TAA Decision 60808
Note: Determinations for this case number, this case number with an alphabetic suffix, and any appeals or amendments appear below.
DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-60,808
INVISTA, S.A.R.L.
NYLON APPAREL FILAMENT FIBERS GROUP
A SUBSIDIARY OF KOCH INDUSTRIES, INC.
CHATTANOOGA, TENNESSEE
Notice of Negative Determination
on Remand
On March 27, 2008, the U.S. Court of International
Trade (USCIT) granted the Department of Labor's motion for
a second voluntary remand in Former Employees of Invista,
S.A.R.L. v. U.S Secretary of Labor, Court No. 07-00160.
On December 15, 2006, an official of Invista, S.A.R.L,
Nylon Apparel Filament Fibers Group, A Subsidiary of Koch
Industries, Inc., Chattanooga, Tennessee (the subject firm)
filed a petition for Trade Adjustment Assistance (TAA) and
Alternative Trade Adjustment Assistance (ATAA) on behalf of
workers and former workers at the subject firm engaged in
activity related to the production of nylon fiber. AR 1.
The company official stated that the "petition is a
continuation of the shift of production to Mexico as
described in TA-W-55,055 that expired August 20, 2006.
After the shift in production to another country . . . all
orders continued to be processed from the United States
until now. The Customer Service Representatives (CSR's)
losing their jobs are being replaced by CSR's located in
South America who will handle orders for companies located
in the United States." AR 2.
The TAA/ATAA certification applicable TA-W-55,055
(issued August 20, 2004) was based on the Department's
findings that the subject firm shifted production of three
types of nylon filament to Mexico. AR 5-6.
The Department of Labor (Department) issued a negative
determination regarding workers' eligibility to apply for
TAA/ATAA on February 7, 2007. The determination was based
on the Department's findings that, during the relevant
period, the subject workers did not produce an article or
support an appropriate subdivision that produced an article
domestically, and, as such, cannot be adversely impacted or
affected by a shift in production. AR 30-32. The
Department's Notice of determination was published in the
Federal Register on February 21, 2007 (72 FR 7909). AR 43.
In the request for administrative reconsideration,
dated February 18, 2007, a worker at the subject firm
stated that after TA-W-55,055 was filed, the subject firm
ceased to produce apparel textile and began producing
Performance Materials. The worker also stated that "after
the petition (TA-W-55,055) expired, (the subject firm) let
go the last of the apparel fibers personnel. Since I sold
100% apparel fiber, there was no reason to keep me." AR 35.
The worker further stated that "I was downsized, yet there
were people in Brazil hired to do my work." AR 36.
In a subsequent letter, the worker who filed the
request for reconsideration stated that "I was informed by
management on 11/14/06, that my job was being split up;
part of it going to Brazil and part going to Wilmington,
Delaware." AR 37. The worker also stated that "All the
apparel people were let go. This is a direct result of the
textile industry going to developing countries and the loss
of textile manufacturing in the U.S." AR 38.
In a letter dated March 15, 2007, the Department
stated that the request for reconsideration was being
dismissed because insufficient evidence was furnished to
warrant reconsideration pursuant to 29 CFR 90.18(c) and
reiterated that, because the subject workers did not
produce an article or support domestic production of an
article during the one year period prior to the petition,
the subject workers are not eligible to apply for worker
adjustment assistance under the Trade Act of 1974, as
amended. AR 45. The Dismissal of Application for
Reconsideration was issued on March 21, 2007. AR 47. The
Department's Notice of dismissal was published in the
Federal Register on March 30, 2007 (72 FR 15169). AR 48.
By application dated May 11, 2007, Plaintiffs sought
review by the USCIT. The complaint stated that the
certification of TA-W-55,055 was based on a shift of
textile machines to Mexico and that the negative
determination of TA-W-60,808 was "due to the machines
having been shipped to Mexico more than a year earlier. Yet
my job did not officially terminate till the reorganization
to rid the Chattanooga plant of ALL textile employees."
Under the Trade Act of 1974, as amended, certification
of group eligibility to apply for TAA will be issued
provided that 1) a significant number or proportion of the
workers of such workers' firm, or an appropriate
subdivision, have been totally or partially separated or
are threatened to become totally or partially separated;
and 2) there has been a shift in production from the
workers’ firm or subdivision to an eligible foreign country
of articles like or directly competitive with those
produced by the subject firm or subdivision under section
222(a)(2)(B)(i); and, either the foreign country is a party
to a free trade agreement with the United States under
section 222(a)(2)(B)(ii)(I), is a beneficiary country under
section 222(a)(2)(B)(ii)(II), or there has been or is
likely to be an increase in imports of like or directly
competitive articles. The Department interprets this
standard for certification as requiring that the shift of
production of an article to a foreign country must be a
cause of the separations of workers of the firm that were
engaged in or supported the production of that article.
After the shift of nylon filament production to Mexico
in 2004, the subject firm continued to employ the subject
workers to market nylon apparel filament produced in Mexico
and to process orders of nylon apparel filament produced in
Mexico. AR 2, 26-27, 29, 35-38, SAR 8.
Information provided by the subject firm during the
remand investigation revealed that the workers’ separations
are not related to the shift of production of apparel nylon
filament to Mexico in 2004. During the relevant period,
customer service functions were performed at Invista
facilities in Canada, South America, Chattanooga,
Tennessee, and Wilmington Delaware. The customer service
functions were consolidated to Paulinia, Brazil, and
Wilmington, Delaware due to a business decision to improve
the efficiency of the customer service organization. At
the time of plaintiff separations the subject firm
terminated other workers whose functions were unrelated to
the production of apparel nylon filaments. SAR 11, 18. The
separated workers were “two (2) Apparel Nylon Customer
Service Representatives located at Chattanooga, one (1)
Performance Materials Customer Service Representative
located at Chattanooga, and one (1) Performance Materials
Product Coordinator located at Chattanooga.” SAR 8. The
fact that two of the four separated workers worked on a
product line (Performance Materials) whose production was
not shifted to Mexico confirms the company’s statements
that the layoffs were part of a business decision to
increase efficiency in the customer service operation.
This bolsters the conclusion that the plaintiff separations
were not caused by the shift of production of apparel nylon
filaments to Mexico over two years earlier.
That the subject workers were not threatened with
separation until November 14, 2006 (more than two years
after the subject firm's shift of production of nylon
apparel filament to Mexico) and that the customer service
representatives have been replaced by workers in Brazil and
Delaware, SAR 3, 8, 11, 18, and not by workers in Mexico,
support the Department's findings that the subject workers'
employment with the subject firm was not dependent upon
domestic production and that the subject firm's shift of
nylon apparel filament production to Mexico was not a
factor in the subject workers' separations.
Based on previously-submitted material and information
provided during the remand investigation, the Department
finds that, while the subject firm shifted its production
of nylon apparel filament to Mexico, that event was not a
cause of the subject workers' separations. Therefore, the
Department determines that the group eligibility to apply
for benefits under the Trade Act of 1974, as amended, has
not been met.
Because the administrative record clearly demonstrates
that the shift of production to a foreign country was not a
cause to the workers’ separations, the Department has not
addressed the impact of the fact that no production took
place at the subject firm during the twelve month period
prior to filing of the petition.
In addition, in accordance with Section 246 of the
Trade Act of 1974, as amended, the Department herein
presents the results of its investigation regarding
certification of eligibility to apply for ATAA.
In order to apply for ATAA, the subject worker group
must be certified eligible to apply for TAA. Since the
workers are denied eligibility to apply for TAA, they
cannot be certified eligible to apply for ATAA.
Conclusion
After careful review of the findings of the remand
investigation, I affirm the notice of negative
determination of eligibility to apply for worker adjustment
assistance for workers and former workers of Invista,
S.A.R.L, Nylon Apparel Filament Fibers Group, A Subsidiary
of Koch Industries, Inc., Chattanooga, Tennessee.
Signed at Washington, D.C. this 2nd day of June 2008.
/s/ Elliott S. Kushner
__________________________________
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance
4510-FN-P
DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-60,808
INVISTA, S.A.R.L.
NYLON APPAREL FILAMENT FIBERS GROUP
A SUBSIDIARY OF KOCH INDUSTRIES, INC.
CHATTANOOGA, TENNESSEE
Negative Determination Regarding Eligibility
To Apply For Worker Adjustment Assistance and
Alternative Trade Adjustment Assistance
In accordance with Section 223 of the Trade Act of
1974, as amended (19 USC 2273), the Department of Labor
herein presents the results of an investigation regarding
certification of eligibility to apply for worker adjustment
assistance.
The investigation was initiated on January 22, 2007,
in response to a petition filed by a company official on
behalf of workers at INVISTA, S.a.r.l., Nylon Apparel
Filament Fibers Group, a subsidiary of Koch Industries,
Inc., Chattanooga, Tennessee. Workers at the subject
facility were engaged in sales and marketing activities of
nylon apparel filament fibers. These workers are separately
identifiable from the Nylon Performance Filament Group.
In order to be considered eligible to apply for
adjustment assistance under Section 223 of the Trade Act of
1974, the worker group seeking certification (or on whose
behalf certification is being sought) must work for a
"firm" or appropriate subdivision that produces an article
domestically and there must be a relationship between the
workers' work and the article produced by the workers' firm
or appropriate subdivision. The investigation revealed
that domestic production of an article within the Nylon
Apparel Filament Fibers Group ceased more than one year
ago. The petitioning Nylon Apparel Filament Fibers workers
were engaged in marketing activities and were not in
support of domestic production within the requisite one
year period. Thus the worker group cannot be considered
import impacted or affected by a shift in production of an
article.
In addition, in accordance with Section 246 the Trade
Act of 1974 (26 USC 2813), as amended, the Department of
Labor herein presents the results of its investigation
regarding certification of eligibility to apply for
alternative trade adjustment assistance (ATAA) for older
workers.
In order for the Department to issue a certification
of eligibility to apply for ATAA, the worker group must be
certified eligible to apply for trade adjustment assistance
(TAA). Since the workers are denied eligibility to apply
for TAA, the workers cannot be certified eligible for ATAA.
Conclusion
After careful review of the facts obtained in the
investigation, I determine that all workers of the INVISTA,
S.a.r.l., Nylon Apparel Filament Fibers Group, a subsidiary
of Koch Industries, Inc., Chattanooga, Tennessee are denied
eligibility to apply for adjustment assistance under
Section 223 of the Trade Act of 1974, and are also denied
eligibility to apply for alternative trade adjustment
assistance under Section 246 of the Trade Act of 1974.
Signed in Washington, D.C., this 8th day of February 2007
/s/Richard Church
_____________________________
_
RICHARD CHURCH
Certifying Officer, Division
of
Trade Adjustment Assistance
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