STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC SIXTH DIVISION DISTRICT COURT

BRUCE J. WRIGHT, SR.

V. No.99-81

DEPARTMENT OF LABOR & TRAINING, BOARD OF REVIEW,

DECISION CENERINI. J. Before the Court is an appeal from a decision of the Department of Labor & Training, Board of Review (Board). Jurisdiction in this Court is pursuant to Rhode Island General Laws § 42-35-15.

Facts/Travel Bruce J. Wright, Sr. (appellant), was employed by Imperial Home Decor Group (Imperial), at its plant in Ashaway, Rhode Island, for approximately twenty-two and a half years. His employment was finally terminated in February of 1999, upon the closing of Imperial's Ashaway plant. Prior to the closing of the plant, on or about April 21, 1997,1 Imperial requested that the U.S. Department of Labor declare the Ashaway plant's employees eligible for so called "trade adjustment assistance" pursuant to the Trade Act of 1974, 19 U.S.C. 2101 ~ & (Act). The application for assistance stated that, due to increased competition from foreign imports,

1 The appellant contends that the date was actually April 21, 1998, and that representatives of Imperial backdated its petition to the Department of Labor.

Imperial was scheduled to begin terminating employees in the third quarter of fiscal year 1998. Terminations are also known as "separations."

On June 22, 1998, the U.S. Department of Labor issued a decision holding that all employees of Imperial's plant in Ashaway who became "totally or partially separated from employment on or after April 21, 1997 ...are eligible to apply for adjustment assistance under Section 223 of the [Act]." The above date of April 21 is known as the "impact date" under the language of the Act.

Imperial began terminating employees at the Ashaway plant on July 3, 1998. On July 25, 1998, Imperial laid-off the appellant for a period of approximately two weeks. During that time, he collected unemployment compensation. The appellant returned to work on August 8, 1998. Then, on February 19, 1999, the appellant was permanently laid-off by Imperial.

On March 18, 1999, the Director of the Rhode Island Department of Labor & Training (State Director) determined that the appellant was eligible to receive trade adjustment assistance and a trade readjustment allowance (TRA). In making this determination, the Director adopted the U.S. Department of Labor's "impact date" of April 21, 1997. The amount of wages or unemployment benefits received by a TRA recipient on the impact date determines the amount of the recipient's TRA. Based on the Apri121, 1997 impact date, the State Director determined that the appellant's TRA benefit rate was $336 per week.

The appellant appealed the determination of the Director to a Referee of the Board, arguing that the Director erred in his adoption of April 21, 1997 as the impact date. The Referee affirmed the Director, stating that the appellant had not presented any credible evidence showing that the impact date adopted by the Director was incorrect. The appellant appealed the Referee's decision to the Board. In a decision dated June 30, 1999, the Board upheld the Referee's decision in its entirety. The appellant appealed the Board's decision to this Court on July 29, 1999. The appellant seeks to have this Court recalculate the "impact date" adopted by the State Director and the Board.

Standard of Review

The review of a decision of the Board by this Court is controlled by G.L. 1956 § 42-35-15(g), a section of Rhode Island's Administrative Procedures Act, which provides for review of a contested agency decision:

"(g) The court shall not substitute its judgment for that of the

agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

( 1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; ( 4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."

When reviewing a decision of an agency, the District Court may not substitute its judgment for that of the agency board on issues of fact, unless its findings are clearly erroneous. ~ Guarino v. Department of Social Welfare, 122 R.I. 583,410 A.2d 425 (1980); ~~~ v. Department of Employment and Training Board of Review, 637 A.2d 360, 366 (R.I. 1994) ( citing DePetri1Io v. Department of Employment Security , 623 A.2d 31, 34 (R.I. 1993); Whitelaw v. Board of Review, Department of Emplovment Security, 95 R.I. 154, 156, 185 A.2d 104,105 (1962». Findings of fact by an agency board "are, in the absence of fraud, conclusive upon this court if in the record there is any competent legal evidence from which those findings could properly be made." Mercantum Farm, 572 A.2d at 288 (citing Leviton, 120 R.I. at 287,387 A.2d at 1036-37). Legally competent evidence is "marked 'by the presence of'some' or 'any' evidence supporting the agency's findings."' State v .Rhode Island State Labor Relations Board. 694 A.2d 24, 28 (R.I. 1997) ( citing Environmental Scientific COrD. v. Durfee. 621 A.2d 200, 208 (R.I. 1993)).

The Trade Act of 1974, or the Act, was designed to provide procedures for the safeguarding of American industry and labor against injurious import competition. Sneaker Circus. Inc. v. Carter. 566 F.2d 396 (2nd Cir. 1977). Pursuant to section 221 of the Act, a group of workers, or an authorized representative of those workers, can petition the Department of Labor for "adjustment assistance," which may include a readjustment allowance (TRA). 19 U.S.C. § 2271. In order for an individual to qualify for adjustment assistance, the Secretary of Labor must determine that a significant amount of the workers at that individual's plant or company have become, or are threatened to become, totally or partially separated, that production at the plant has decreased absolutely, and that these conditions resulted from increases in our country's importing of the type of goods made at the worker's plant. 19 U.S.C § 2272(a).

Pursuant to section 223 of the Act, if the Secretary of Labor determines that a group of workers meets the criteria set forth above, the Secretary shall issue a certification of eligibility for those workers to apply for assistance. 19 U.S.C. § 2273(a). Section 223 further states that "[e]ach certification shall specify the date on which the. ..separation began or threatened to begin." 19 U.S.C. § 2273(a).

Finally, the Act permits states to act as agent of the United States for receiving applications and providing payments to displaced workers, for providing services to those

workers, and for making certifications concerning eligibility for training programs, pursuant to section 241 (c)(2) of the Act. U.S.C. § 2311(a). Rhode Island, through the Department of Labor & Training, acts as an agent for the United States in carrying out the above listed responsibilities.

The appellant argues that the State Director, and ultimately the Board, erred in adopting the impact date set forth by the Secretary of Labor. The appellant contends that the Act confers upon the Director a responsibility to adjust the Secretary of Labor's choice of an impact date, if such date is incorrect. This responsibility, the appellant asserts, is implicit in the State Director's ability pursuant to section 261(a)(3) of the Act, as an agent of the United States, to make "certifications." ~ 19 U.S.C. § 2311(a)(3).

As discussed above, section 261(a) of the Act allaws states to act as agents of the United States in carrying out certain functions of the Act. One of those functions is that the state will make any certifications pursuant to section 241 (c)(2) of the Act. Section 241 (c)(2) sets forth the procedure for the Secretary of Labor or a state agency to issue a certification for a worker to participate in a training program. 19 U.S.C. § 2291 (c)(2).

The appellant, however, attempts to read the language of261(a) more broadly by arguing that the "certifications" referred to in section 261(a)(3) are "certifications of eligibility to apply for [assistance] issued under section 223 of the Act." Appellant's Brief at page 6 (quoting 20 C.F.R. §617.3G)(1». This reading of section 261(a) ignores the fact that the section clearly provides for "certifications required under section [241(c)(2) of the Act.]" 19 U.S.C. §2311(a)(3). "It is a fundamental principle of statutory construction in this state that when a statute's meaning is plain, clear, and unambiguous, no interpretation is required and the court must construe the statute pursuant to its plain and ordinary meaning." Delicato v. Board of Review. Dept. of Employment and Training. 643 A.2d 216 (R.I. 1994). To follow the appellant's choice of interpreting 261(a)(3) would be to construe the section without regard to its plain and ordinary meaning. Section 261(a)(3) does not grant the state, as agent, the power to make, or adjust, determinations pursuant to section 223 (which include impact date determinations).

Furthermore, section 345(a) of the Act sets forth the process by which a determination under section 223 of the Act (which includes the impact date determination) may be reviewed. The section states that a worker may appeal a section 223 determination to the United States Court of International Trade. 19 U.S.C. § 2395(a). The section, titled "Judicial Review," makes no mention of a state agency's determination of an impact date, or of a state agency's review of the Secretary of Labor's determination. Section 345(a), in setting forth the review process of section 223 determinations, prevents the Secretary of Labor's determinations from being reviewed by a state agency. The aggrieved worker is given a specific time -60 days, and a specific venue -the U .S. Court of International Trade, to appeal the determination. No other process of reviewing such a determination is set forth in the Act. Thus, any review of the Secretary of Labor's impact date determination by the State Director would have been extra jurisdictional. Likewise, this Court has no jurisdiction to review the impact date.

The decision of the Board was not affected by error of law, nor clearly erroneous in view of the reliable, probative, and substantial evidence of record. Accordingly, the decision of the Board is affirmed.