E8-8983. Bodycote Materials Testing, Inc., Engineering and Technology Division, Hillsdale, MI; Notice of Negative Determination Regarding Application for Reconsideration

By application dated March 6, 2008, 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 February 8, 2008 and published in the Federal Register on February 22, 2008 (73 FR 9836).

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 Bodycote Materials Testing, Inc., Engineering and Technology Division, Hillsdale, Michigan was based on the finding that the worker group does not produce an article within the meaning of Section 222 of the Trade Act of 1974.

The petitioner states that services provided by workers at the subject firm “are integral to the production of an automobile”. The petitioner further states that the workers of the subject firm “produce data (written certification) that is used to determine if the product does meet the requirements.”

The petitioner alleges that because all manufacturers of automotive products are required to test their products independently using the services provided by such companies as Bodycote Materials Testing, Inc., workers of the subject firm who provide the testing services should be certified eligible for TAA.

The investigation revealed that the workers of Bodycote Materials Testing, Inc., Engineering and Technology Division, Hillsdale, Michigan are engaged in testing services to the automotive, appliance, and general industrial markets. These functions, as described above, are not considered production of an article within the meaning of Section 222 of the Trade Act.

Any incidental documents, such as written certifications, generated as a result of testing of the equipment are incidental to the services provided by the subject firm. The fact that a written record is generated in the process does not make the service firm a production firm and these documents do not constitute production of an article for purposes of the Trade Act.

The petitioner also states that Bodycote intends to move jobs to Mexico and Canada.

The allegation of a shift to another country might be relevant if it was determined that workers of the subject firm produced an article. However, the investigation determined that workers of Bodycote Materials Testing, Inc., Engineering and Technology Division, Hillsdale, Michigan do not produce an article within the meaning of Section 222 of the Trade Act of 1974.

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 26th day of March 2008.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.