20 Ct. Int'l Trade 201 | Ct. Intl. Trade | 1996
Opinion
Plaintiffs, former employees of Stanley Smith Security, Inc. (“Former Employees”) contest the decision of the Department of Labor, Office of Trade Adjustment Assistance (“Labor”), denying Plaintiffs’ petition for certification of eligibility for trade adjustment assistance benefits. Plaintiffs move for summary judgment,
Facts
Plaintiffs are the former employees of Stanley Smith Security, Inc. working at the Trojan Nuclear Plant, Rainier, Oregon.
In developing its 1992 Integrated Resource Plan, PGE decided to phase out Trojan in 1996 rather than replace steam generators that were experiencing micro flaws in their heat transfer tubes. Then, on November 9,1992, a leak in a steam generator tube was detected. This incident increased operating costs. (R. at 104.) The availability of better contractual terms and of surplus electricity, particularly from California and Canada, made purchased power more attractive. Consequently, on January 4,1993 PGE decided to cease power production at the Trojan Nuclear Plant immediately rather than in 1996. (R. at 129-30.) Former employees of PGE working at Trojan and at PGE, Portland, Oregon, were certified eligible to apply for adjustment assistance in April 1993 (TA-W-28,438 and TA-W-28, 438A). (R. at 159).
Labor commenced an investigation of Plaintiffs’ eligibility for trade adjustment assistance on March 15, 1993 (TA-W-28,442).
Based on the investigation, on May 10,1993 Labor denied eligibility to apply for adjustment assistance.
On June 1,1993, Plaintiffs requested reconsideration of Labor’s negative determination, stressing that security services at a nuclear facility are in the direct line of production of electricity, because security plans must be maintained as a condition of the license to operate and produce electricity. (R. at 174.)
Labor confirmed its initial negative determination on June 24,1993, commenting that “ [t]he worker adjustment assistance was not intended
This action was initiated by a letter complaint dated August 2,1993. The issue presented is whether Labor’s negative determination is supported by substantial evidence on the administrative record, and is otherwise in accordance with law.
Jurisdiction and Standard of Review
Pursuant to 19 U.S.C. § 2395 (1994)
The scope and standard of review in the present case is prescribed by 28 U.S.C. § 2640(c) (1988 & Supp. 1993) and 19 U.S.C. § 2395 (1994). Judicial review is on the administrative record and Labor’s findings of fact, if supported by substantial evidence, are conclusive. “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. ” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). At the same time, substantial evidence “is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Commission, 383 U.S. 607, 619-20 (1966).
Discussion
When investigating a petition for certification of eligibility for trade adjustment assistance, Labor must determine whether the group of workers meets the adjustment assistance eligibility requirements set
Plaintiffs challenge Labor’s determination, claiming that Labor failed to investigate the specific training and duties involved in the Former Employees’ job, and to determine the purpose of their work in relation to the production of electricity. (Plaintiffs’ Memorandum at 6.) Indeed, Plaintiffs explain that they were integral to the production of electricity because they were “central and pivotal” to such production, and their role was essential. (Id. at 9.) As such, even assuming that their work cannot be characterized as production, they are entitled to assistance, because they were involved in the production of an article. (Id. at 6-7, 10-11.)
To this effect, Plaintiffs invoke the authority of Abbot v. Donovan, 6 CIT 92 (1983). In Abbot, Labor, while certifying the workers employed in two departments, had excluded other workers who provided ancillary and support services to the certified departments. The court observed that the adjustment assistance provisions of the Trade Act of 1974 are silent regarding coverage for service workers, and similarly silent is the legislative history. Hence, “the court must accord substantial deference to the interpretation of the statute by the agency.” Id. at 100. The court noted that Labor’s interpretation of the Trade Act was oriented toward certifying service workers only when there was an important causal nexus between increased imports and the layoff of service workers. “That nexus is deemed to exist if a substantial amount of the service workers’ activity was directly related to the production of the import-impacted article. For five years, the Department of Labor has implemented its interpretation of the statute by requiring that at least 25% of the service workers’ activity be expended in service to the subdivision which produces the import-impacted article.” Id. at 101.
The present case is distinguishable from Abbot. Labor did not have to investigate the existence of the important causal nexus between increased imports and the Plaintiffs’ layoffs; nor did Labor have to report on the percentage of service workers in relation to the production workers. Such investigation occurs only when the petitioning workers are employed by a firm that produced, directly or through an appropriate
It is true that, in order to maintain its license, the nuclear plant was required to keep a security system composed of officers specifically trained to perform tasks and duties in accordance with the “physical security plan. ”
Conclusion
After considering the papers submitted herein, relevant case law as well as the administrative record, the Court holds that Labor’s determination is supported by substantial evidence contained in the record, and is in accordance with the trade adjustment assistance provisions of the Trade Act of 1974.
Accordingly, Plaintiffs’ motion for judgment upon the administrative record is denied, Labor’s negative determination is affirmed, and this action is dismissed.
The Court will treat Plaintiffs’ motion for summary judgment as a motion for judgment upon the agency record, USCIT R. 56.1(a).
Former Employees are represented by Michael J. Bender. On Aug. 3,1994, this Court granted Mr. Bender leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). Michael E Maxwell was appointed to serve without fee and to appear generally on behalf of Mr. Bender, as his attorney and counselor at law.
The petition was considered in relation to the other petition filed by PGE workers at the Trojan Nuclear Plant, Rainier, Oregon (TA-W-28,438). (Petition Verification, R. at 149.)
Section 222 of the Trade Act of 1974,19 U. S. C. § 2272, as amended, provides:
(a) The Secretary shall certify a group of workers * * * as eligible to apply for adjustment assistance under this subpart if he determines—
(1) that a significant number or proportion of the workers in such workers’ firm or an appropriate subdivision of the firm have become totally or partially separated,
(2) that sales or production, or both, of such firm or subdivision have decreased absolutely, and
(3) that 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.
(b) For purposes of subsection (a)(3) of this section—
(1) The term “contributed importantly” means a cause which is important but not necessarily more important than any other cause
19 U.S.C. § 2395 provides:
(b) Findings of fact by Secretary; conclusiveness; new or modified findings
The findings of fact by the Secretary of Labor or the Secretary of Commerce, as the case may be, if supported by substantial evidence, shall be conclusive; but the court, for good cause shown, may remand the case to such Secretary to take further evidence, and such Secretary may thereupon make new or modified findings of fact and may modify his previous action, and shall certify to the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence.
(c) Determination; review by Supreme Court
The Court of International Trade shall have jurisdiction to affirm the action of the Secretary of Labor or the Secretary of Commerce, as the case may be, or to set such action aside, in whole or in part * * *.
28 U.S.C. § 1581(d)(1) provides:
The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review—
(1) any final determination of the Secretary of Labor under section 223 of the Trade Act of1974 with respect to the eligibility of workers for adjustment assistance under such Act.
See supra, note 4. The Trade Act of 1974 was intended “to foster the economic growth of and full employment in the United States and to strengthen economic relations between the United States and foreign countries through open and nondiscriminatory world trade,” 19 U.S.C. § 2102(1), as well as “to provide adequate procedures to safeguard American industry and labor against unfair or injurious import competition, and to assist industries, firmfs], workers, and communities to adjust to changes in international trade flows,” 19 U.S.C. § 2102(4). Recognizing that increased imports could burden some domestic industries, Congress provided adjustment assistance for workers, firms, and communities injured by import competition. In fact, a group of workers can qualify for benefits including compensation, employment services, training, job search and relocation allowances, 19 U.S.C. § 2291-98, if the Secretary of Labor determines that the requirements for granting the benefits, enumerated under § 2272, are met.
The purpose of the TAA program is to offset the negative effects on the work force whose jobs the company has eliminated. Congress intended to “encourage workers who are unemployed because of import competition to learn the new skills necessary to find productive employment in a changing American economy." S. Rep. No. 71,100th Cong., 1st Sess. 11 (1987).
The court remanded the case, because Labor had determined that the cost of services was significantly less than 25% of the cost of the work directed to production, neglecting, however, to include these data in the administrative record.
29 CFR § 90 (1995) covers “certification of eligibility to apply for worker adjustment assistance.” 29 CFR § 90.2, which contains the “definitions,” provides:
Appropriate subdivision means an establishment in a multi-establishment firm which produces the domestic articles in question or a distinct part or section of an establishment (whether or not the firm has more than one establishment) where the articles are produced. The terra appropriate subdivision includes auxiliary facilities operated in conjunction with (whether or not physically separate from) production facilities
Firm includes an individual proprietorship, partnership, joint venture, association, corporation (includinga development corporation), business trust, cooperative, trustee in bankruptcy, and receiver under decree of any court. A firm, together with any predecessor or successor-in-interest, or together with any affiliated firm controlled or substantially beneficially owned by substantially the same persons, may be considered a single firm.
Plaintiffs have not presented allegations that Stanley Smith Security, Inc. is affiliated, controlled or owned by PGE, nor does the record reveal that PGE is or acts as Stanley Smith’s alter ego. See 29 CFR § 90.2.
See Woodrum v. Donovan, 5 CIT 191 (1983), aff'd, 2 Fed. Cir. (T) 82 (1984), where former employees of an automobile dealership challenged the denial of assistance contending that they were part of the production process for new automobiles because their labor was essential to the final delivery of the automobiles to the general public. The court observed that ‘Toln occasion, the Secretary has certified service workers, but only where he has determined that they were integrated into the production of articles adversely affected by increased imports. The predicate for the determination is a finding that the petitioning workers were employed by a ‘firm’ which produced, or had an $appropriate subdivision’ which produced, the import-impacted article." Id. at 199.
10 CFR 50.34(c) (1995); 10 CFR Ch. 1, App. B (1995).
In the case of contract personnel, the regulations prescribe that the qualifications of each individual must be documented and attested by a licensee’s security supervisor. 10 CFR Ch. 1, App. B, II.C.
Plaintiffs recognize that their relationship with PGE and Trojan is a contractual one.
See the CFR definitions of appropriate subdivision and of firm. 29 CFR § 90.2.