E8-28356. Bernhardt Furniture Company, Plant 6/11, Including On-Site Leased Workers of the Mulberry Group and Accuforce Staffing Services, Lenoir, NC; Bernhardt Furniture Company, Plant 9, Shelby, NC; Notice of Revised Determination on Remand

On October 7, 2008, the U.S. Court of International Trade granted the Department of Labor's motion for voluntary remand for further investigation in Former Employees of Bernhardt Furniture Company v. United States, Court No. 08-00271.

A petition for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA) was filed by a company official on behalf of workers and former workers of Bernhardt Furniture Company (subject firm), Bernhardt Corporate Office, Lenoir, North Carolina (TA-W-63,420), Bernhardt Central Warehouse, Lenoir, North Carolina (TA-W-63,420A), Plant 6/11, Lenoir, North Carolina (TA-W-63,420B), Plant 9, Shelby, North Carolina (TA-W-63,420C), and Plant 10, Cherryville, North Carolina (TA-W-63,420D).

Workers covered by TA-W-63,420 are engaged in activities in support of company production and related operations. Workers covered by TA-W-63,420A are engaged in distribution operations. Plant 6/11 (TA-W-63,420B), Plant 9 (TA-W-63,420C), and Plant 10 (TA-W-63,420D) comprise the Upholstered Furniture Department. Workers at these three facilities produce upholstered furniture and are not separately identifiable by product line.

On June 13, 2008, the Department issued a determination certifying workers and former workers at Plant 10, Cherryville, North Carolina (TA-W-63,420D), based on increased reliance on imports by the subject firm, and denying certification to workers and former workers at the other locations (TA-W-63,420, TA-W-63,420A, TA-W-63,420B, and TA-W-63,420C). The Department's Notice of Determination was published in the Federal Register on June 27, 2008 (73 FR 36576).

On July 17, 2008, a petitioner requested administrative reconsideration on behalf of workers and former workers of Bernhardt Furniture Company, Bernhardt Central Warehouse, Lenoir, North Carolina (TA-W-63,420A). On August 1, 2008, the Department issued a Notice of Negative Determination Regarding Application for Reconsideration applicable to the worker group covered by TA-W-63,420A. The Department's Notice was published in the Federal Register on August 7, 2008 (73 FR 46040).

No request for administrative reconsideration was filed on behalf of worker groups covered by TA-W-63,420B or TA-W-63,420C.

By letter dated August 15, 2008, a subject firm official requested that the U.S. Court of International Trade (USCIT) review the negative determinations applicable to TA-W-63,420B (Plant 6/11) and TA-W-63,420C (Plant 9).

The Department's negative determination applicable to the worker groups covered by TA-W-63,420B and TA-W-63,420C was based on the Department's findings that, for each location, 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. Significant number or proportion of the workers in a firm, or appropriate subdivision thereof, means at least three workers with a workforce of fewer than 50 workers or five percent of the workers with a workforce over 50 workers.

In the complaint, the Plaintiff stated that the three facilities that comprise the Upholstered Furniture Department—Plants 6/11, 9, and 10—“operate as one continuous production operation” and provided new information regarding sales and production at the Upholstered Furniture Department. The complaint also included documentation that indicated that the subject firm did separate or threaten to separate a significant number or proportion of workers at Plant 6/11 and Plant 9.

To apply for TAA, the group eligibility requirements under Section 222(a) of the Trade Act of 1974, as amended, must be met. The group eligibility requirements can be satisfied in either one of two ways:

I. Section (a)(2)(A)—

A. 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, or are threatened to become totally or partially separated; and

B. The sales or production, or both, of such firm or subdivision have decreased absolutely; and

C. Increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or

II. Section (a)(2)(B)—

A. 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, or are threatened to become totally or partially separated; and

B. There has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and

C. One of the following must be satisfied:

1. The country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States; or

2. The country to which the workers' firm has shifted production of the articles is a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or

3. There has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.

During the remand investigation, the Department carefully reviewed previously-submitted material and new information provided by the subject firm regarding employment levels at Plant 6/11 and Plant 9, the number of workers threatened with separation at each location, sales and production levels of the Upholstered Furniture Department, and import of articles like or directly competitive with upholstered furniture produced by the subject worker groups during the relevant period.

Upon further review of these facts, the Department has determined that, during the relevant period, the subject firm did separate or threaten to separate a significant number or proportion of workers at Plant 6/11 and Plant 9; that sales and production of upholstered furniture at Plant 6/11 and Plant 9 declined; and that the subject firm increased its reliance on imports of articles like or directly competitive with those produced at Plant 6/11 and Plant 9. Therefore, the Department determines that the worker groups covered by TA-W-63, 420B and TA-W-63, 420C have met the criteria set forth in Section 222(a)(2)(A).

In accordance with Section 246 the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department herein presents the results of its investigation regarding certification of the subject worker groups' eligibility to apply for ATAA.

The Department has determined in this case that the group eligibility requirements of Section 246 have been met.

A significant number of workers at the firm are age 50 or over and possess skills that are not easily transferable. Competitive conditions within the industry are adverse.

Conclusion

After careful review of the facts developed in the remand investigation, I determine that there was a separation or threat of separation of a significant number or proportion of workers at Plant 6/11, Lenoir, North Carolina, and Plant 9, Shelby, North Carolina, that there were sales and production declines of upholstered furniture at Plant 6/11, Lenoir, North Carolina, and Plant 9, Shelby, North Carolina, and that increased imports of articles like or directly competitive with upholstered furniture produced by the subject worker groups contributed importantly to the decline in sales and production of upholstered furniture and worker separations at Plant 6/11, Lenoir, North Carolina, and Plant 9, Shelby, North Carolina.

In accordance with the provisions of the Act, I make the following certification:

“All workers of Bernhardt Furniture Company, Plant 6/11, Lenoir, North Carolina, including on-site leased workers of the Mulberry Group and Accuforce Staffing Services, (TA-W-63, 420B), and Plant 9, Shelby, North Carolina (TA-W-63, 420C), who became totally or partially separated from employment on or after May 20, 2007, through two years from the issuance of this revised determination, are eligible to apply for Trade Adjustment Assistance under Section 223 of the Trade Act of 1974, and are eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”

Signed at Washington, DC this 20th day of November 2008.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.