E7-20726. Family Entertainment dba Sherwood Forest Family Golf, Conyers, GA; Notice of Negative Determination Regarding Application for Reconsideration

By application postmarked September 6, 2007, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA). The denial notice applicable to workers of Family Entertainment, dba Sherwood Forest Family Golf, Conyers, Georgia was signed on August 22, 2007 and published in the Federal Register on September 11, 2007 (72 FR 51845).

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 misinterpretation of facts or of the law justified reconsideration of the decision.

The TAA petition filed on behalf of workers at Family Entertainment, dba Sherwood Forest Family Golf, Conyers, Georgia engaged in activities related to the operation of an amusement park was denied because the petitioning workers did not produce an article within the meaning of section 222 of the Act.

The petitioner contends that the Department erred in its interpretation of work performed at the subject facility as “activities related to operating an amusement park” and further conveys that workers of the subject firm were not employees of the amusement park, but were rather workers of the Marketing Division.

A company official was contacted for clarification in regard to the nature of the work performed at the subject facility. The official stated that Family Entertainment, dba Sherwood Forest Family Golf, Conyers, Georgia operates an amusement park, where the following entertainment services are provided: putt-putt golf, a raceway of go-karts, bumper boats, bumper carts, batting cages and an arcade. The official clarified that Sherwood Forest does not use divisions and that employees of the subject firm “work counters at golf desk or concessions, operate rides by taking tickets, administering instructions, assisting patrons into moving rides and monitoring throughout the length of the ride.”

The official further stated that two petitioning workers were hired as sales agents to try a new promotional program in August 2006. These employees sold Everything Goes passes and performed promotional activities for the amusement park by “handing out flyers to whomever they choose to solicit.” The official stated that even though these two workers were “on foot advertising/promotional type employees” and were not required to be stationary at the place of business, and were paid commission along with a salary, they were employees of Sherwood Forest Family Golf and performed services supporting business and activities of the amusement park.

The petitioner further alleges that the petitioning workers “produced and mass produced items such as flyers, pamphlets, guides, rule books, manuals, instruction sets” etc. The petitioner stated that “he was in charge of production strategies/marketing of many promotional items”.

The company official clarified that the petitioning workers “in no way produced, created, designed nor mass produced” any of the above mentioned articles for the subject firm. The official stated that Family Entertainment has a management team which completes all these tasks and that the petitioning workers were only in charge of the way they sold Everything Goes passes and distributed flyers.

To support his allegations, the petitioner enclosed a copy of the Georgia Department of Labor Unemployment Claims Examiner's Determination which states that the reason behind the petitioner's separation from the subject firm was a lack of work, and a stub reflecting information concerning the final unemployment check. For the purposes of this investigation, these documents do not contain any evidence that the workers of the subject firm created an article and that there was a shift in production of an article by the subject firm abroad.

The petitioner also enclosed various flyers, brochures, coupons, pass cards and promotional advertisements and stated that workers of the subject firm created and produced these articles.

The company official verified that these pass cards, coupons and advertisements were designed by the subject firm's previous manager and were prepared and sent to a professional local printing company. The official further confirmed that the rest of the promotional material was typed as a word document and printed on a computer printer by the administrative staff of either Family Entertainment or another domestic company, Atlanta Cutlery. The administrative employees of the subject firm continue to perform these functions to support and promote business activities of the amusement park.

The petitioner further alleges that the subject firm shifted production of the articles to India and “the fact that these articles are no longer produced here is the reason that we are no longer employed”. To support these allegations, the petitioner enclosed copies of handwritten “Weekly Sales Report” and “Business Contact Form” stating that the workers performed telemarketing calls and that these tasks are now performed in India.

The company official stated that Family Entertainment dba Sherwood Forest did not shift any job functions to India and is not importing any articles from the foreign source. The official further stated that “the only relation Family Entertainment has with India is the fact that it is owned by a U.S. Citizen from India” and that the previous manager of the subject firm who is no longer affiliated with the company, resides in India with his family at the present time. The company official confirmed that the subject firm is in the business of entertainment services and whatever printed material might be designed or produced by the administrative staff of the subject firm as incidental to these services continues to be designed and produced by the subject firm or other domestic companies.

The company official further stated that the petitioning workers were separated from the subject firm after the management evaluated the promotional program and made a decision to discontinue the program due to low profitability.

In the request for reconsideration, the petitioner doubts the accuracy of the information provided by Family Entertainment.

The Department has no evidence that would suggest that the officials of the Family Entertainment had any reason to mislead the investigation or that they had any interest in the outcome of this determination that might have been adverse to the former employees of the subject firm.

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 16th day of October 2007.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.