DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-70,344

ATLANTIC SOUTHEAST AIRLINES
A SUBSIDIARY OF SKYWEST, INC.
AIRPORT CUSTOMER SERVICE DIVISION
FORT SMITH, ARKANSAS

Notice of Negative Determination
On Second Remand

On November 4, 2010, the United States Court of
International Trade (USCIT) granted the Department of Labor’s
second request for voluntary remand to conduct further
investigation in Former Employees of Atlantic Southeast Airlines,
a Subsidiary of Skywest, Inc., Airport Customer Service Division
v. United States Secretary of Labor (Court No. 09-00522).
On September 28, 2009, the Department of Labor (Department)
issued a Negative Determination regarding eligibility to apply
for Trade Adjustment Assistance (TAA) applicable to workers and
former workers of Atlantic Southeast Airlines, a Subsidiary of
Skywest, Inc., Airport Customer Division, Fort Smith, Arkansas
(subject firm). AR 35. Workers at the subject firm (subject
worker group) provided airline customer services. AR 4,8,14,37.
The Department’s Notice of determination was published in the
Federal Register on November 17, 2009 (74 FR 59251). AR 48.
For the Department to issue a certification for workers under
Section 222(a) of the Trade Act of 1974,, as amended (the Act), 19
U.S.C. § 2272(a), the following criteria must be met:
I. The first criterion (set forth in Section 222(a)(1) of the
Act, 19 U.S.C. § 2282(a)(1)) requires that a significant
number or proportion of the workers in the workers’ firm must
have become totally or partially separated or be threatened
with total or partial separation.

II. The second criterion (set forth in Section 222(a)(2) of the
Act, 19 U.S.C. § 2272(a)(2)) may be satisfied in one of two
ways:
(A) Increased Imports Path:
(i) sales or production, or both, at the workers’ firm must
have decreased absolutely, AND
(ii) (I) imports of articles or services like or directly
competitive with articles or services produced or
supplied by the workers’ firm have increased, OR
(II)(aa) imports of articles like or directly
competitive with articles into which the component
part produced by the workers’ firm was directly
incorporated have increased; OR
(II)(bb) imports of articles like or directly
competitive with articles which are produced
directly using the services supplied by the
workers’ firm have increased; OR
(III) imports of articles directly incorporating
component parts not produced in the U.S. that are
like or directly competitive with the article into
which the component part produced by the workers’
firm was directly incorporated have increased.

(B) Shift in Production or Supply Path:
(i)(I) there has been a shift by the workers’ firm to a
foreign country in the production of articles or supply
of services like or directly competitive with those
produced/supplied by the workers’ firm; OR
(i)(II) there has been an acquisition from a foreign country
by the workers’ firm of articles/services that are like
or directly competitive with those produced/supplied by
the workers’ firm.

III. The third criterion requires that the increase in imports
or shift/acquisition must have contributed importantly to
the workers’ separation or threat of separation. See
Sections 222(a)(2)(A)(iii) and 222(a)(2)(B)(ii) of the Act,
19 U.S.C. §§ 2272(a)(2)(A)(iii), 2272(a)(2)(B)(ii).

For the Department to issue a certification for adversely-
affected secondary workers under Section 222(c) of the Act, 19
U.S.C. § 2272(c), the following criteria must be met:
(1) a significant number or proportion of the workers in the
workers’ firm or an appropriate subdivision of the firm
have become totally or partially separated, or are
threatened to become totally or partially separated;

(2) the workers’ firm is a Supplier or Downstream Producer to
a firm that employed a group of workers who received a
certification of eligibility under Section 222(a) of the
Act, 19 U.S.C. § 2272(a), and such supply or production
is related to the article or service that was the basis
for such certification; and

(3) either:
(A) the workers’ firm is a supplier and the component parts
it supplied to the firm described in paragraph (2)
accounted for at least 20 percent of the production or
sales of the workers’ firm; or
(B) a loss of business by the workers’ firm with the firm
described in paragraph (2) contributed importantly to the
workers’ separation or threat of separation.

Section 222(d)(3)(A) of the Act, 19 U.S.C. §2272(d)(3)(A),
states that a “downstream producer means a firm that performs
additional, value-added production processes or services directly
for another firm for articles or services with respect to which a
group of workers in such other firm has been certified under
subsection (a).” Section 222(d)(3)(B) of the Act, 19 U.S.C.
§2272(d)(3)(B), states that “value-added production processes or
services include final assembly, finishing, testing, packaging,
or maintenance or transportation services.”
The negative determination states that, although there was a
significant proportion or number of workers of the subject firm
that were separated, the remaining criteria of Section 222(a) and
Section 222(c) of the Act were not met. AR 37. The negative
determination stated that the subject firm did not import like or
directly competitive services during the relevant period or shift
these services abroad. AR 38.
In the request for reconsideration, the petitioner alleged
that because the workers at the subject firm provided services to
individuals that are part of worker groups eligible to apply for
TAA, the workers at the subject firm should also be eligible for
TAA as “downstream producers.” AR 42,43.
The Department issued a Notice of Negative Determination
Regarding Application for Reconsideration applicable to workers
of the subject firm on November 5, 2009, based on the finding
that the petitioner did not provide new information. AR 44. The
Department’s Notice was published in the Federal Register on
December 8, 2009 (74 FR 64736). AR 54.
In the complaint to the USCIT, the Plaintiff asserted that
workers at the subject firm are eligible to apply for TAA as
secondarily affected workers, that the decline in travel in the
Forth Smith, Arkansas area is attributable to a reduction in the
operations of firms in the local area due to trade impact, and
that this decline in travel contributed to subject worker group
separations.


FIRST REMAND INVESTIGATION
During the first remand investigation, the Department
carefully reviewed previously submitted information, obtained
additional information from the subject firm, and solicited input
from the Plaintiff.
In the course of the first remand investigation, the
Plaintiff provided information alleging that trade impact caused
the layoffs in the subject worker group. SAR 9.
The Department’s findings on remand revealed that the
subject worker group provided airline customer services such as
airline ground handling, baggage, and ticketing, under contract
exclusively for Delta Air Lines (Delta). These services were
provided to individual passengers and the ticket purchases were
made by individuals, travel agencies, corporate accounts, and the
United States military. SAR 3,19,21,27,29.
The information obtained by the Department to address the
allegation that the domestic merger between Delta and Northwest
Airlines demonstrates trade impact confirmed the Department’s
findings. Subject worker group separations are attributable to
Delta ceasing operations with the subject firm at the Fort Smith,
Arkansas location, but the newly-merged airline maintained
operations out of the Fort Smith, Arkansas location using a
different airline customer service provider. Further, the
services provided by the worker group cannot be imported or
shifted abroad as they are used directly by domestic passengers.
AR 17,24,25, SAR 3,19,21,27,29.
Based on careful consideration of all previously submitted
information and new facts obtained during the first remand
investigation, the Department determined that the subject worker
group did not meet the eligibility criteria of the Act and issued
a Negative Determination on Remand on September 3, 2010. SAR 34.
The Notice of determination was published in the Federal Register
on September 21, 2010 (75 FR 57517). SAR(II) 1.
SECOND REMAND INVESTIGATION
The Department requested, and was granted, a second
voluntary remand to obtain additional information to clarify the
reason Delta ceased using services supplied by the subject firm,
to clarify “directly” for purposes related to Section
222(d)(3)(A), and to determine whether the petitioning workers
are eligible to apply for TAA.
During the second remand investigation, the Department
obtained additional information from the subject firm, SAR(II)
6,8,44-48, solicited input from the Plaintiff, SAR(II) 6,10-15,
and obtained new information from Delta regarding the reason that
it ceased using services supplied by the subject firm in its
operations at the Forth Smith airport. SAR(II) 7-9,29-42,50-52.
Information provided by Delta and the subject firm confirmed
that the subject firm failed to win a bid to continue to supply
services at the Fort Smith airport. When Delta and Northwest
Airlines merged, regional vendors were invited to submit bids to
acquire ground handling operations at the Fort Smith location.
The subject firm had the same opportunity to bid to win the
contract to supply services at the Fort Smith, Arkansas airport
as other firms, but did not win the contract. SAR(II) 46-48,51.
Section 222(d)(3)(A) of the Act requires that a “downstream
producer” perform “additional, value-added production processes
or services directly for another firm for articles or services
with respect to which a group of workers in such other firm has
been certified under subsection (a) [of Section 222 of the Act].”
Section 222(d)(3)(B) includes “transportation services” among
those services.
The Department’s interpretation of “directly” in Section
222(d)(3)(A) is that there may not be an intervening customer or
supplier. The subject firm provided services exclusively for
Delta, so Delta is the only direct recipient of the services
provided by the subject worker group. SAR(II) 46. The services
supplied by the subject firm must be to a firm that employs
workers eligible to apply for TAA on a primary certification.
Delta does not have a worker group certified as eligible to apply
for TAA, SAR(II) 53, so subject firm workers may not be certified
under the secondary worker provisions of the statute.
Further, Section 222(c)(2) of the Act does not permit
secondary worker certification unless the service provided by the
subject firm “is related to the article or service that was the
basis for such certification [under Section 222(a) of the Act].”
This clause confirms Department’s finding that it is not
necessary to survey Delta’s customers because the articles or
services those customers produce or provide are not related to
the supply of airline customer services that the subject firm
provides.
Based on a careful review of both previously-submitted
information and new information obtained during the second remand
investigation, the Department reaffirms that the petitioning
workers have not met the eligibility criteria of Section 222(c)
of the Trade Act of 1974, as amended.
Conclusion
After careful reconsideration, I affirm the original notice
of negative determination of eligibility to apply for worker
adjustment assistance for workers and former workers of Atlantic
Southeast Airlines, a Subsidiary of Skywest, Inc., Airport
Customer Division, Fort Smith, Arkansas.
Signed at Washington, D.C. this 18th day of January, 2011

/s/ Del Min Amy Chen
___________________________________
DEL MIN AMY CHEN
Certifying Officer, Office of
Trade Adjustment Assistance

4510-FN-P



DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-70,344

ATLANTIC SOUTHEAST AIRLINES
A SUBSIDIARY OF SKYWEST, INC.
AIRPORT CUSTOMER SERVICE DIVISION
INCLUDING ON-SITE LEASED WORKERS OF DELTA GLOBAL SERVICES, INC.
FORT SMITH, ARKANSAS

Negative Determination Regarding Eligibility
To Apply for Worker Adjustment Assistance

In accordance with Section 223 of the Trade Act of 1974, as
amended (“Act”), 19 U.S.C. § 2273, the Department of Labor herein
presents the results of an investigation regarding certification of
eligibility to apply for worker adjustment assistance.
Workers of a firm may be eligible for worker adjustment
assistance if they satisfy the criteria of subsection (a), (c) or
(f) of Section 222 of the Act, 19 U.S.C. § 2272(a), (c), (f). For
the Department of Labor to issue a certification for workers under
Section 222(a) of the Act, 19 U.S.C. § 2272(a), the following three
criteria must be met:
I. The first criterion (set forth in Section 222(a)(1) of the
Act, 19 U.S.C. § 2282(a)(1)) requires that a significant
number or proportion of the workers in the workers’ firm must
have become totally or partially separated or be threatened
with total or partial separation.

II. The second criterion (set forth in Section 222(a)(2) of the
Act, 19 U.S.C. § 2272(a)(2)) may be satisfied in one of two
ways:


(A) Increased Imports Path:
(i) sales or production, or both, at the workers’ firm must
have decreased absolutely, AND
(ii) (I) imports of articles or services like or directly
competitive with articles or services produced or
supplied by the workers’ firm have increased, OR
(II)(aa) imports of articles like or directly
competitive with articles into which the component
part produced by the workers’ firm was directly
incorporated have increased; OR
(II)(bb) imports of articles like or directly
competitive with articles which are produced
directly using the services supplied by the
workers’ firm have increased; OR
(III) imports of articles directly incorporating
component parts not produced in the U.S. that are
like or directly competitive with the article into
which the component part produced by the workers’
firm was directly incorporated have increased.

(B) Shift in Production or Supply Path:
(i)(I) there has been a shift by the workers’ firm to a
foreign country in the production of articles or supply
of services like or directly competitive with those
produced/supplied by the workers’ firm; OR
(i)(II) there has been an acquisition from a foreign country
by the workers’ firm of articles/services that are like
or directly competitive with those produced/supplied by
the workers’ firm.

III. The third criterion requires that the increase in imports or
shift/acquisition must have contributed importantly to the
workers’ separation or threat of separation. See Sections
222(a)(2)(A)(iii) and 222(a)(2)(B)(ii) of the Act, 19 U.S.C.
§§ 2272(a)(2)(A)(iii), 2272(a)(2)(B)(ii).

Section 222(d) of the Act, 19 U.S.C. § 2272(d), defines the
terms “Supplier” and “Downstream Producer.” For the Department to
issue a secondary worker certification under Section 222(c) of the
Act, 19 U.S.C. § 2272(c), to workers of a Supplier or a Downstream
Producer, the following criteria must be met:
(1) a significant number or proportion of the workers in the
workers’ firm or an appropriate subdivision of the firm
have become totally or partially separated, or are
threatened to become totally or partially separated;

(2) the workers’ firm is a Supplier or Downstream Producer to
a firm that employed a group of workers who received a
certification of eligibility under Section 222(a) of the
Act, 19 U.S.C. § 2272(a), and such supply or production
is related to the article or service that was the basis
for such certification; and

(3) either
(A) the workers’ firm is a supplier and the component parts
it supplied to the firm described in paragraph (2)
accounted for at least 20 percent of the production or
sales of the workers’ firm; or
(B) a loss of business by the workers’ firm with the firm
described in paragraph (2) contributed importantly to the
workers’ separation or threat of separation.

The investigation was initiated in response to a petition
filed on May 20, 2009, by three workers on behalf of workers of
Atlantic Southeast Airlines, Inc., a subsidiary of SkyWest, Inc.,
Airport Customer Service Division, Fort Smith, Arkansas
(Atlantic). The subject worker group is engaged in activities
related to airline customer service and includes on-site leased
workers of Delta Global Services, Inc. The petitioning workers
claim that Atlantic is closing several surrounding airports,
resulting in a loss of work for workers at the firm.
With respect to Section 222(a) of the Act, the investigation
revealed that criterion II and III were not met. Atlantic did
not import services like or directly competitive with the
services performed by the workers in 2007, 2008, or in January
through May 2009, nor did Atlantic shift those services abroad
during the relevant period. A customer survey was not conducted
because Atlantic’s customers are separate individuals who
purchase flight reservations through Atlantic.
With respect to Section 222(c) of the Act, the investigation
revealed that criterion II has not been met because Atlantic is not
a supplier or downstream producer to a firm with a TAA-
certification.
Finally, the group eligibility requirements under Section
222(f) of the Act, 19 U.S.C. § 2272(f), have not been satisfied
because Atlantic has not been identified in an affirmative finding
of injury by the ITC.
Conclusion
After careful review of the facts obtained in the
investigation, I determine that workers of Atlantic Southeast
Airlines, Inc., a subsidiary of SkyWest, Inc., Airport Customer
Service Division, Fort Smith, Arkansas, who perform airline
customer services are denied eligibility to apply for adjustment
assistance under Section 223 of the Act, 19 U.S.C. § 2273.
Signed in Washington, D.C., this 28th day of September, 2009

/s/Del Min Amy Chen
______________________________
DEL MIN AMY CHEN
Certifying Officer, Division of
Trade Adjustment Assistance



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