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lV CIRCUIT CGURT URDER/OPINION

Stephine Gwin, Circuit Court Clerk

I I

Appeal Docket No:

D

D

N

Please enter and distribute along with Board of Review Decisions/Orders and Referee Decision/Orders .

Board Member and assigned attorney to case (Individual Copies)

[] Single copy/routing slip

Other :

Pot ential Digest Case

Section of the Act

Date: __ ··_·_·· __ · _-·------~1+~~~~·~, 2007

R. Douglas Daligga , Director MES - Board of Review

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Jr,•: u_.1) /~)\J .

Court of Appeals, State of Michigan

ORDER

State of Michigan v Alexandria Ishmael

Docket No. 276006

LC No. 06-616961-AE

Brian K. Zahra Presiding Judge

Helene N. White

Kurtis T. Wilder Judges

The Court orders that the application for leave to appeal is GRANTED, limited to the issues raised in the application. MCR 7 .205(D)( 4). The time for taking further steps in this appeal runs from the date ofthe Clerk's certification ofthis order. MCR 7.205(D)(3).

On the Court's own motion, this appeal is CONSOLIDATED -A'riLTI"'o..LJocket No. 276869 to advance the efficient administration of the appellate process.

A true copy entered and certified by Sandra Schultz Mengel, Chief Clerk, on

JUll 7 l0.07 Date

,,.,·--.. --,

,Q) CIRCUIT COURT ORDER/OPINION Stephine Gwin, Circuit Court CLERK

Af:peal Docket No:

D

D

IY\ Nl

Please enter and distribute along with Board of Review Decisions/Orders and Referee Decision/Orders.

Board Member and assigned attorney to case

other:

Potential Digest Case

____ ) Nr _ _;___ Section of the Act

Date : ____ --'=:J<.......J]c.......L!3=--_ , 2007

PC REP __ _

R. Douglas Daligga, Director MES - Board of Review

Prepared by Stephine Gwin

STATE OF MICHIGAN IN THE 3RD CIRCUIT COURT FOR THE COUNTY OF YVAYNE

STAI'E OF MICHIGAN, DEP..A.RTMENT OF LABOR & ECONOMIC GROWTH, UNEMPLOYMENT INSURANCE AGENCY/ TRA SPECIAL PROGRAMS UNIT,

Agency/ Appellant,

v

06-616961 AE 6/14/~~006 ..:DG:GERSHWIN A. DRAIN

STATE OF MICHIGAN vs 1111 U 1111111 1111111111111

ISHMAEL ALEXANDRIA ALEXANDRIA ISHMAEL,

. Claimant/ Appellee.

----------------------------~/

ORDER AFFIRMING THEMES BOARD OF REVIEW

At a session of said Court held on

JAN 162D07 PRESENT: HON. GERSHWlN A. DRAIN

CIRCUIT JUDGE

The Court having heard oral arguments in this appeal from a decision of the Michigan

Employment Security Board of Review, for the reasons stated on the record,

. IT IS ORDERED that the decision of the Michigan Employment Security Board of.

Review is affirmed.

This Order resolves all pending claims and closes this case.

A TRUE COPY CATHY M. GARRETT WAYNE COUNTY CLERK

BY~12·~ER}

GERSHWIN A. DRAJN

CIRCUIT COURT JUDGE

STATE OF MICHIGAN EMPLOYivfENT SECURJTY BOARD OF REVIEW

In the Matter of the Claim of

ALEXANDRJA ISfiMAEL, Claimant

TRA/SPU UNIT, Employer

Appeal Docket No.: TRA-2005-00070-182435 Social Security No.: ••••

DECISION ON REHEARING

This e:ase originally came before the Board of Review as a result of the Unemployment Insurance Agency's August 12, 2005 appeal from an August 1, 2005 Administrative Law Judge [Referee] decision. The Referee's August 1, 2005 decision reversed a June 7, 2005 Unemployment Insurance Agency [Agency] redetermination and found the claimant's application for a Trade Adjustment Allowance [TRA] waiver should be considered timely, that the claimant be given a TRA training waiver and be allowed to receive TRA benefits. Given the importance and recurring nature of this issue, the Board determined that this matter should be addressed as a full board decision. After reviewing the record, the Board issued a May 18, 2006 decision that affirmed the Referee. Upon further review, and pursuant to our own motion we find our May 18, 2006 decision should be set aside and a new decision issued on rehearing.

The claimant, Alexandria Ishmael, was employed by the Lear Corporation at its Auburn Hills facility. On June 1, 2004, the claimant went on a medical leave of absence. Later that month, while the claimant was ·still on leave, the Lear Corporation announced the closing of the Auburn Hills facility. The claimant was ultimately laid off on October 31, 2004. Earlier, on June 8, 2004, the United States Department of Labor, pursuant to the Trade Act of 2002, had certified that the closing and the resulting layoffs were the result of foreign competition. As a result the laid off employees would be eligible for TRA benefits. Subsequently the Unemployment Insurance Agency [Agency] staff conducted a seminar where the application procedures for unemployment and TRA benefits were explained.

During the summer of 2004, the claimant made repeated attempts to apply for TRA benefits. Each time she was told by a Michigan Works! 1 employee that she could not apply for TRA benefits until she was cleared for work by her doctor. The claimant was released by her physician on April 5, 2005. Shortly thereafter, on April 13, 2005, a Michigan Works! employee completed a TRA training waiver for the claimant. On May 23, 2005, the Agency issued a determination denying TRA benefits. The basis for the denial was that the claimant failed to satisfy TRA' s "8/16 requirement" (hereinafter the "8/16" Rule")?

1 The Michigan Works system is a collection of individual nonprofit organizations subdivided into Michigan Works! Agencies (MW As) which are further subdivided into Micrugan Works! Service Centers (MWSCs) throughout the State ofMichigan.

2 The 8116 Rule provides that in order to be eligible for TRA benefits, a person must enroll in training by either the later of the last day of the grh week after the week the Secretary issues a Trade Act certification or the last day of the 16'h week after the worker's most recent total separation. 19 U.S.C. § 229l(a)(5)(A) .

TRA-2005-00070-182435 Page2

The claimant protested the May 23, 2005 determination. The. claimant explained she had attempted to apply earlier but was specifically informed that she could not as she had yet to be released by her physician. In response, the Agency issued a June 7, 2005 redetermination which affirmed the May 23, 2005 determination. The claimant then appealed to the Referee. Pursuant to her timely appeal, a hearing was noticed for July 20, 2005. Based on the claimant's unrebutted testimony and the comments of Samuel Johnson, the Manager of TRA Special Programs, the Refere~ reversed the June 7, 2005 redetermination and found the claimant's application for a TRA waiver should be considered timely, that the claimant be given a TRA training waiver and be allowed to receive TRA benefits if otherwise eligible and qualified.3 Although we affirm the Referee's decision, we do so for a different reason; namely because we find the 8/16 Rule does not apply to TRA training waivers.

I. Background on the Trade Act.

Congress enacted the Trade Act of 1974, as amended, 19 U.S.C. § 2101 et seq., to provide employment training and benefits to individuals who had exhausted state unemployment insurance benefits. TRA benefits are limited to those individuals who have lost their jobs due to foreign competition. 19 U.S.C. § 2291. There are two types ofTRA benefits: "basic TRA" and "additional TRA." The former provides 26 weeks of benefits, while the latter provides up to 52 additional weeks of benefits if the worker participates in full time training. The benefits at issue here are "basic TRA." Notably, Trade Act determinations are subject to review in the "same manner" as provided in the state's unemployment insurance determination process. 19 U.S.C. § 2311{d); 20 CFR § 617.50 et seq; 20 CFR § 61 7. 16.

TRA benefits will be provided if: (1) the United States Secretary of Labor "certifies" that the job losses are the result of foreign competition (19 U.S.C. § 2271; 2272); imd if so, (2) the worker is otherwise eligible for TRA benefits. As to the first prong, the layoff in this case was "certified" on March 15, 2003. As to the second prong, the Trade Act permits the Secretary of Labor to delegate the task of making individual eligibility determinations to state agencies administering the unemployment insurance and employment services programs. UAW v Brock, 477 U.S. 274, 277; 106 S Ct 2523; 91 LEd 2d 228 (1986); see 19 U.S.C. § 2311 and 20 CFR 617.50(a). Because the State of Michigan has entered into a cooperating state agreement, it acts as an "agent of the United States." 19 U.S.C. § 2311(a). See "Agency's Claim of Appeal," p. 2, ~ 2. A state which acts as an agent for the United States is required to provide written benefit information to workers including an explanation of how to apply for benefits and services, whom to call for additional information, and when and where workers should apply for benefits. 20 CFR 617 .4.

At iss1:1e in this case, and in many other cases pending before the Board of Review, is the provision concerning training waivers under section 114 of the Trade Act, 19 U.S.C. § 2291, amended in 2002 by PL 107-210, 2002 HR. 3009. These amendments created what is commonly referred to as the 8/16 Rule. See supra note 2. As noted above, the UIA relied upon the 8/16

The lower authority decision in the instant matter relied upon a principle similar to equitable estoppel to support its decision. For a comprehensive analysis upholding the application of equitable estopp.el to similar Trade Act cases corning from the Board of Review, see UJA v Dykstra, Kent County Case No. 05-11956-AE (April12, 2006); BOR No. 2005-181936. Again, while we affirm. the ALJ' s result in the instant decision, we do so on different grounds.

TRJ\-2005-00070-182435 Page 3

Rule in denying the claimant TM benefits as she received a training waiver after the expiration of the 8/16 Rule deadline:

II. Administration of the Trade Act in Michigan.

Historically, a component of the Michigan Employment Security Commission was responsible for providing services mandated by the Trade Act. In 1998, Congress enacted the Workforce Investment Act (WIA), 29 U.S.C. § 2801 et seq. The WIA requires each state to establish a "one-stop delivery system" for the administration and provision of a host of federal programs and services. 29 U.S.C. § 2841(b)(l). The Trade Act is expressly included within the "one-stop delivery system" mandate. 29 U.S.C. § 2841(a)(l)(B)(ii) & (viii). Notably, Congress declared that a "one-stop operator" may be a government agency, a private non-profit corporation, or even a private for-profit corporation. 29 U.S.C. § 2841 ( d)(2)(B).

Following the passage of the WIA, the Michigan Department of Career Development (MDCD) was created and became the state agency responsible for complying with the WIA. See Executive Orders 1999-1; 2002-5, ~~ I-III. Following the creation of the MDCD, duties associated with the administration of aspects of the federal Trade Act were delegated to the Michigan Works! System. For example, in November 2001 the MDCD and the Michigan Works! System adopted the "governance and minimum standards" to be applied to the delegated services. Michigan Department of Career Development, Michigan Works! System, Governance and Minimum Standards, November 7, 2001. Significantly, this governing document requires the following·TRA services to be provided at Michigan Works! Service Centers [MWSC]: (1) Information on and Referral to Program; (2) Intake/Registration; (3) Eligibility Determination; and (4) Emollment in Program and Referral to Program Activity. Id. at 15.

The Michigan Works! System, through. its MWAs and MWSCs, is responsible for issuing training waivers under the Trade Act. Id. at iii. In fact, claimants can only file an application for TM benefits or obtain training waivers at an MWSC. See UIA Fact Sheet, #102, December 2002; see also "If Imports Cost You Your Job, Trade Adjustment Assistance," UIA, pp 2-3 (January 27, 2005). Notwithstanding the Michigan Works! System's involvement in Trade Act applications, eligibility determinations and the issuance of training waivers, the Agency retains control over other aspects of the Trade Act.

III. Analysis

The issue we must consider is whether the 8/16 Rule, as prescribed in 19 U.S. C.§ 2291(a)(5)(A), applies to training waivers issued pursuant to § 229l(a)(5)(C) and 229l(c). To answer that question, we must first apply the rules of statutory construction and interpretation. Then we must determine what effect, if any, to give a Training and Guidance Letter (TEGL) issued by the Department of Labor. We begin by focusing on the relevant text of 19 U.S.C. § 2291, which provides:

(a) Trade readjustment allowance conditions

Payment of a trade readjustment allowance shall be made to an adversely affected worker covered by a certification under subpart A of this part who files an application for such allowance for any week of unemployment which begins more

TRA -2005-00070-1824 3 5 Page4

than 60 days after the date on which the petition that resulted in such certification was filed under section 2271 of this title, if the following conditions are met:

* * * (5) Such worker--

(A)(i) is enrolled in a training program approved by the Secretary under section 2296(a) of this title, 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) of this section,

(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 2296(a) of this title, or

(C) has received a written statement under subsection (c)(l) of this section after the date described in subparagraph (B).

19 U.S.C. § 229l(a) (emphasis added).

* * * Here, the Agency invoked the 8/16 Rule - contained in § 2291 (a)(5)(A)(ii)(I)-(II), above - in finding that the training waiver issued to the claimant under § 2291 (c) was untimely.

A. Whether rules of statutory construction and interpretation require application of the 8/16 Rule to the issuance of training waivers.

The Trade Act is a remedial statute and is therefore subject to a liberal interpretation in favor of the class of persons it was designed to protect. Former Employees oj Hewlett Packard Co v

T~-2005-00070-182435

Page 5

United States, 17 C.I.T. 31, 34; 1993 WL 12862 (1993);4 Claim of Walter, 103 A.D. 2d 265, 266 (N.Y.A.D.1984). Through the Trade Act, "Congress intended to liberalize the availability of adjustment assistance for displaced workers." Former Employees of Parallel Petroleum Corp v US Sec y of Labor, 731 F Supp 524, 527 (1990). The U.S. Department of Labor agrees that the Trade Act and accompanying regulations "shall be construed liberally so as to carry out the purposes of the Act." 20 CPR§ 617.52.

Against this backdrop requiring liberal interpretation, we must also look "frrst to the plain language ofthe statute." The Ltd., Inc. v Comm'r, 286 F3d 324, 332 (6th Cir, 2002). See also Piper v Pettibone Corp., 450 Mich 565, 571 (1995). Similarly, state and federal courts are in accord with the proposition that statutes must be interpreted "as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions ofthe same statute inconsistent, meaningless, or superfluous." Mitchell v Chapman, 343 F3d 811, 825 (6th Cir, 2003). See also Tiger Stadium Fan Club v Governor, 217 Mich App 439, 457-58 (1996). We conclude that, after applying the above rules of statutory construction to · § 2291 ( a)(5)(A)-(C), the 8/16 Rule does not apply to training waivers under T~. We make our finding for the following reasons.

Section § 2291(a)(5) creates three separate and distinct means through which a worker may demonstrate eligibility for TRA benefits: (1) emollment in training; (2) recent completion of training or (3) receipt of a training waiver. See supra, 19 U.S. C.§ 2291(a)(5)(A)-(C). Congress used the disjunctive "or" in separating the three subsections. "[I]t is a basic principle of statutory construction that terms joined by the disjunctive 'or' must have different meanings because otherwise the statute or provision would be redundant." United States v. Hill, 79 F.3d 1477, 1482-83 (6th Cir.1996). See also Beauregard-Bezou v Pierce, 194 Mich App 388, 393-94 (1992).

More ~pecifically, the plain language of§ 2291(a)(5)(A) reveals that this subsection applies only where a worker is "enrolled in a training program." It is in this subsection alone where Congress requires the 8/16 Rule. The plain language and structure of the statute manifestly limits applicability of the 8/16 Rule to the "enrollment period" for training programs. See 19 U.S. C. § 2291(a)(5)(A)(ii). There is no indication that Congress intended the 8/16 Rule to apply to training waivers. 5

Similarly,§ 2291(a)(5)(B) applies only to those situations where a worker has already completed training in accordance with the Trade Act. For this class of persons, application of the 8/16 Rule would not only be illogical - for they have already completed training - but is contrary to the disjunctive construction of§ 2291(a)(5)(A)-(C).

The third and final component of § 2291(a)(5) applies to those workers who receive training waivers at some time "after the date described in subparagraph (B)." 19 U.S.C. § 2291(a)(5)(C) (emphasis added). This subsection unambiguously reveals that Congress did, in fact, establish a deadline to receive training waivers. In prescribing that deadline, Congress could have applied

4 The United States Court of International Trade (C.I.T) has exclusive jurisdiction over any civil action seeking review over a Trade Act decision issued by The Secretary ofLabor. 28 U.S.C. § l58 l(d). 5 Had Congress intended what the Agency asserts, that the 8/16 Rule applies to the training waivers of § 2291(a)(5)(C), it easily could have done so by drafting subsection (C) in a manner which expressly incorporated the 8/16 Rule.

TRA-2005-00070-182435 Page6

the same 8116 Rule it used under § 2291 ( a)(5)(A)(ii). Congress chose not to apply that deadline and, instead, chose to use the time period "after the date on which ·the worker became totally separated .... " 19 U.S.C. § 2291(a)(5)(B). We are left to conclude that our construction is not only c.onsistent with the words used by the Congress, but also furthers the remedial purposes of the Trade Act

Application of the 8/16 Rule training enrollment deadlines to a person who has obtained a training waiver is not only illogical, but contrary to the disjunctive construction of§ 229l(a)(5)(A)­(C). In this case, claimant received a training waiver because she possesses "marketable skills" as defined by Congress in § 2291(c)(1)(B). See Exh. 1 (Training Waiver). We deem it significant that claimant's "marketable skills" training waiver is not contested. It appears to us, therefore, that it is logically inconsistent- and contrary to the remedial nature of the Trade Act­to bind a worker to the 8/16 Rule training enrollment deadlines where that person is deemed to be waived from all training requirements.

The canon of statutory construction, expression unius est exclusion alterius, provides that where a statute encompasses particular forms of conduct, specific persons or things, or the manner and operation of the items designated in the statute, an inference is established that the omission of additional terms excludes the construction of additional items within the regulated class. See Dep't of Treasury v Psychological Resources, Inc., 147 Mich App 140, 144 (1985); United States v Vonn, 535 US 55, 65; 122 S Ct 1043; 152 LEd 2d 90 (2002). Here, § 2291(a)(5)(A)(ii)(I)-(II) establishes the 8/16 Rule ·within a part of the statute that, by its plain language, applies only to the training "enrollment period." In contrast, Congress established no time limitation for the class of persons falling within§ 2291(a)(5)(B) (persons who have already received training) and provided an alternate time deadline for those persons who receive training waivers under § 2291 ( a)(5)(C). Therefore application of the canon, expression unius est exclusion alterius, prohibits any inference that the 8116 Rule enrollment period deadlines may be read or construed into§ 2291(a)(5)(B) and (C).

We next observe that the Trade Act must be construed as a whole such that no provision is rendered inconsistent or meaningless. Tiger Stadium, supra. In this vein, we note that an extension of the 8/16 Rule to training waivers would do violence to other provisions of the Trade Act. For example, Congress declared that training waivers may be issued as follows:

(c) Waivers of training requirements

(1) Issuance ofwaivers The Secretary may issue a written statement to an adversely affected wo.rker waiving the requirement to be enrolled in training described in subsection (a)(S)(A) of this section if the Secretary determines that it is not feasible or appropriate for the worker, because of 1 or more of the following reasons:

(A) Recall

* * * (B) Marketable skills

TRJ\-2005-00070-182435 Page 7.

The worker possesses marketable skills for suitable employment (as determined pursuant to an assessment of the worker, which may include the profiling system under section 303U) ofthe Social Security Act (42 U.S.C. 503U)), carried out in accordance with guidelines issued by the Secretary) and there is a reasonable expectation of employment at equivalent wages in the foreseeable future.

(C) Retirement * * *

(D) Health

* * * (E) Emollment unavailable

* * * (F) Training not available

* * * (2) Duration of waivers

(A) In general

A waiver issued under paragraph (1) shall be effective for not more than 6 months after the date on which the waiver is issued, unless the Secretary determines otherwise.

(B) Revocation

The Secretary shall revoke a waiver issued under paragraph (1) if the Secretary determines that the basis of a waiver is no longer applicable to the worker and shall notify the worker in writing of the revocation.

19 U.S.C. § 2291(c) (emphasis added).

As noted above, the plain language of§ 2291 ( c )(1) reveals that a properly issued waiver exempts a worker from§ 2291(a)(5)(A) compliance. Yet, the Agency argues that the 8/16 Rule applies to training waivers. The Agency's interpretation would make a worker comply with a statutory provision to which Congress has expressly exempted compliance. We therefore fmd that the Agency's interpretation would render this portion of the statute meaningless. See Mitchell, supra; Tiger Stadium Fan Club, supra. Absent authoritative direction, we are unwilling to read a timelmess requirement into § 229l(a)(5)(C) that does not currently exist.

We further find that the Agency's interpretation would render a significant part of§ 2291(a)(5)(C) meaningless. There, Congress declared that eligibility for TAA benefits is established if a worker receives a "written statement under subsection (c)(1) of this section after the date described in subparagraph B." (Emphasis added.) Thus, Congress prescribed a timeline within which a worker must obtain a training waiver. The Agency, however, argues that Congress' statement is not correct and seeks to incorporate by reference the training enrollment requirements of the 8/16 Rule into this subsection. Because the Agency's proposal 1s inconsistent with the language of the statute, we decline to follow its recommendation.

TRA-2005-00070-182435 Page 8

Furthermore, while the instant case involves a training waiver issued by reason of "marketable skills,'; waivers may be issued for five other reasons, § 2291(c)(1)(A)-(F). In addition to the above, we observe that an extension of the 8/16 Rule to the other categories would create untenable and unanticipated results. For example, a training waiver may be issued if a worker is within 2 years of being entitled to social security retirement benefits. § 2291(c)(1)(C). Because Congress has prescribed a two-year window for a training waiver for reasons of anticipated retirement, application of the 8116 Rule to this class of persons would, again, run afoul of the words written, and agreed upon, by Congress.

Finally, and notably, we observe that several circuit courts of this state agree with our conclusion that the 8/16 Rule does not apply to waivers. See, e.g., State of Michigan et al v Varga, Jackson County Circuit Court, No. 05-003992-AE (March 20, 2006) (holding that "because claimant received a waiver, he met the eligibility requirement of§ 2291 ( a)(5)(C), which does not contain the deadlines in § 2291 ( a)(5)(A). "); State of Michigan et al v Dishman, St. Clair County Circuit Court, No. 05-002295-AE (February 24, 2006) ("the intent of Congress is clear .. . . The waiver requirement in subsection (C) makes no reference to the deadlines applicable to the discrete condition described in subsection (A).").

B. Whether the Training and Employment Guidance Letter has the Power to Persuade.

The United States Department of Labor has not promulgated any rules concerning the 2002 amendments to the Trade Act. The federal agency has, however, issued a "Training and Employment Guidance Letter (TEGL) No. 11-02, Change 1," with an effective date of November 6, 2003. The Agency relies on this TEGL to argue that the 8/16 Rule applies to training waivers. 6 The United States Supreme Court has considered similar agency opinion letters and has concluded that such "interpretations contained in policy statements, agency manuals, and enforcement guidelines . .. lack the force of law .... " Christensen et al v Harris County et al., 529 U.S. 576, 586-87; 120 S. Ct. 1655; 146 L. Ed. 2d 621 (2000). Instead, such pronouncements are entitled to respect "only to the extent that those interpretations have the 'power to persuade."' Id. See also, Gonzalez v Oregon, 126 §U.S. 904, 922; 126 S. Ct. 904; 163 L. Ed. 2d 748 (2006). Having fully considered the TEGL at issue, we are not persuaded by the TEGL;s conclusion that the 8/16 Rule applies to training waivers.

Most importantly, the TEGL summarily concludes that training waivers must be issued within the confines of the 8/16 Rule. However, there is no substantive analysis as to how this conclusion was reached and why it is an accurate reflection of Congressional intent. Our assessment is reinforced by the fact that Michigan Circuit Court Judge Daniel Kelly in Dishman, supra, also concluded that the subject TEGL is not entitled to deference as its summary conclusion that the 8/16 Rule applies to training waivers is contrary to the plain language of the Trade Act. Dishman, slip op. at 4. This element of the TEGL, therefore, lacks the requisite "power to persuade."

6 The subject TEGL touches upon.many points. In this decision, all references to the TEGL should be construed as applying to only those aspects of the TEGL which purportedly extend the 8116 Rule to training waivers. In all other respects, the content of the TEGL is not considered by the Board.

TRA-2005-00070-182435 Page 9

Additionally, we note that the TEGL is directed to "all state workforce agencies[,] all state workforce liaisons [and] all one-stop center system leads." In other words, innocent third parties -such as the instant claimant- were not given notice of the contents ofthis TEGL.

For these reasons, we find the TEGL lacks the power to persuade that the 8/16 Rule applies to . . . 7

trammg wa1vers.

IV. Conclusion

In its ·claim of appeal, ·the Agency contends that there is no agency relationship between employees of Michigan Works! Agencies performing Trade Act duties and responsibilities and the State of Michigan and, therefore, the decision of the administrative law judge should be reversed. Ibis argument is the product of the lower authority decision concluding that "the Michigan Works Agency is charged with the responsibility of informing displaced workers of their right and responsibilities under the Trade Act of 1974." See Lower Authority Decision of ALJ Ashford, at 2. The Agency maintains that "[t]he ALJ cannot rely on a principle of equity to pay benefits contrary to law." See Claim of Appeal, at 2. In light of our holding that the 8/16 Rule does not apply to the issuance of training waivers, we find it unnecessary to reach this agency issue. If, however, the Agency seeks a final administrative decision on the agency issue, the Agency is directed to file an application for rehearing on the issue in accordance with the Board's administrative rules. 8

In conclusion, we find that the 8/16 Rule relied upon the UIA in denying claimant's TRA benefits does not apply to the training waiver issued in this case. In reaching this conclusion, we are mindful that the Trade Act is a remedial statUte subject to a liberal construction. Accordingly, we do not accept the proposition that the 8/16 Rule deadline as embodied within a disjunctive statute, specifically § 2291(a)(5)(A), applies to waivers granted under § 2291(a)(5)(C). Were we to agree with the Agency that the 8/16 Rule applies to training waivers, not only would the remedial nature of the Trade Act be compromised, but two distinct portions of the Trade Act would be rendered nugatory. Additionally, for the reasons cited above, we find the subject TEGL lacks the "power to persuade" that Congress intended the 8/16 Rule to apply to training waivers. In short, we conclude that if Congress had intended to apply the 8/16 Rule to training waivers, it would have specifically done so.

7 While we recognize our limited jurisdiction, we observe that equitable relief may be appropriate in situations where one acts reasonably to protect her rights but, through no fault of her own, is given erroneous information which proves fatal to her claim. In this context, we note that equitable tolling has been applied to extend various statutory and administrative deadlines. See, e.g., Bryant v Oakpointe Villa, 471 Mich 411, 432; 684 NW2d 864 (2004); Ward v Rooney-Gandy, 265 Mich App 51; 696 NW2d 64 (2005), rev'd Wardv Rooney-Gandy, 474 Mich 917; 705 NW2d 686 (November 9, 2005). Specifically, the Sixth Circuit Court of Appeals has held that "(t)he most common situation calling for equitable tolling involves some affirmative representation or action by the employer that causes an employee to miss a filing deadline." Andrews v Orr, 851 F2d 146, 150-52 (6th Cir, 1988).

8 Should the Agency choose to seek rehearing on the agency issue, the Board of Review suggests that the application consider and analyze the following lines of authority: Persinger v Holst, 248 Mich App 499, 504 (2002); Meretta v Peach, 195 Mich App 695, 698-99 (1992); Anschutz v Liquor Control Comm 'n, 343 Mich 630, 636-37 (1955); Wiersma v 1\tfichigan Bell, 156 Mich App 176, 184 (1986) ." Semaan v Liquor Control Comm'n, 425 Mich 28, 37 (1986); 3 Restatement Agency, 2d, § 43(2), p. 133; 1 Restatement Agency, 2d, § 12, p. 57.

TRA-2005-00070-182435 Page 10

For the reasons stated above, the Referee's August 1, 2005 decision is affirmed. The claimant's applic~tion for waiver is timely. The claimant should be paid TRA benefits if otherwise eligible and qualified.

MAILED AT LANSING, MICHIGAN JUN 0 9 2006

This decision will become final unless a written request for rehearing or appeal to the appropriate circuit court is RECENED on or before

JUL 1 0 2DffR

TO PROTECT YOUR RIGHTS, YOU MUST BE ON TIME.