2011-13788. International Business Machines (IBM), Sales and Distribution Business Unit, Global Sales Solution Department, Division 91, Off-Site Teleworker in Armonk, NY; Notice of Negative Determination on Reconsideration

On April 6, 2011, the Department of Labor issued an Affirmative Determination Regarding Application for Reconsideration for the workers and former workers of International Business Machines (IBM), Sales and Distribution Business Unit, Global Sales Solution Department, off-site teleworker, Centerport, New York. The Department's Notice was published in the Federal Register on April 14, 2011 (76 FR 21033). The request for reconsideration alleges that IBM outsourced to India and China.

During the reconsideration investigation, it was revealed that the subject firm was mischaracterized. During the reconsideration investigation, the Department determined that the correct subject firm name and location is International Business Machines (IBM), Sales and Distribution Business Unit, Global Sales Solution Department, Division 91, off-site teleworker, Armonk, New York. The subject worker group supply computer software development and maintenance services to the Sales and Distribution Business Unit within IBM.

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 initial negative determination was based on the findings that Section 222(a) and Section 222(c) of the Trade Act of 1974, as amended (the Act) have not been satisfied because fewer than three workers were totally or partially separated and further separations are not threatened. The investigation also revealed that the group eligibility requirements under Section 222(f) of the Act have not been satisfied because the workers' firm has not been identified by name in an affirmative finding of injury by the International Trade Commission.

29 CFR 90.2 states that a significant number or proportion of the workers means at least three (3) workers in a firm (or appropriate subdivision thereof) with a workforce of fewer than 50 workers, or five (5) percent of the workers or 50 workers, whichever is less, in a workforce of 50 or more workers.

A careful review of the administrative record and additional information obtained by the Department during the reconsideration investigation confirmed that the group eligibility requirements under Section 222(a) and (c) of the Act have not been met because fewer than three workers were totally or partially separated from IBM, Sales and Distribution Business Unit, Global Sales Solution Department, Division 91, or threatened with such separation. Moreover, new information obtained during the reconsideration investigation confirmed that only one person worked within Division 91 of the Sales and Distribution Department (working on-site at Armonk, New York or reporting remotely to Armonk, New York).

Conclusion

After reconsideration, I affirm the original notice of negative determination of eligibility to apply for worker adjustment assistance for workers and former workers of International Business Machines (IBM), Sales and Distribution Business Unit, Global Sales Solution Department, Division 91, off-site teleworker, Armonk, New York.

Signed in Washington, DC, on this 23rd day of May, 2011.

Del Min Amy Chen,

Certifying Officer, Office of Trade Adjustment Assistance.