E9-25157. Consuelo E. Kelly, DBA Kelly International U.S.; Overland Park, KS; Notice of Negative Determination Regarding Application for Reconsideration

By application dated September 9, 2009, a company official 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 12, 2009 and published in the Federal Register on September 22, 2009 (74 FR 48301).

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 Consuelo E. Kelly, dba Kelly International U.S., Overland Park, Kansas was based on the finding that the worker group number threshold was not met in accordance with the group eligibility requirements of Section 222 of the Trade Act of 1974. Section 222 of the Trade Act defines an eligible worker “group” as “three or more workers in a firm or an appropriate subdivision.” As the total worker number at Consuelo E. Kelly, Overland Park, Kansas was two in the relevant period, the worker group did not meet the group eligibility requirements for trade adjustment assistance.

In the request for reconsideration the petitioner alleged that even though the worker group accounted for two employees during the relevant period, the number of workers in the worker group should not be a determining factor for determining of the Kelly International's eligibility for TAA.

The number of workers in the worker group and number of separated workers during the relevant period are elements that are relevant in determining workers' eligibility for TAA as established by the Trade Act of 1974. This criteria is outlined in the legislation and regulations as stated in the determination dated August 12, 2009.

When assessing eligibility for TAA, the Department exclusively considers employment numbers at the subject firm during the relevant period (one year prior to the date of the petition). Since the subject firm employed only two workers during the relevant period the workers do not meet the eligibility requirement of the trade act in the current 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 in Washington, DC, this 29th day of September 2009.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.