Former Employees of Swiss Industrial Abrasives v. United States

19 Ct. Int'l Trade 649
CourtUnited States Court of International Trade
DecidedMay 5, 1995
DocketCourt No. 92-08-00547
StatusPublished

This text of 19 Ct. Int'l Trade 649 (Former Employees of Swiss Industrial Abrasives v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Former Employees of Swiss Industrial Abrasives v. United States, 19 Ct. Int'l Trade 649 (cit 1995).

Opinion

Memorandum and Order

Goldberg, Judge:

This action comes before the court on plaintiffs’ renewed motion for judgment on the agency record. The court previously remanded this action to the United States Department of Labor (“Labor”) with instructions to reconsider plaintiffs’ petition for certification of eligibility for trade adjustment assistance (“TAA”). Former Employees of Swiss Industrial Abrasives v. United States, 17 CIT 945, 830 F. Supp. 637 (1993) (“Swiss Abrasives I”). After conducting a new investigation pursuant to the court’s instructions in Swiss Abrasives I, Labor returned a negative determination denyingplaintiffs’ petition for certification of eligibility for TAA. Plaintiffs now contest Labor’s remand determination. The court exercises its jurisdiction pursuant to 28 U.S.C. § 1581(d)(1) (1988).

Background

On January 16, 1992, Ms. Naida Thomas, President of Local 411 of the International Chemical Workers Union, filed a petition for certification of eligibility for TAA with the Office of Trade Adjustment Assistance, U.S. Department of Labor, on behalf of all the former workers of Swiss Industrial Abrasives, Alliance, Ohio (“SIA Ohio”). Public Record at 2.

[650]*650The petition stated that the employees produced abrasives in all forms, including various belts, sheets, discs, rolls, and jumbo rolls at the SIA Ohio plant. Id. The petition also stated that layoffs began at the plant in December 1990, and that 165 hourly workers and management would be released by the scheduled closing of the plant on February 4, 1992. Id. The petition alleged that the plant was closing because of increased imports from SIA Ohio’s parent company, Swiss Industrial Abrasives of Switzerland (“SIA Switzerland”). Id.

In response to plaintiffs’ petition, Labor initiated an investigation of the SIA Ohio plant. The period of investigation relevant to the petition was 1990 and 1991. See Public Record at 14-17. Labor discovered that a domestic abrasives manufacturer, Sancap Abrasives, Inc. of Alliance, Ohio (“Sancap”) had expressed interest in acquiring the SIA Ohio plant. Id. at 23. Labor obtained a copy of an Agreement for Sale & Purchase of Business Assets (“Sale Agreement”) in connection with the proposed purchase of SIA Ohio’s assets by Sancap, which was dated December 31, 1991.1 Labor also obtained a copy of a Distribution Agreement between SIA Switzerland and Sancap. [ ] Confidential Record at 29-46. The SIA Ohio plant ultimately closed on February 4,1992, and Sancap subsequently assumed operation of the plant.

In addition, Labor conducted a survey of three former customers of SIA Ohio, in which it collected import information for 1990 and 1991. This survey indicated to Labor that these former customers had not substituted imported abrasives for purchases from SIA Ohio in 1990 or 1991. Public Record at 23; see also Confidential Record at 47-54. Relying primarily on the survey, Labor concluded that the third criterion of § 222 of the Trade Act of 1974, which requires that increases in imports “contribute! ] importantly” to the layoffs, had not been satisfied. Public Record at 56. Consequently, on April 14,1992, Labor determined that the workers formerly employed at SIA Ohio were not eligible to receive worker assistance and issued a Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance. See Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, 57 Fed. Reg. 15,331 (Apr. 27, 1992).

On April 21,1992, petitioners filed arequest for administrative reconsideration of Labor’s notice of negative determination. Public Record at 60-61. Petitioners stated that, before 1980, SIA Ohio had manufactured all of its own products. Id. at 60. After SIA Ohio was purchased by SIA Switzerland, however, petitioners alleged that SIA Ohio began to import more and more products until the plant closed on February 4,1992. Id.

In response to petitioner’s request for reconsideration, Labor obtained statistical information regarding imports and sales from SIA Switzerland and Sandcap. The information provided by SIA Switzerland indicated to Labor that: [ [651]*651]. Confidential Record at 66. Based on information from SIA Switzerland and its prior survey, Labor denied petitioners’ request for rehearing on July 24,1992. SIA of America, Alliance, Ohio; Negative Determination Regarding Application for Reconsideration, 57 Fed. Reg. 34,318 (Aug. 4, 1992).

Petitioners then filed a motion for judgment on the agency record with this court. Upon review, the court found several inadequacies in the statistical information obtained by Labor from SIA Switzerland. See Swiss Abrasives I, 17 CIT 950, 830 F. Supp. at 641-42. The court also found that, although the Sale and Distribution Agreements comprised much of the material in the administrative record, Labor failed to analyze them fully. In particular, Labor failed to explore whether there was an overall market strategy by SIA Switzerland to gradually phase out domestic production in favor of imports. See id.

The court therefore remanded plaintiffs’ action and instructed Labor to reexamine petitioners’ claim that imports from SIA Switzerland of like or competitive products caused production and employment to fall at the SIA Ohio plant. Upon remand, Labor was instructed to: (1) analyze verified import and production data, based on volume rather than value, that was sufficiently broken down along product lines to reflect the impact of imports from SIA Switzerland upon production at SIA Ohio; and (2) take into account the Sale and Distribution Agreements contained in the record. Swiss Abrasives I, 17 CIT at 950, 830 F. Supp. at 642.

On remand, Labor collected additional information from Sancap concerning SIA Ohio’s production, sales, and imports.2 Based on the results of its remand investigation, Labor affirmed its initial negative determination on November 22,1993. Supplemental Public Record at 43-47. Thereafter, plaintiffs renewed their motion for judgment upon the agency record. Upon review, the court denies plaintiffs’ motion for judgment on the agency record and affirms Labor’s negative determination.

Discussion

The question presented to the court is whether Labor’s negative remand determination is supported by substantial evidence and is otherwise in accordance with law. Former Employees of General Elec. Corp. v. United States Dep’t of Labor, 14 CIT 608, 611 (1990) (citations omitted). Substantial evidence is more than a mere scintilla; it is such evidence that reasonably supports a conclusion. Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff’d, 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987). An assessment of the sub-stantiality of record evidence must take into account whatever else in the record fairly detracts from its weight. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Thus, the court must consider the record as a whole. See id.

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Related

Ceramica Regiomontanam, S.A. v. United States
636 F. Supp. 961 (Court of International Trade, 1986)
Former Employees of Swiss Industrial Abrasives v. United States
17 Ct. Int'l Trade 945 (Court of International Trade, 1993)

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19 Ct. Int'l Trade 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/former-employees-of-swiss-industrial-abrasives-v-united-states-cit-1995.