03-8348. Bechtel Jacobs Company LLC, Piketon, OH; Notice of Negative Determination Regarding Application for Reconsideration

By application received on August 15, 2002, an attorney acting on behalf of the Paper, Allied-Industrial, Chemical and Energy International Union, Local 5-689, 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 Bechtel Jacobs Company LLC, Piketon, Ohio was signed on July 1, 2002, and published in the Federal Register on July 18, 2002 (67 FR 47400).

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 was filed on behalf of workers at Bechtel Jacobs Company LLC, Piketon, Ohio engaged in activities related to the environmental management services and site restoration activities. The petition was denied because the petitioning workers did not produce an article within the meaning of Section 222(3) of the Act.

The union alleges that laid off workers at Bechtel Jacobs Company LLC, Piketon, Ohio were in direct support of United States Enrichment Corporation (USEC), which is currently TAA certified. The union proceeds to assert that, because the union secured “bumping” rights for laid-off workers of USEC (allowing them seniority rights in obtaining positions with Bechtel Jacobs), this tie to the TAA certified firm validates the petitioning workers' eligibility. The union also asserts that, as all union-represented employees of Bechtel Jacobs are fomer employees of USEC, the import impact on the certified firm has a direct bearing on the petitioning worker group.

There is no legal affiliation between Bechtel Jacobs and the TAA certified firm. In fact, the union lawyer attests to this, stating that the two companies are “separate legal entities”. The existence of bumping rights (as established by a union) does not meet the connection required for petitioning worker eligibility based on affiliation to a TAA certified firm.

The petitioner further asserts that, because workers at Bechtel Jacobs are entirely reliant on production levels at USEC, the subject firm workers should be certified.

The fact that service workers are dependant on the production of a trade certified firm does not automatically make the service workers eligible for trade adjustment assistance. Before service workers can be considered eligible for TAA, they must be in direct support of an affiliated TAA certified facility. This is not the case for the Bechtel Jacobs LLC.

Only in very limited instances are service workers certified for TAA, namely the worker separations must be caused by a reduced demand for their services from a parent or controlling firm or subdivision whose workers produce an article and who are under certification for TAA.

The petitioner appears to assert that workers laid off from Bechtel Jacobs are being denied eligibility for TAA because they chose to be employed, because if they had refused jobs at Bechtel Jacobs following their lay off from USEC, they would be considered eligible for TAA benefits.

Worker eligibility that is determined by layoffs that occurred at a firm that precedes the last place of employment is determined by the state on an individual basis to determine if the worker(s) meet the various factors under the existing certification during the relevant period.

Finally, the petitioner alleges that in a previous TAA certification of USEC (TA-W-37, 599A), a petition on behalf of workers at Bechtel Jacobs was withdrawn at the request of the Department. The petitioner further asserts that this request for withdrawal was due to the fact that there was already an existing TAA certification on behalf of workers at USEC. In essence, the union asserts that they were informed by the Department that workers of Bechtel Jacobs would be considered part of the petitioning worker group at USEC. As a result of this precedent, the petitioner concludes that the Department itself identified a connection between Bechtel Jacobs and USEC that established grounds for petitioning worker eligibility for TAA benefits in the current investigation.

The TAA termination of the previous case (TA-W-39, 052) relates to the discovery that, during the verification process, it was revealed that the Bechtel Jacobs LLC workers were employed by USEC and terminated during the relevant period of the USEC TAA certification and thus could be considered eligible under that certification. Since the workers were impacted at USEC during the relevant period, those workers may qualify as terminated workers and thus meet the eligibility requirements as laid off workers of USEC during the relevant period. Thus the decision was made by the Union to withdraw the petition at that time since the workers could qualify under the USEC TAA certification.

Therefore, the petitioning group of workers transfer from USEC to a new company (Bechtel Jacobs) doesn't qualify a TAA certification under the name of Bechtel Jacobs. Bechtel Jacobs workers who were eligible for trade adjustment assistance in the USEC certification met eligibility requirements only because they had been separated from USEC, and thus the state was able to qualify the Bechtel Jacobs workers as separated USEC employees.

As already indicated, since the petitioning worker group in this investigation was not engaged in production, but performed a service (environmental management services and site restoration activities) for an unaffiliated firm, they do not qualify for eligibility under the Trade Act of 1974.

Conclusion

In conclusion, the workers at the subject firm did not produce an article within the meaning of Section 222(3) of the Trade Act of 1974.

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 18th day of March, 2003.

Edward A. Tomchick,

Director, Division of Trade Adjustment Assistance.