E5-260. The Boeing Company, Long Beach Division, Long Beach, California; Notice of Negative Determination Regarding Application for Reconsideration

By application of October 14, 2004, a representative of the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, Local 148, 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, 2004, and published in the Federal Register on October 8, 2004 (69 FR 60425).

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 mis-interpretation of facts or of the law justified reconsideration of the decision.

The petition for the workers of The Boeing Company, Long Beach Division, Long Beach, California was denied because criterion (1) was not met. The subject facility 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 alleges that the workers of the 717 commercial aircraft program are separately identifiable from the rest of the workforce at the subject facility, and that there have been significant declines in employment within the 717 program.

A company official was contacted in regards to these allegations. The company official confirmed that the workers of the 717 commercial aircraft program are separately identifiable from the rest of the workforce at the subject facility, and provided employment figures for the 717 commercial aircraft program at the subject facility for end of year 2002, end of year 2003, and mid-December 2004.

Employment figures for the 717 commercial aircraft program at the subject facility showed an increase in employment from 2002 to 2003. Furthermore, although there was a slight employment decline within the 717 program at the subject facility from 2003 to December 2004, the subject division 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. Significant number or proportion of the workers means that total or partial separations, or both, in a firm or appropriate subdivision thereof, are the equivalent to a total unemployment of five percent (5 percent) of the workers or 50 workers, whichever is less. Separations by the subject facility, and by the 717 commercial aircraft division within the subject facility, did not meet this threshold level.

The petitioner also provided information showing employment declines within the Boeing commercial aircraft program nationwide and in California, but not specifically at the subject facility. When assessing eligibility for TAA, the Department makes its determinations based on the requirements as outlined in section 222 of the Trade Act. In particular, the Department considers the relevant employment data for the facility where the petitioning worker group was employed. As employment levels at the subject facility did not decline significantly in the relevant period, criteria (I.A.) of Section (a)(2)(A) has not been met.

Additionally, the petitioner included information indicating that Boeing had lost a significant portion of its market share to the European Airbus Consortium. Although the Department would normally consider such information, since the subject division did not experience a significant decline in employment, it does not affect the outcome of this investigation.

Conclusion

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.

Signed at Washington, DC, this 27th day of December 2004.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.