DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-70,501

CUMMINS POWER GENERATION
INCLUDING ON-SITE LEASED WORKERS OF ADECCO USA, INC., AEROTEK,
INC., THE BARTECH GROUP, BACK DIAMONDS NETWORKS, ENTEGEE,
INC., DBA MIDSTATES TECHNICAL, MANPOWER, INC., ROBERT HALF
INTERNATIONAL, SUMMIT TECHNICAL SERVICES, INC., AND
UNIVERSAL ENGINEERING SERVICES, INC.
FRIDLEY, MINNESOTA

Notice of Negative Determination
Regarding Application for Reconsideration

By application dated March 22, 2010, a representative of
the State of Minnesota 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 denial
notice was signed on February 4, 2010, and published in the
Federal Register on March 12, 2010 (75 FR 11925).
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 mis-
interpretation of facts or of the law justified
reconsideration of the decision.
The negative determination of the TAA petition filed on
behalf of workers at Cummins Power Generation, Fridley,
Minnesota, was based on the finding that the subject firm did
not import articles like or directly competitive with the
generators and transfer switches produced at the subject firm
during 2007, 2008 or during January through May 2009, nor did it
shift production of those articles abroad during the same
period. The investigation also revealed that, during the
relevant period, none of the major declining customers of the
subject firm increased imports of articles like or directly
competitive with generators and transfer switches produced at
the subject firm while decreasing purchases from the subject
firm. The investigation also revealed that the workers did not
supply a component part that was used by a firm that employed a
worker group currently eligible to apply for TAA.
The request for reconsideration included documents intended
to “illustrate how a former employee [of the subject firm] . . .
was adversely affected by trade activities and lost her
position.” The “trade activities” referred to are the subject
firm’s use of H1B visas.
This argument errs in confusing the entry of foreign
workers into the United States to produce articles at the
subject firm with the importation of articles that are like or
directly competitive with the articles produced by the subject
firm. It is the importation of like or directly competitive
articles (and not the entry of foreign workers to produce such
articles) that can serve as the basis for a TAA certification.
The petitioner did not supply facts not previously
considered or 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, D.C., this 26th day of April, 2010

/s/ Del Min Amy Chen
_____________________________
DEL MIN AMY CHEN
Certifying Officer, Division of
Trade Adjustment Assistance
4510-FN-P


DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-70,501

CUMMINS POWER GENERATION
INCLUDING ON-SITE LEASED WORKERS OF ADECCO USA, INC., AEROTEK,
INC., THE BARTECH GROUP, BACK DIAMONDS NETWORKS, ENTEGEE,
INC., DBA MIDSTATES TECHNICAL, MANPOWER, INC., ROBERT HALF
INTERNATIONAL, SUMMIT TECHNICAL SERVICES, INC., UNIVERSAL
ENGINEERING SERVICES, INC.,
FRIDLEY, MINNESOTA

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.

Workers of a firm may also be considered eligible if they
are publicly identified by name by the International Trade
Commission as a member of a domestic industry in an
investigation resulting in a category of determination that is
listed in Section 222(f) of the Act, 19 U.S.C. § 2272(f).
The group eligibility requirements for workers of a firm
under Section 222(f) of the Act, 19 U.S.C. § 2272(f), can be
satisfied if the following criteria are met:
(1) the workers’ firm is publicly identified by name by
the International Trade Commission as a member of a
domestic industry in an investigation resulting in--
(A) an affirmative determination of serious injury or
threat thereof under section 202(b)(1);
(B) an affirmative determination of market disruption
or threat thereof under section 421(b)(1); or
(C) an affirmative final determination of material
injury or threat thereof under section
705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of
1930 (19 U.S.C. 1671d(b)(1)(A) and
1673d(b)(1)(A));
(2) the petition is filed during the 1-year period
beginning on the date on which--
(A) a summary of the report submitted to the
President by the International Trade Commission
under section 202(f)(1) with respect to the
affirmative determination described in paragraph
(1)(A) is published in the Federal Register under
section 202(f)(3); or
(B) notice of an affirmative determination described
in subparagraph (1) is published in the Federal
Register; and
(3) the workers have become totally or partially
separated from the workers’ firm within--
(A) the 1-year period described in paragraph (2); or
(B) notwithstanding section 223(b)(1), the 1-year
period preceding the 1-year period described in
paragraph (2).

The investigation was initiated in response to a petition
filed on May 22, 2009 by a State Workforce Official on behalf
of the workers of Cummins Power Generation, Fridley, Minnesota.
The workers are engaged in activities related to the production
of generators and transfer switches. The workers are not
separately identifiable by product. The worker group includes
on-site leased workers from Adecco USA, Inc., Aerotek, Inc., The
Bartech Group, Black Diamonds Networks, Entegee, Inc., dba Mid-
States Technical, Manpower, Inc., Robert Half International,
Summit Technical Services, Inc., and Universal Engineering
Services, Inc. The petitioner alleged that global market has
again affected the subject firm’s ability to stay open in the
state of Minnesota.
With respect to Section 222(a) of the Act, the
investigation revealed that Criterion II has not been met. The
subject firm did not import products like or directly
competitive with the products produced at the subject firm
during 2007, 2008 or during January through May 2009 or shift
production of these products abroad during the same period.
The Department surveyed the subject firm’s major
declining customers regarding purchases of generators and
transfer switches during 2007, 2008, and in January through
May 2009. The survey revealed that no customer increased
imports of generators and transfer switches while decreasing
purchases from the subject firm during the relevant period.
With respect to Section 222(c) of the Act, the
investigation revealed that Criterion 2 has not been met. The
workers did not supply a product that was used by a firm with
a Trade Adjustment Assistance (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 the workers’ firm has not been identified in an
affirmative finding of injury by the International Trade
Commission.


Conclusion
After careful review of the facts obtained in the
investigation, I determine that workers of Cummins Power
Generation, including on-site leased workers of Adecco USA,
Inc., Aerotek, Inc., The Bartech Group, Black Diamonds Networks,
Entegee, Inc., dba Mid-States Technical, Manpower, Inc., Robert
Half International, Summit Technical Services, Inc., and
Universal Engineering Services, Inc., Fridley, Minnesota, who
were engaged in activities related to the production of
generators and transfer switches 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 24th day of February, 2010.

/s/Elliott S. Kushner
______________________________
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance



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