DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-72,606

AMERICAN FOOD AND VENDING
SPRING HILL, TENNESSEE

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 mis-
interpretation 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, D.C., this 3rd day of May, 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-72,606

AMERICAN FOOD AND VENDING
SPRING HILL, TENNESSEE

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 October 16, 2009 by the International Union, United
Automobile, Aerospace and Agricultural Implements Workers of
America, Local 1853 on behalf of workers of American Food and
Vending, Spring Hill, Tennessee. The workers are engaged in
the provision of cafeteria and food vending services.
The petitioner alleges that due to increased imports of
foreign automobiles, General Motors (GM) at Spring Hill is
idling its plant. As GM is the only customer of the subject
firm, workers at the subject firm will be laid off when the
customer’s production stops.
With respect to Section 222(a) of the Act, the
investigation revealed that Criterion II and III have not been
met.
Criterion II has not been met because the subject firm did
not shift cafeteria or vending service abroad or acquire like or
directly competitive service from a foreign country in 2007,
2008, and January through October, 2009 over the corresponding
period in 2008.
Criterion III has not been met because the workers’
separation or threat of separation was not related to any
increase in imports or a shift in service/acquisition abroad.
With respect to Section 222(c) of the Act, the
investigation revealed that Criterion (2) has not been met
because the workers did not produce an article or supply a
service that was used by a firm with TAA-certified workers in
the production of an article that was the basis for 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 American Food and
Vending, Spring Hill, Tennessee 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 19th day of March, 2010
/s/Elliott S. Kushner
______________________________
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance






- 10 -