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By application postmarked September 14, 2009, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA), applicable to workers and former workers of the subject firm. The denial notice was signed on September 2, 2009 and will soon be published in the Federal Register.
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The negative TAA determination issued by the Department for workers of Electronic Data Systems, an HP Company, Plano, Texas was based on the finding that the subject firm did not separate or threaten to separate a significant number or proportion of workers as required by Section 222 of the Trade Act of 1974.
The petitioner stated that he was separated from the employment during May 2009 at which time his position was shifted to Brazil.
When assessing eligibility for TAA, the Department determines whether each required criterion is met. In order for the criteria (a)(2)(A)(i) and 222(c)(1) to be met, the Department exclusively considers the relevant employment data (for one year prior to the date of the petition and any imminent layoffs) for the facility where the petitioning worker group was employed.
In case at hand, the investigation revealed that employment levels at Electronic Data Systems, an HP Company, Plano, Texas declined by two during the relevant period and there was no threat of separations. Significant number or proportion of the workers in a firm or appropriate subdivision means at least three workers in a workforce of fewer than 50 workers, five percent of the workers in a workforce of over 50 workers, or at least 50 workers. Therefore, criterion I of Section 222(a) and criterion (1) of Section 222(c) of the Act were not met.
The petitioner also alleged that there was a shift in services provided by the workers of the subject firm to Brazil.
The allegation of the shift in services to Brazil would have been relevant if it was determined that all other criteria have been met. However, it was revealed that there was no significant employment decline at the subject facility during the relevant period.
Should conditions change in the future, the petitioner is encouraged to file a new petition on behalf of the worker group which will encompass an investigative period that will include these changing conditions.
The petitioner did not supply facts not previously considered; nor provide additional documentation indicating that there was either (1) a mistake in the determination of facts not previously considered or (2) a misinterpretation of facts or of the law justifying reconsideration of the initial determination.
After careful review of the request for reconsideration, the Department determines that 29 CFR 90.18(c) has not been met.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.Start Signature
Signed in Washington, DC, this 15th day of October 2009.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E9-25789 Filed 10-26-09; 8:45 am]
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