2010-12107. American Food and Vending Spring Hill, TN; Notice of Negative Determination Regarding Application for Reconsideration

By application dated April 6, 2010, the International Union, United Automobile, Aerospace and Agricultural Implements Workers of America, Local 1853 (Union) 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 determination was signed on March 19, 2010. The Department's Notice of determination was published in the Federal Register on April 23, 2010 (75 FR 21358).

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 negative determination applicable to workers and former workers at American Food and Vending, Spring Hill, Tennessee, was based on the findings that the subject firm did not, during the investigation period, shift to a foreign country services like or directly competitive with the cafeteria services or vending machine services supplied by the workers or acquire from a foreign country services like or directly competitive with the cafeteria services or vending machine services supplied by the workers; that the workers' separation, or threat of separation, was not related to any increase in imports of like or directly competitive services or a shift in service/acquisition abroad; and that the workers did not supply a service that was directly used in the production of an article or the supply of service by a firm that employed a worker group that is eligible to apply for TAA based on the afore-mentioned article or service.

In the request for reconsideration, the Union stated that the workers of the subject firm should be eligible for TAA because they are service workers who provided services to General Motors, Spring Hill, Tennessee, and were laid off at the same time as workers of Premier Manufacturing Support Services (a services provider to General Motors, Spring Hill, Tennessee, who were certified eligible to apply for TAA on March 12, 2010, under TA-W-72,379).

The difference in the determinations is based on the difference in the companies' relationships to the production process at General Motors, Spring Hill, Tennessee. The workers of Premier Manufacturing Support Services provided services (janitorial, maintenance, and hazardous waste disposal) that were directly involved in the production process at General Motors, Spring Hill, Tennessee. In contrast, the worker of the subject firm provided services (cafeteria services and vending machine services) that are not directly involved in the production process at General Motors, Spring Hill, Tennessee.

In the request for reconsideration, the Union also asserts that the workers “are under the operational control of the General Motors Corporation in Spring Hill, Tennessee and were considered joint employees.”

A careful review of previously-submitted information from American Food and Vending revealed no evidence that supports either of the afore-mentioned assertions. For example, the workers' wages have not been reported under any Federal Employer Identification Number (FEIN) other than the subject firm's FEIN.

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 3rd day of May 2010.

Del Min Amy Chen,

Certifying Officer, Division of Trade Adjustment Assistance.