Hulet v. Review Board of Indiana Employment Security Division

412 N.E.2d 289, 105 L.R.R.M. (BNA) 3377, 1980 Ind. App. LEXIS 1779
CourtIndiana Court of Appeals
DecidedNovember 17, 1980
DocketNo. 2-680A186
StatusPublished
Cited by4 cases

This text of 412 N.E.2d 289 (Hulet v. Review Board of Indiana Employment Security Division) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hulet v. Review Board of Indiana Employment Security Division, 412 N.E.2d 289, 105 L.R.R.M. (BNA) 3377, 1980 Ind. App. LEXIS 1779 (Ind. Ct. App. 1980).

Opinion

CHIPMAN, Judge.

Claimant William R. Hulet appeals from the denial of his application for a trade readjustment allowance available under the federal Trade Act of 1974. The Review Board of the Indiana Employment Security Division found Hulet ineligible for Trade Act benefits because he had not worked 26 of the 52 weeks preceding his separation from adversely affected employment.

We reverse.

The issue presented by this appeal involves the eligibility of an honorably discharged veteran for trade readjustment allowance benefits under the federal Trade Act of 1974, Pub.L. 93-618,19 U.S.C. § 2271 et seq. [“Trade Act”]. Generally, the Trade Act provides a variety of benefits to workers who lose their jobs due to the increased importation of various foreign products. These benefits, which include the payment of a “trade readjustment allowance,” 19 U.S.C. § 2291 [“TRA”], are available to adversely affected workers whom the Secretary of the U.S. Department of Labor certifies to have lost their jobs because of a decrease in production or sales caused by “increases of imports of articles like or directly competitive with articles produced by such workers’ firm.” 19 U.S.C. § 2272. Once the Secretary certifies a group of employees to be eligible for Trade Act benefits, an individual member of the group becomes eligible if his or her separation from employment occurred after the Secretary certified the group of workers to be employed in adversely affected employment and before expiration of the certification period. 19 U.S.C. § 2291(1)(A), (B). Additionally, the worker must have logged, in the fifty-two (52) week period preceding his separation from work, “at least 26 weeks of employment at wages of $30 or more per week in adversely affected employment with a single firm or subdivision of a firm . . . . ” 19 U.S.C. § 2291(1)(A). This appeal focuses on the 26 week eligibility requirement.

Claimant Hulet was employed by Chrysler Corporation from mid-1973 until August 20, 1976, when he enlisted in the U.S. Marine Corps. After three years of service he received an honorable discharge from active duty. In August of 1979, Hulet applied for reinstatement with Chrysler. He reported to Chrysler, but in accordance with the position of others with his seniority, was put on lay-off status due to the lack of available work. On October 15, 1979, claimant was called back to Chrysler and worked for six weeks before he was again laid-off on November 23. Effective November 1, 1978, the Secretary of Labor certified all employees of Chrysler Corporation’s Kokomo Transmission Plant as “adversely affected” workers within the meaning of 19 U.S.C. § 2272, and thus eligible for TRA benefits.

Hulet filed his application for TRA benefits with the Indiana Employment Security Division, the state agency which administers the federal assistance program. The Division’s Review Board ultimately denied Hulet’s application because, in the Board’s opinion, the claimant had only six weeks of employment in which he earned $30 or more prior to his separation from employment, instead of the 26 weeks required by section 2291(1)(A) of the Trade Act. Claimant now appeals from the Review Board’s decision, and we reverse.

Hulet concedes a limited reading of the Trade Act alone leads one to conclude he was not employed in “adversely affected” [291]*291industry for 26 of the 52 weeks preceding his layoff in November of 1979 and therefore did not meet the individual eligibility requirements for TRA benefits. However, Hulet argues the Board incorrectly determined his eligibility for TRA without appropriate reference to two other federal statutory provisions, specifically, the Veterans’ Reemployment Rights Act, Pub.L. 93-508, 38 U.S.C. § 2021 et seq., a part of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, and 38 U.S.C. § 2013, a section of the Vietnam Era Veterans’ Readjustment Assistance Act of 1972 dealing with eligibility requirements for veterans under federal manpower training programs. Hulet contends this related legislation establishes his right to Trade Act benefits. We turn first to the Veterans’ Reemployment Rights Act. [“VRRA”].

I. Veterans’ Reemployment Rights Act

The VRRA was enacted to protect veterans returning to their civilian jobs from being disadvantaged for having served in the armed forces.1 Schaller v. Board of Ed. of Elmwood Local School Dist., 449 F.Supp. 30 (D.C. Ohio 1978); Beckley v. Lipe-Rollway Corp., 448 F.Supp. 563 (D.C.N.Y.1978); Thomas v. Pacific Northwest Bell Tel. Co., 434 F.Supp. 741 (D.C.Or.1977). Section 2021 of the Act grants any person inducted into the armed forces the right, if still qualified, to be reinstated by his employer “to such position or to a position of like seniority, status, and pay . . . . ” 38 U.S.C. § 2021(aXB)(i). In section 2021(b)(2) Congress codified the so-called “escalator principle,”2 giving the returning veteran the right to be reemployed

“in such manner as to give such person such status in the person’s employment as the person would have enjoyed if such person had continued in such employment continuously from the time of such person’s entering the Armed Forces until the time of such person’s restoration to such employment, or reemployment.”

Section 2024 of the VRRA grants to persons who enlist the same reemployment rights as those inducted involuntarily.3

As the VRRA requires a veteran be reemployed with the “seniority” and “status” he would have held had he been continuously employed during the period of his military service, Hulet argues he in effect satisfied the Trade Act’s 26 week work requirement during the time he served in the U.S. Marine Corps. The argument certainly has its appeal. We acknowledge the VRRA is to be liberally construed in favor of the returning veteran. Coffey v. Republic Steel Corp., (1980) - U.S. ——, 100 S.Ct. 2100, 65 L.Ed.2d 53. Furthermore, to the extent a general policy determination is relevant, it is only logical to conclude that if Congress thought it desirable to guarantee employment rights for a returning veteran by requiring his employer to reinstate him [292]*292in a position and status comparable to that which he would have attained had employment been continuous, Congress would also desire to afford similar treatment for the veteran with regard to eligibility requirements for federal unemployment assistance programs such as the Trade Act of 1974. However, the VRRA quite clearly addresses the rights of a returning veteran vis-a-vis his employer.

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Bluebook (online)
412 N.E.2d 289, 105 L.R.R.M. (BNA) 3377, 1980 Ind. App. LEXIS 1779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hulet-v-review-board-of-indiana-employment-security-division-indctapp-1980.