Opinion
No. 81AP-848
Decided September 21, 1982.
Unemployment compensation — Trade Readjustment Act benefits — Section 2291, Title 19, U.S. Code, construed.
O.Jur 2d Unemployment Compensation § 34.
1. Under Section 2291, Title 19, U.S. Code, a worker who is adversely affected may receive a trade readjustment allowance to be retrained for other work if, in the fifty-two weeks immediately preceding total or partial separation from the employee's job, the employee worked at least twenty-six weeks at wages of $30 or more a week in the adversely affected employment.
2. Information to verify benefits under the Trade Readjustment Act will come from the employer.
APPEAL: Court of Appeals for Franklin County.
Messrs. Bell, White Ross and Ms. Doris M. Clanton, for appellant.
Mr. William J. Brown, attorney general, and Mr. Marquette D. Evans, for appellees Bureau of Employment Services and Bd. of Review.
This matter is before us on the appeal of appellant, Gloria A. Caldwell, from a final judgment of the Court of Common Pleas of Franklin County, which affirmed an order of the Board of Review of the Ohio Bureau of Employment Services denying appellant's application for Trade Readjustment Act ("TRA") benefits.
Appellant was employed by Ranco Industries until July 30, 1979, when she obtained a medical leave of absence. When she attempted to end her leave of absence on November 14, 1979, she was informed by Ranco that her former job was not available. She chose not to "bump" another worker, pursuant to her union's collective bargaining agreement with Ranco, and, instead, to apply for unemployment benefits.
Appellant raises the following three assignments of error:
"I. The board's decision of August 8, 1980, is based on findings of fact which are contrary to appellant's sworn, uncontroverted testimony and the decision is thus unlawful, unreasonable, and against the manifest weight of the evidence.
"II. The Board of Review erred in not requiring that appellant be given a fair hearing, which makes the decision unlawful, unreasonable, and against the manifest weight of the evidence.
"III. The trial court erred in affirming the decision of the Board of Review that appellant was separated from employment for lack of work, which decision was unlawful, unreasonable, and against the manifest weight of the evidence."
The first and third assignments of error are interrelated and are considered together. Under Section 2291, Title 19, U.S. Code and 29 C.F.R., Section 90.11 (c), a worker who is adversely affected may receive a trade readjustment allowance to be retrained for other work if, in the fifty-two weeks immediately preceding total or partial separation from the employee's job, the employee worked at least twenty-six weeks at wages of $30 or more a week in the adversely affected employment. "Separation" is defined to include layoff, which means a suspension from any status for lack of work initiated by the employer and expected to last more than seven consecutive days.
Even assuming appellant was separated because of lack of work initiated by Ranco, we conclude from the record that appellant has not proven that she worked twenty-six weeks during the year immediately prior to her separation. Ranco certified that appellant worked for twenty-one weeks. Appellant submitted payroll stubs for twenty-five weeks and testified at the hearing before a referee that she knew she had worked twenty-six weeks. Appellant argues that the employer's certification of her work record should not be used to controvert appellant's statements. We do not agree. 29 C.F.R., Section 91.8(c) contemplates that information to verify benefits under the TRA will come from an employer. Furthermore, under R.C. 4141.28(J), the administrator's record, which includes the employer's certification of the number of hours worked by an employee, is part of the record to be considered by the Board of Review. See, also, Blankenship v. Ranco, Inc. (June 23, 1981), No. 81AP-144, unreported. The first and third assignments of error are overruled.
Appellant argues in support of her second assignment of error that she was not provided a fair hearing because appellant was not represented by counsel and the referee did not ask certain pertinent questions. The hearing was held before a referee on August 6, 1980. The record before us includes a letter dated September 11, 1980, from a paralegal employed by the Legal Aid Society of Columbus, which requested that the letter be treated as a supplement to appellant's application to appeal her claim. The letter is a part of the file that was considered by the Board of Review and presents a clear and succinct legal argument in her behalf. Appellant was represented by the Legal Aid Society at least immediately after the referee's decision and prior to the Board of Review's decision which was rendered October 16, 1980. The Board of Review did not deny appellant a fair hearing, and the second assignment of error is overruled.
For the foregoing reasons, the judgment of the trial court is affirmed.
Judgment affirmed.
MCCORMAC and NORRIS, JJ., concur.