E9-3733. Avid Industries, Inc. Argyle, MI; Notice of Negative Determination Regarding Application for Reconsideration

By application dated January 23, 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 January 6, 2009 and published in the Federal Register on February 2, 2009 (74 FR 5871).

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 Avid Industries, Inc., Argyle, Michigan 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.

In the request for reconsideration, the petitioner stated that the subject firm contracted a worker in December 2006 and December 2007 to perform unidentified tasks for the company. The petitioner seems to allege that because this “Contract Worker” performed some tasks for the subject firm, he should be considered as employees of the subject firm and, therefore, eligible for Trade Adjustment Assistance.

To determine whether the contracting worker was an employee of the subject firm, on-site leased worker, or a worker under the control of the subject firm and whether there was a significant proportion of workers separated or threatened with separations at the subject company during the relevant period, the Department contacted the subject firm's company official and requested employment figures for the relevant employment data (for one year prior to the date of the petition and any imminent layoffs).

The company official stated that this independent contractor was not an employee of Avid Industries, Inc., Argyle, Michigan, he was not a leased worker employed on-site of the subject firm, and there was no written contract between this worker and 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 in Washington, DC, this 4th day of February 2009.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.