 19 U.S.C § 2291(c), "Waivers of training requirements".

This outcome raises an issue as to whether the determination which the commission is ordering the department to now issue, should or should not be retroactive; that is, whether the department should determine

(1) whether the claimant would have been entitled to a waiver of the training requirement at the time that her application for benefits under the Trade Act was first considered by the department, with the potential result being that she would (if she should have been entitled to training waiver) be found eligible retroactively to weekly TRA benefits for weeks since that point,

or only

(2) whether the claimant would be entitled to a waiver of the training requirement now, with the potential result being only that she will (if she is now entitled to training waiver) be found eligible for weekly TRA benefits for weeks beginning now.

As is reflected by the language of the ORDER above, the commission has concluded that the determination to be made upon remand in this matter should be limited to the second question described above.

One reason for this conclusion is, that there does not appear to be any authority under the Trade Act for a cooperating state agency to make retroactive determinations that a claimant was entitled to a training waiver at some point in the past and thus should have been entitled to weekly TRA benefits at that point, when no determination was in fact ever originally made on that question.

Another reason for this conclusion is, that it appears most consistent with the relevant language of the Trade Act and regulations promulgated thereunder.

Condensing its relevant operative provisions, the "training waiver" condition in 19 U.S.C § 2291(a)(5)(C) effectively provides that:

[p]ayment of [TRA] shall be made to an adversely affected worker . . . who files an application for such allowance for any week of unemployment . . . if . . . [s]uch worker . . . has received a written statement under [19 U.S.C § 2291(c), "Waivers of training requirements"]

(emphasis added). It is first necessary to decide what the "written statement" should be deemed to consist of, in view of the department's actual practices.

It appears that the department follows a two-step practice concerning issuance of waivers of the training requirement. The first step involves the completion and signing by a department representative of a Form TAA-858-1 ("Application for Training and Additional Allowances While In Training"), with an indication thereon of whether a request for training is approved or denied and, if it is necessary to reach the question, whether the training requirement is waived and the reasons for such waiver (or for denial of such waiver). The second step involves the subsequent issuance by a different department representative of a formal determination, using the department's Form UCB-20 ("Determination"), which confirms the action noted on the TAA-858. It further appears that the department considers the first step action (completion of a TAA-858) not to have any real effect unless and until it has been confirmed at the second step by a determination.

The commission concludes that for purposes of applying 19 U.S.C § 2291(a)(5)(C), a claimant has "received a written statement" waiving the training only when they have been issued a formal department determination informing them that the training requirement is waived. The conclusion that it is the formal determination which is the operative document is suggested by 20 C.F.R. § 617.50, which provides, in subsection (a), that upon the filing of an initial application for TRA a state agency shall promptly "determine" the individual's entitlement to such TRA. It is also suggested by subsection (e) of that section, which provides that:

The State agency shall notify the individual in writing of any determination or redetermination as to entitlement to TAA. Each determination or redetermination shall inform the individual of the reason for the determination or redetermination and of the right to reconsideration or appeal in the same manner as determinations of entitlement to UI are subject to redetermination or appeal under the applicable State law.

These provisions clearly contemplate the use of the same procedures as those used for the issuance of appealable determinations under a state's UI laws.

For the foregoing reasons, the commission concludes that in a situation such as this, in which the department has never issued a formal determination reflecting its decision on whether a claimant is entitled under the standards of 20 U.S.C. § 2291(c) to a waiver of the training requirement, it would not be appropriate to order it to do so retroactively. The department is therefore being directed to determine only whether under those standards the claimant herein could at this time be granted a training waiver, and, if so, to determine that claimant to be eligible for TRA payments at this time, if otherwise qualified.

 

NOTE: The commission has not consulted with the ALJ concerning credibility of witnesses. The commission's decision to set aside the decision of the ALJ was not based on any differing assessment of credibility, but was instead based on a different view of the proper interpretation of the applicable law.
 


cc:
Gregory A. Frigo
Director, Bureau of Legal Affairs



Appealed to Circuit Court.  Reversed,  January 4, 2006.  Appealed to the Court of Appeals.   Circuit Court decision affirmed October 26, 2006, sub nom. DWD v. LIRC and Mary Robinson et al., 2006 WI App 241, 297 Wis. 2d 546, 725 N.W.2d 304 .

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Footnotes:

(1)( Back ) The impact on HCTC eligibility in this case was a result of the determination that the claimant was not entitled to TRA benefits; there are no separate HCTC eligibility issues. 

(2)( Back ) Commission review of a decision of an ALJ is not appellate in nature, but is instead a de novo decision-making process; any petition for review from any party brings the entire case before the commission.  Dane Co. Hockey Officials (LIRC, Feb. 22, 2000). While the commission will generally not exercise its review authority to address an issue not raised by a petition for review, this is a matter of policy, not authority. See, Polakowski v. Clearview Nursing Home (LIRC, 12/17/97)(WC decision). In this case, the fact that no party raised the issue is unsurprising; the claimant had prevailed before the ALJ and thus had no reason to appeal, and DWD would not be expected to raise an issue presenting another potential basis for ruling against it. In addition, the commission has expressly advised the parties that it intended to consider this issue and provided an opportunity for briefing. In these circumstances, and given the importance of the issue, the commission finds it appropriate to address it.    

(3)( Back ) The "date described in subparagraph (B)" is "the date on which the worker became totally separated, or partially separated, from the adversely affected employment". 

(4)( Back ) The commission notes that DOL TEGL No. 20-02 (March 3, 2003), similarly describes the 2002 amendments as requiring that "enrollment in training (or waiver) occur" by the 16/8-week deadline, and that claimants "enroll in training or be issued a waiver" within that time.  

(5)( Back ) The deadline in that case was the 210-day timeline described in 19 U.S.C 2293(b). This limit affects only eligibility to receive the "additional" TRA payments provided for in 19 U.S.C 2293(a).

 


uploaded 2005/01/31