[Federal Register: August 10, 2004 (Volume 69, Number 153)]
[Notices]
[Page 48527-48528]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10au04-134]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-53,648]
International Business Machines Corporation, Tulsa, Oklahoma;
Notice of Negative Determination on Reconsideration on Remand
The United States Court of International Trade (USCIT) granted the
Secretary of Labor's motion for a voluntary remand for further
investigation in Former Employees of International Business Machines
Corporation v. Elaine Chao, U.S. Secretary of Labor, No. 04-00079.
The Department's initial negative determination regarding
International Business Machines Corporation (hereafter ``IBM'') was
issued on December 2, 2003 and published in the Federal Register on
January 16, 2004 (69 FR 2622). The determination was based on the
finding that the workers did not produce an article within the meaning
of Section 222 of the Trade Act of 1974. The workers provided
accounting and application services.
By letter of February 6, 2004, the petitioner requested
administrative reconsideration for Trade Adjustment Assistance (TAA).
The negative reconsideration determination was issued on March 31,
2004. The notice of determination was published in the Federal Register
on April 16, 2003 (67 FR 20644). The determination was based on the
findings that the workers did not produce an article within the meaning
of Section 222 of the Trade Act and that the workers did not provide
services in direct support of a TAA certified firm.
In their submissions to the Department, Plaintiffs made the
following assertions: (1) Workers of IBM, Tulsa, Oklahoma are under the
control of British Petroleum (BP) and should be treated as BP
employees; (2) Workers of IBM, Tulsa, Oklahoma are engaged in
production of a trade impacted article (crude oil and natural gas),
based on a previous certification issued in February 1999 by the
Department for workers of AMOCO Exploration and Production in the State
of Oklahoma; and (3) IBM workers in Tulsa, Oklahoma are BP-controlled
workers engaged in production and because BP could be certified for
TAA, the workers of IBM, Tulsa, Oklahoma should be eligible for TAA
benefits.
On remand, the Department conducted a careful investigation in
response to the plaintiff's allegations and will address each assertion
in turn.
Workers of IBM, Tulsa, Oklahoma Are Under the Control of BP
In order to determine the scope of control by BP over the workers
of IBM, Tulsa, Oklahoma, the Department requested additional
information from IBM regarding the business relationship of IBM and BP,
the functions of the subject worker group and the operations of IBM.
The information obtained during the remand investigation revealed
that the relationship between IBM and BP is based on a contractual
agreement documenting the commercial terms of service between two
independent companies and that BP had no legal control over IBM
employees. According to an IBM official, IBM is an independent company
with its headquarters in Armonk, New York and there is no affiliation
between IBM and BP. The IBM employees in Tulsa, Oklahoma provide
finance, accounting and information technology services to multiple
clients, including BP. These employees were subject to IBM's terms and
conditions of employment, reported to IBM managers and were located at
an IBM facility in Tulsa, Oklahoma. IBM provides services to numerous
BP facilities located in the United States. These functions include
general accounting, capital asset accounting, oil and gas revenue
accounting, and accounts payable and receivable. Further, according to
the IBM official, workers of IBM were not employed at any BP facility
during the relevant time period. Therefore, the Department determines
that IBM workers were not under the control of BP during the relevant
time period.
Workers of IBM, Tulsa, Oklahoma Are Engaged in Production
Plaintiffs allege that members of the subject worker group are
engaged in
[[Page 48528]]
production (crude oil and natural gas). To address this allegation, the
Department contacted the subject company and requested that IBM verify
this information. On further investigation, it was revealed that no oil
or gas is being produced within the IBM Corporation and workers of the
subject firm are not in support of the production for any IBM
affiliated facilities.
The plaintiffs base their assertion on a previous TAA certification
(TA-W-35,309N) for another worker group (AMOCO Exploration and
Production). For the reasons described below, Department has determined
that the plaintiffs' reliance on this certification is without basis.
Case TA-W-35,309N refers to workers at AMOCO Exploration and
Production, and AMOCO Shared Services, operating in the state of
Oklahoma, including accountants then working for AMOCO at the Tulsa
facility, who were certified eligible to apply for adjustment
assistance on February 19, 1999. That certification was amended on
March 14, 1999 to reflect new ownership and a name change to BP/AMOCO,
AMOCO Exploration and Production, AMOCO Shared Services, A/K/A AMOCO
Production Company, Inc., operating in the state of Oklahoma. Workers
certified in that instance were determined to be ``engaged in
activities related to exploration and production of crude oil and
natural gas.'' That certification expired February 19, 2001, well
beyond the relevant time period. The relevant period for this
investigation stretches back one year from the date of the petition, or
February 10, 2003. The Department considers facts related to the
relevant period of the current investigation; therefore the previous
certification has no bearing on the determination of eligibility at
this time.
In order for workers to be considered eligible for TAA, the worker
group seeking certification must work for a ``firm'' or subdivision
that produces an article domestically, and production must have
occurred within the relevant period of the investigation. As stated in
the reconsideration determination, the workers in the immediate case
can be distinguished from the workers covered by TA-W-35,309N in that,
unlike the workers in the immediate case, the workers covered by TA-W-
35,309N were employed by the subject company and were in direct support
of an affiliated facility that was, at the time, currently certified
for TAA. Because the workers of IBM, Tulsa, Oklahoma are neither
employed by BP nor in direct support of an IBM facility whose workers
are currently TAA-certified or could be certified for TAA, the members
of the subject worker group are not workers engaged in the production
of an article, in this case, oil and gas.
IBM workers in Tulsa, Oklahoma Should Be Eligible for TAA
Plaintiffs allege that because IBM workers in Tulsa, Oklahoma are
BP-controlled workers, the IBM workers are engaged in production, and
BP could be certified for TAA, the workers of IBM, Tulsa, Oklahoma
should be eligible for TAA benefits.
As previously discussed, the subject worker group is not controlled
by BP and cannot, therefore, be treated as BP workers and is not
engaged in production of crude oil and natural gas.
Even assuming that the IBM workers were considered leased workers
of BP, the IBM workers would not be eligible for TAA. Historically, the
Department included only leased production workers in TAA
certifications. However, on January 23, 2004 a new policy was
instituted which allowed a certification of all leased workers,
including service workers who are working at the same location as
workers who have been previously certified eligible for TAA. According
to this policy, in order to be eligible, leased workers must perform
their duties onsite at the affected location on an established
contractual basis. As discussed above, the IBM contract with BP does
not subject the IBM workers to the kind of control by BP that makes
them leased workers. Further, it was determined that workers of IBM,
Tulsa, Oklahoma are not co-located with BP workers at a BP facility
that produces an article.
Section 222 of the Trade Act establishes that the Department shall
not certify a group unless increases of imports of articles like or
directly competitive with articles produced by such workers' firm or an
appropriate subdivision thereof contributed importantly to such total
or partial separation, or threat thereof, and to such decline in sales
or production. Under this requirement, the Department cannot issue a
certification of eligibility to a worker group unless the workers' firm
or an appropriate subdivision of the workers' firm produces an import-
impacted article. The Tulsa, Oklahoma facility is an IBM-owned facility
and BP did not have any operation at that location during the relevant
time period.
Conclusion
After reconsideration on remand, I affirm the original notice of
negative determination of eligibility to apply for adjustment
assistance for workers and former workers of International Business
Machines Corporation, Tulsa, Oklahoma.
Signed at Washington, DC, this 2nd day of August 2004.
Elliott S. Kushner,
Certifying Officer, Division of of Trade Adjustment Assistance
[FR Doc. 04-18236 Filed 8-9-04; 8:45 am]
BILLING CODE 4510-30-P