Petitioner Type: Workers
Impact Date: 11/13/2001
Filed Date: 11/19/2002
Most Recent Update: 03/26/2003
Determination Date: 03/26/2003
Expiration Date: 05/10/2008
Other Worker Groups on This Petition
DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-50,129
IBM CORPORATION
GLOBAL SERVICES DIVISION
PISCATAWAY, NEW JERSEY
TA-W-50,129A
IBM CORPORATION
GLOBAL SERVICES DIVISION
MIDDLETOWN, NEW JERSEY
Notice of Revised Determination
On Remand
On April 10, 2006, the United States Court of International
Trade (USCIT) granted a consent motion for partial voluntary
remand in Former Employees of IBM Corporation, Global Services
Division v. U.S. Secretary of Labor, Court No. 03-00656.
On November 13, 2002, a petition for Trade Adjustment
Assistance (TAA) was filed with the U.S. Department of Labor
(Department) on behalf of workers at IBM Corporation, Global
Services Division, Piscataway, New Jersey, and Middletown, New
Jersey (the subject firm). The petitioning workers alleged that
the subject firm was shifting computer software production to
Canada and importing those products from Canada. Workers are
software developers who write and test computer software.
The Department determined that the workers did not produce
an article within the meaning of Section 222 of the Trade Act.
The Department’s determination was issued on March 26, 2003. The
Notice of determination was published in the Federal Register on
April 7, 2003 (68 FR 16834).
On April 29, 2003, a petitioner requested administrative
reconsideration of the Department's negative determination
regarding eligibility for the subject workers to apply for TAA.
The Department’s Notice of Negative Determination Regarding
Application for Reconsideration was issued on June 26, 2003, and
published in the Federal Register on July 15, 2003 (68 FR 41845).
On September 11, 2003, the Plaintiffs requested review by
the USCIT. On December 9, 2005, the Department issued its Notice
of Negative Determination on Remand, finding that the subject
workers are not engaged in the production of an article or
support of an article. The Notice was published in the Federal
Register on December 21, 2005 (70 FR 75837).
Since the publication of the last remand determination,
the Department has revised its policy to acknowledge that, at
least in the context of this case, there are tangible and
intangible articles and to clarify that the production of
intangible articles can be distinguished from the provision
of services. Software and similar intangible goods that
would have been considered articles, for the purposes of the
Trade Act, if embodied in a physical medium will now be
considered to be articles regardless of their method of
transfer.
The Department stresses that it will continue to implement
the longstanding precedent that firms must produce an article to
be certified under the Trade Act. This determination is not
altered by the fact the provision of a service may result in the
incidental creation of an article. Because the revised policy
may have implications beyond this case of which the Department is
not fully cognizant, it will be further developed in rulemaking.
Therefore, due to the Department’s policy change, the
Department requested the second remand to conduct an
investigation to determine whether the subject workers are
eligible to apply for trade adjustment assistance.
Reviewing previously-submitted information through the
lens of the revised policy, the Department has determined
that, for purposes of the Trade Act, the subject workers
produce an article (computer software). During the relevant
period, a significant portion of workers was separated from
the Piscataway, New Jersey facility and production shifted
to an affiliated facility located in Canada; a significant
portion of workers was separated from the Middletown, New
Jersey facility and production shifted to an affiliated
facility located in Canada.
Conclusion
After careful review of the facts generated through the
second remand investigation, I determine that a shift in
production of software like or directly competitive to that
produced at the subject facilities to Canada contributed to the
total or partial separation of a significant number or
proportion of workers at the subject facilities. In accordance
with the provisions of the Act, I make the following
certification:
"All workers of IBM Corporation, Global Services
Division, Piscataway, New Jersey (TA-W-50,129), and
Middletown, New Jersey (TA-W-50,129A), who became totally
or partially separated from employment on or after
November 13, 2001, through two years from the issuance of
this revised determination, are eligible to apply for
Trade Adjustment Assistance under Section 223 of the
Trade Act of 1974."
Signed at Washington, D.C. this 10th day of May 2006.
/s/ Elliott S. Kushner
_______________________________
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance
DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-50,129
IBM CORPORATION
GLOBAL SERVICES DIVISION
PISCATAWAY, NEW JERSEY
TA-W-50,129A
IBM CORPORATION
GLOBAL SERVICES DIVISION
MIDDLETOWN, NEW JERSEY
Negative Determination Regarding Eligibility
To Apply For Worker Adjustment Assistance
In accordance with Section 223 of the Trade Act of 1974, as
amended (19 USC 2273), the Department of Labor herein presents the
results of an investigation regarding certification of eligibility
to apply for worker adjustment assistance.
The investigation was initiated on November 19, 2002, in
response to a petition filed on behalf of workers of IBM
Corporation, Global Services Division, Piscataway and Middletown,
New Jersey. The workers performed analysis and maintenance of
computer software and information systems.
The investigation revealed that the petitioning workers of
this firm or subdivision do not produce an article within the
meaning of Section 222(c)(3) of the Act. The Department of Labor
has consistently determined that the performance of services does
not constitute production of an article, as required by Section 222
of the Trade Act of 1974, and this determination has been upheld in
the U.S. Court of Appeals.
Workers at the firm or subdivision may be certified only if
their separation was caused importantly by a reduced demand for
their services from a parent firm, a firm otherwise related to
their firm by ownership, or a firm related by control. Addition-
ally, the reduction in demand for services must originate at a
production facility whose workers independently meet the statutory
criteria for certification, and the reduction must directly relate
to the product impacted by imports. These conditions have not been
met for workers at this firm.
Conclusion
After careful review, I determine that all workers of IBM
Corporation, Global Services Division, Piscataway and Middletown,
New Jersey are denied eligibility to apply for adjustment
assistance under Section 223 of the Trade Act of 1974, as amended.
Signed in Washington, D. C. this 26th day of March 2003
/s/Richard Church
_______________________________
Richard Church
Certifying Officer, Division of
Trade Adjustment Assistance
Employment and Training Administration
TA-W-50,129
IBM CORPORATION
GLOBAL SERVICES DIVISION
PISCATAWAY, NEW JERSEY
TA-W-50,129A
IBM CORPORATION
GLOBAL SERVICES DIVISION
MIDDLETOWN, NEW JERSEY
Notice of Revised Determination
On Remand
On April 10, 2006, the United States Court of International
Trade (USCIT) granted a consent motion for partial voluntary
remand in Former Employees of IBM Corporation, Global Services
Division v. U.S. Secretary of Labor, Court No. 03-00656.
On November 13, 2002, a petition for Trade Adjustment
Assistance (TAA) was filed with the U.S. Department of Labor
(Department) on behalf of workers at IBM Corporation, Global
Services Division, Piscataway, New Jersey, and Middletown, New
Jersey (the subject firm). The petitioning workers alleged that
the subject firm was shifting computer software production to
Canada and importing those products from Canada. Workers are
software developers who write and test computer software.
The Department determined that the workers did not produce
an article within the meaning of Section 222 of the Trade Act.
The Department’s determination was issued on March 26, 2003. The
Notice of determination was published in the Federal Register on
April 7, 2003 (68 FR 16834).
On April 29, 2003, a petitioner requested administrative
reconsideration of the Department's negative determination
regarding eligibility for the subject workers to apply for TAA.
The Department’s Notice of Negative Determination Regarding
Application for Reconsideration was issued on June 26, 2003, and
published in the Federal Register on July 15, 2003 (68 FR 41845).
On September 11, 2003, the Plaintiffs requested review by
the USCIT. On December 9, 2005, the Department issued its Notice
of Negative Determination on Remand, finding that the subject
workers are not engaged in the production of an article or
support of an article. The Notice was published in the Federal
Register on December 21, 2005 (70 FR 75837).
Since the publication of the last remand determination,
the Department has revised its policy to acknowledge that, at
least in the context of this case, there are tangible and
intangible articles and to clarify that the production of
intangible articles can be distinguished from the provision
of services. Software and similar intangible goods that
would have been considered articles, for the purposes of the
Trade Act, if embodied in a physical medium will now be
considered to be articles regardless of their method of
transfer.
The Department stresses that it will continue to implement
the longstanding precedent that firms must produce an article to
be certified under the Trade Act. This determination is not
altered by the fact the provision of a service may result in the
incidental creation of an article. Because the revised policy
may have implications beyond this case of which the Department is
not fully cognizant, it will be further developed in rulemaking.
Therefore, due to the Department’s policy change, the
Department requested the second remand to conduct an
investigation to determine whether the subject workers are
eligible to apply for trade adjustment assistance.
Reviewing previously-submitted information through the
lens of the revised policy, the Department has determined
that, for purposes of the Trade Act, the subject workers
produce an article (computer software). During the relevant
period, a significant portion of workers was separated from
the Piscataway, New Jersey facility and production shifted
to an affiliated facility located in Canada; a significant
portion of workers was separated from the Middletown, New
Jersey facility and production shifted to an affiliated
facility located in Canada.
Conclusion
After careful review of the facts generated through the
second remand investigation, I determine that a shift in
production of software like or directly competitive to that
produced at the subject facilities to Canada contributed to the
total or partial separation of a significant number or
proportion of workers at the subject facilities. In accordance
with the provisions of the Act, I make the following
certification:
"All workers of IBM Corporation, Global Services
Division, Piscataway, New Jersey (TA-W-50,129), and
Middletown, New Jersey (TA-W-50,129A), who became totally
or partially separated from employment on or after
November 13, 2001, through two years from the issuance of
this revised determination, are eligible to apply for
Trade Adjustment Assistance under Section 223 of the
Trade Act of 1974."
Signed at Washington, D.C. this 10th day of May 2006.
/s/ Elliott S. Kushner
_______________________________
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance
DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-50,129
IBM CORPORATION
GLOBAL SERVICES DIVISION
PISCATAWAY, NEW JERSEY
TA-W-50,129A
IBM CORPORATION
GLOBAL SERVICES DIVISION
MIDDLETOWN, NEW JERSEY
Negative Determination Regarding Eligibility
To Apply For Worker Adjustment Assistance
In accordance with Section 223 of the Trade Act of 1974, as
amended (19 USC 2273), the Department of Labor herein presents the
results of an investigation regarding certification of eligibility
to apply for worker adjustment assistance.
The investigation was initiated on November 19, 2002, in
response to a petition filed on behalf of workers of IBM
Corporation, Global Services Division, Piscataway and Middletown,
New Jersey. The workers performed analysis and maintenance of
computer software and information systems.
The investigation revealed that the petitioning workers of
this firm or subdivision do not produce an article within the
meaning of Section 222(c)(3) of the Act. The Department of Labor
has consistently determined that the performance of services does
not constitute production of an article, as required by Section 222
of the Trade Act of 1974, and this determination has been upheld in
the U.S. Court of Appeals.
Workers at the firm or subdivision may be certified only if
their separation was caused importantly by a reduced demand for
their services from a parent firm, a firm otherwise related to
their firm by ownership, or a firm related by control. Addition-
ally, the reduction in demand for services must originate at a
production facility whose workers independently meet the statutory
criteria for certification, and the reduction must directly relate
to the product impacted by imports. These conditions have not been
met for workers at this firm.
Conclusion
After careful review, I determine that all workers of IBM
Corporation, Global Services Division, Piscataway and Middletown,
New Jersey are denied eligibility to apply for adjustment
assistance under Section 223 of the Trade Act of 1974, as amended.
Signed in Washington, D. C. this 26th day of March 2003
/s/Richard Church
_______________________________
Richard Church
Certifying Officer, Division of
Trade Adjustment Assistance