E9-25152. Dell USA LP, Americas Business Operations Organization; Round Rock, TX; Notice of Negative Determination Regarding Application for Reconsideration

By application sent via facsimile on September 17, 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 August 7, 2009 and published in the Federal Register on September 22, 2009 (74 FR 48304).

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 negative TAA determination issued by the Department for workers of Dell USA LP, Americas Business Operations Organization, Round Rock, 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 prior to May 2008 the workers of the subject firm were part of Global Financial Services Group at Dell USA. The petitioner further stated that in May 2008 the petitioning worker group was transferred to a different division at Dell USA and became a part of Americas Business Operations Group. After the transition, the workers continued performing similar functions and were engaged in activities related to financial and accounting services.

When assessing eligibility for TAA, the Department determines whether each required criterion is met prior to issuing the determination. 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 Dell USA LP, Americas Business Operations Organization, Round Rock, Texas did not decline during the relevant period and there was no threat of separations. A 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 India and not to Beijing, China as indicated in the negative determination document issued by the Department of Labor.

The allegation of the shift in services to India would have been relevant if it was determined that all other criteria have been met. However, it was revealed that there was no 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.

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 in Washington, DC, this 6th day of October, 2009.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.