Petitioner Type: Unknown
Impact Date:
Filed Date: 10/26/2009
Most Recent Update: 07/16/2010
Determination Date: 07/16/2010
Expiration Date:
DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-72,673
WEATHER SHIELD MANUFACTURING, INC.
CORPORATE OFFICE
MEDFORD, WISCONSIN
Notice of Negative Determination
On Third Remand
On May 31, 2012, the United States Court of International
Trade (USCIT) ordered the United States Department of Labor
(Department) to conduct further investigation in Former Employees
of Weather Shield Manufacturing, Inc. v. United States Secretary of
Labor (Court No. 10-00299).
The group eligibility requirements for workers of a firm under
Section 222(a) of the Trade Act of 1974, as amended (the Act), 19
U.S.C. § 2272(a), can be satisfied if the following criteria are
met:
(1) a significant number or proportion of the workers in such
workers’ firm have become totally or partially separated, or are
threatened to become totally or partially separated; and
(2)(A)(i) the sales or production, or both, of such firm have
decreased absolutely;
(ii)(I) imports of articles or services like or directly
competitive with articles produced or services supplied
by such firm have increased;
(II) imports of articles like or directly
competitive with articles—
(aa) into which one or more component parts produced
by such firm are directly incorporated, or
(bb) which are produced directly using services
supplied by such firm,
have increased; or
(III) imports of articles directly incorporating one
or more component parts produced outside the United
States that are like or directly competitive with
imports of articles incorporating one or more
component parts produced by such firm have increased;
and
(iii) the increase in imports described in clause (ii)
contributed importantly to such workers’ separation or
threat of separation and to the decline in the sales or
production of such firm; or
(B)(i)(I) there has been a shift by such workers’ firm to a
foreign country in the production of articles or the supply of
services like or directly competitive with articles which are
produced or services which are supplied by such firm; or
(II) such workers’ firm has acquired from a foreign
country articles or services that are like or directly
competitive with articles which are produced or
services which are supplied by such firm; and
(ii) the shift described in clause (i)(I) or the acquisition
of articles or services described in clause (i)(II) contributed
importantly to such workers’ separation or threat of
separation.
BACKGROUND
The initial investigation began on October 23, 2009 when three
workers filed a petition for Trade Adjustment Assistance (TAA) on
behalf of workers and former workers of the Weather Shield
Manufacturing, Inc., Corporate Office, Medford, Wisconsin (subject
facility). Workers at the subject facility (subject worker group)
supply administrative support services related to the production of
doors and windows at various domestic locations of Weather Shield
Manufacturing, Inc. (hereafter referred to as “subject firm” or
“Weather Shield”).
29 CFR 90.2 states that “Increased imports means that imports
have increased either absolutely or relative to domestic production
compared to a representative base period. The representative base
period shall be one year consisting of the four quarters
immediately preceding the date which is the twelve month prior to
the date of the petition.” As such, the relevant time period for
this investigation is October 2008 through September 2009, and the
representative base period is October 2007 through September 2008
(hereafter referred to as “relevant time period” or “period under
investigation”).
The initial investigation revealed that neither the subject
firm nor its customers increased import purchases of either doors
or windows (or like or directly competitive articles) during the
relevant time period. Additionally, the subject firm had not
shifted abroad either the production of these articles or services
like or directly competitive with those supplied by the worker
group in the period under investigation. As such, the group
eligibility requirements were not satisfied, and the Department
issued a negative determination on July 16, 2010. The Department’s
Notice of Negative Determination was published in the Federal
Register on August 2, 2010 (75 FR 45163). Updated Administrative
Record (UAR) 611. The Department filed the UAR with the USCIT on
October 31, 2011.
By application dated August 23, 2010, one of the petitioners
requested administrative reconsideration of the Department’s
negative determination. In the application, the petitioner stated
that the worker group covered by petition TA-W-72,673 was impacted
by the same import competition as the worker group covered by TAA
certification TA-W-64,725, which was issued on August 9, 2010
(Weather Shield Manufacturing, Inc., Corporate Office, Medford,
Wisconsin; petition dated December 17, 2008) and argued that the
same conclusion awarding worker adjustment assistance should be
applied in the case at hand. However, because it was determined
that a different relevant time period was at issue which resulted
in a different conclusion, the Department determined that the
determination in TA-W-64,725 was not controlling.
Because the Department determined that administrative
reconsideration could not be granted, a Notice of Negative
Determination Regarding Application for Reconsideration was issued
on September 10, 2010, in accordance with 29 CFR 90.18(c). The
Department’s Notice of Negative Determination Regarding Application
for Reconsideration was published in the Federal Register on
September 21, 2010 (75 FR 57519). UAR 653.
Subsequently, the petitioners filed a complaint with the USCIT
on October 8, 2010, and argued the same allegations as in their
request for administrative reconsideration. The Department
determined that further investigation under judicial review was
unjustified and filed an administrative record of the materials
upon which the Department relied in making its determination with
regards to the subject worker group’s eligibility to apply for TAA.
In Plaintiffs’ Motion to Supplement the Administrative Record,
dated March 30, 2011, Plaintiffs indicated that the administrative
record did not include documentation that adequately supported the
negative determination and submitted additional information to be
considered by the Department to show that Weather Shield faced
import competition.
FIRST REMAND ACTIVITY
On May 2, 2011, the Department filed a Motion for Voluntary
Remand in which it sought to supplement the administrative record
with documentation that was used in the decision making process for
case TA-W-64,725 and explain the relevance of this material. At
that time, the Department did not seek to conduct further
investigation. Rather, the Department amended the administrative
record on June 3, 2011 to include documents from case TA-W-64,725
and supplemented the record with an explanation regarding the
relevance of these documents.
The Plaintiffs filed a Memorandum of Points and Authorities in
Support of Plaintiffs’ Amended Motion for Judgment on the Agency
Record on July 5, 2011 in which they asked the Department to
conduct further investigation and apply the same methodology for
administering customer surveys and determining import competition
as in the TA-W-64,725 remand investigation. Specifically, the
Plaintiffs stated that the Department should collect additional
information from the subject firm’s customers and competitors.
SECOND REMAND ACTIVITY
On August 3, 2011, the Department requested a second voluntary
remand to conduct further investigation, to permit the Plaintiffs
to submit additional evidence, and to supplement the administrative
record with all the contents of the TA-W-64,725 case record.
During the second remand investigation, the Department collected
additional information from the subject firm, conducted an expanded
customer survey, collected aggregate U.S. import data, and sought
input from the Plaintiffs.
The Department found that imports of Weather Shield’s
customers had declined during the relevant time period. The updated
data also revealed that, contrary to information that had been
provided previously, the subject firm’s total sales for the
relevant time period increased. As such, the Department determined
that worker separations were not related to trade impact and
reaffirmed the negative determination regarding TAA eligibility. On
October 11, 2011 the Department issued a Negative Determination on
Remand. The Department’s Notice of Negative Determination was
published in the Federal Register on November 15, 2011 (76 FR
70761). Supplemental Updated Administrative Record (SUAR) 501-505.
THIRD REMAND ACTIVITY
On December 2, 2011, Plaintiffs filed a Memorandum of Points
and Authorities in Support of Plaintiffs’ Second Amended Motion for
Judgment on the Agency Record. The Plaintiffs contended that the
Department had not fully investigated the change in sales reported
by Weather Shield; had not fully investigated if Weather Shield
lost business to competitor Simpson Door Company, whose workers
were eligible to apply for TAA under TA-W-65,585; and that the
Department did not contact the domestic suppliers of a major
customer of the subject firm to determine whether the suppliers
sold imported articles to the customer, which could have created
import competition for the subject firm.
On February 3, 2012, the Department filed Defendant’s Response
in Opposition to Plaintiffs’ Second Amended Motion for Judgment on
the Agency Record. In the response, the Department explained the
basis of the negative determination. In particular, the Department
reiterated that during the relevant time period, customer imports
and U.S. aggregate imports declined, both in absolute and relative
terms, and again emphasized that the sales of the subject firm
increased during the relevant time period.
On February 22, 2012, Plaintiffs filed a Reply Brief in
Support of Plaintiffs’ Second Amended Motion for Judgment on the
Agency Record in which they stated that the Department failed to
investigate conflicting information provided by Weather Shield
during the initial and first remand investigations of this petition
regarding its overall sales of doors and windows in the relevant
time period; pointed to possible import competition by alleged
Weather Shield competitor, Simpson Door Company; stated that the
Department failed to investigate if imports by Simpson could have
impacted operations at the subject firm; and alleged that the
Department did not investigate sufficiently whether a major
customer of the subject firm had purchased imported doors and/or
windows indirectly through its other domestic suppliers during the
relevant time period.
On May 31, 2012, the USCIT filed a Memorandum and Order that
stated that the Department’s decision cannot be sustained as it
does not explain the change in Weather Shield’s reported sales
information supplied by the subject firm. Additionally, the
Memorandum stated that the investigation did not adequately address
whether the customer purchased imported product from its other
suppliers. The USCIT remanded the case to the Department to “review
and reconsider its explanation for the differences in Weather
Shield’s sales for 2008; as well as its conclusions related to
import volumes.”
ACTIVITY RELATED TO WEATHER SHIELD’S 2008 SALES DATA
Pursuant to the May 31, 2012 Order, the Department again
solicited information from Weather Shield regarding its sales for
2008 and 2009. In order to ensure the accuracy of the information
collected from the subject firm throughout this investigation on
which this determination is based, the Department requested and
received an Affirmation of Information, signed under penalty of
law, by the official representative of the subject firm. SUAR 170-
173, 174-178.
Because the two sets of sales data provided by the subject
firm during the earlier investigations were not identical, the
Department requested that the subject firm provide an explanation
regarding the discrepancy between the two sets of data along with
the correct sales information. SUAR 2-26, 27-31. In order to
determine if sales or production declined during the relevant time
period, the Department also solicited information regarding Weather
Shield’s production data during the same time period. SUAR 35-39.
The findings confirmed that, in terms of value, Weather Shield
sales increased from 2008 to 2009. SUAR 32, 81.
In order for the Department to obtain from the subject firm
production information regarding its total 2008 and 2009 doors and
window units and to resolve any inconsistencies, on July 6, 2012,
the Department filed its first motion for an enlargement of time.
The time extension was also requested at this time to allow for the
collection and analysis of the customer’s supplier responses. On
July 9, 2012, the USCIT granted the Department’s request for a time
enlargement that extended the deadline for filing the results to
August 15, 2012.
On July 19, 2012, the subject firm reported that production of
doors and windows at the manufacturing locations which received the
administrative support services of the subject worker group
declined from 2008 to 2009. SUAR 40-45. The Department asked the
subject firm to provide an explanation regarding the reason that a
sales increase occurred while production declined. SUAR 40-45, 46-
65, 66-71, 72-77, 78-80.
On August 6, 2012, the Department served Weather Shield with a
subpoena to explain why the subject firm reported an increase in
the value of sales of windows and doors for the same period
(calendar year 2008 to calendar year 2009) that it reported a
decrease in the production of these articles. SUAR 72-77.
Although Weather Shield reported that the sales information
which was provided during the second remand was correct, SUAR 81,
the Department sought further explanation of the seemingly inverse
relationship between sales and production. The subject firm
affirmed that total sales of doors and windows for 2008 and 2009
had increased. SUAR 32, 81. The subject firm also stated that the
production numbers submitted earlier were provided in error and
that they had submitted updated and accurate information. SUAR 81.
On August 14, 2012, the Department filed a motion for a second
enlargement of time of 60 days to continue the remand
investigation. The Plaintiffs consented to the motion filed for the
time enlargement provided that they receive any new relevant
information provided by Weather Shield and to be given opportunity
to comment.
In accordance with the August 22, 2012 Order, the Department
submitted to the Plaintiffs information that consisted of email
correspondence between the Department and the subject firm that
took place between June 14, 2012 and August 8, 2012 and the
subpoena served on August 6, 2012. SUAR 295-378.
On September 17, 2012, Plaintiffs provided comments on the
released information, along with new import information. SUAR 382-
386. The Plaintiffs stated that the information was insufficient
for the following reasons: the record did not establish that all
manufacturing locations and products manufactured by the subject
firm were included in the sales and production figures; the
Department had not demonstrated that the subject firm understood
the questions posed and the type of information that had been
requested, which had caused responses to be insufficient or
incorrect; and that the subject firm had not provided accurate data
regarding its imports of finished goods. SUAR 382-386.
The Plaintiffs also argued that it is unclear from the record
how many of the subject firm’s production facilities are covered
under this investigation. SUAR 382-386. Specifically, the
Plaintiffs point out that, during the second remand investigation,
the Department found that, although the subject firm pointed to
five production locations that were supported by the corporate
headquarters during the initial investigation, the Department later
received information that the corporate headquarters supported ten
production facilities. UAR 17-22, 779-782. SUAR 174-178, 179-183,
184-186.
The Plaintiffs’ comments regarding the five locations were
derived from information that was submitted by the subject firm
during the initial investigation of TA-W-64,735. UAR 17-22. That
information was updated after the conclusion of the investigation
of TA-W-64,735, and, during the second remand investigation of TA-
W-72,673, the subject firm submitted a list of the ten production
facilities that were supported by the subject worker group and fall
within the scope of this investigation. UAR 779-782. SUAR 174-178,
179-183, 184-186.
As attested by the subject firm official and reflected in the
record, the third remand investigation covered the locations
supported by the subject worker group and all the products
manufactured at those locations; the subject firm showed that it
was fully aware of which locations and products it was providing
information; and that the subject firm confirmed that it did not
import doors or windows (or like or directly competitive articles)
during the period under investigation. UAR 779-782, 787, 789, 793-
794, 796, 800, 820-821. SUAR 2-26, 27-31, 32-34, 35-39, 174-178,
179-183, 184-186.
The Plaintiffs asked the Department to obtain from the subject
firm evidence that the information submitted to the Department
during this investigation was accurate and complete. SUAR 382-386.
In particular, the Plaintiffs suggested that hard copies or
electronic screen shots of accounting records would be beneficial
in supporting the findings. SUAR 382-386.
As noted earlier, the Department received from the subject
firm’s representative a signed Attestation. Therefore, the
Department’s reliance upon information supplied by the subject firm
during the third remand investigation is reasonable. Nonetheless,
the Department reviewed the record and determined that any
inconsistencies that Plaintiffs raised were already resolved based
on the record through the investigation by the Department and,
consequently, that a review of the subject firm’s financial records
are not necessary.
Regarding the Plaintiff’s claims of inaccuracy and
inconsistency of the investigation, the Department identified
information that is already part of the record to address the
allegations and collected additional information from the subject
firm. UAR 779-782, 787, 789, 793-794, 796, 800, 820-821. SUAR 2-26,
27-31, 32-34, 35-39, 174-178, 179-183, 184-186.
To further support their argument regarding the inaccuracy of
Weather Shield’s import information, the Plaintiffs provided data
from a trade publication. Specifically, the Plaintiffs submitted a
bill of lading report from Zepol Corporation (www.zepol.com) that
showed Weather Shield as an importer of doors and Windows. SUAR
386. Although the document did not list Weather Shield as the
importer or consignee of foreign goods, it indicated that Weather
Shield, specifically its Park Falls, Wisconsin facility, was the
ultimate recipient of the imported products. SUAR 386.
The Department contacted the subject firm to obtain further
information to address Plaintiff comments regarding the bill of
lading. SUAR 83-98. Specifically, the Department again solicited
information to confirm that the subject firm did not import doors
and/or windows, or like or directly competitive articles, during
the relevant time period. SUAR 83-98. The Department also requested
that the subject firm provide information on its domestic vendors
and to address the information submitted by the Plaintiffs from
zepol.com. SUAR 83-98, 100-101, 102-104, 141, 142-143, 144-145,
146-147, 148-149.
The subject firm responded that the importer and consignee
listed on the bill of lading document is a domestic vendor that
supplies the subject firm with articles that are neither like nor
directly competitive with either windows or doors. SUAR 99, 105-140
150-152. The subject firm confirmed that it does not conduct
business with any foreign firms, including the one listed on the
bill of lading under the exporter column. SUAR 105-140, 150-152,
177-178.
The Department asked the subject firm to provide more detailed
information on the relationship between the subject firm and the
vendor listed on the bill of lading document, as well as provide
information on any relationships with any other foreign firms
during the relevant time period. SUAR 83-98, 99, 100-101, 102-104,
142-143, 144-145, 150-152. The subject firm stated that the vendor
provided articles that are neither like nor directly competitive
with either windows or doors, confirmed that Weather Shield does
not purchase window or door units from vendors, and stated that the
subject firm does not have information pertaining to the origin of
the products purchased from vendors. SUAR 83-98, 99, 100-101, 102-
104, 142-143, 144-145, 150-152. The subject firm explained that it
does not purchase from vendors finished doors or windows and
submitted a list of its top twenty vendors for 2008 and 2009. SUAR
105-140. The list included vendors that supplied services and
articles other than doors and windows. SUAR 150-152.
In addition to the information collected from the subject firm
regarding the new allegations, the Department conducted its own
trade records search on zepol.com. SUAR 481-482, 485-488. The
search did not expose any import information relating to the
subject firm for the relevant time period. SUAR 481-482, 485-488.
On October 2, 2012, the Department released more information
to the Plaintiffs. The information included email correspondence
between the Department and the subject firm that occurred between
September 21, 2012 and October 1, 2012. SUAR 389-464.
On October 12, 2012, the Department filed a third motion for
an enlargement of time. The motion stated that the Department
required an extension to allow Plaintiffs to review and comment on
the information provided by Weather Shield on October 2, 2012 (the
second release of information to Plaintiffs), and, once comments
are received, to analyze the comments, to collect further
information as needed, and to file its remand findings. The USCIT
granted the Department until December 17, 2012 to file the
Department’s third remand results and the supplemental updated
administrative record.
On October 15, 2012, Plaintiffs submitted comments regarding
the second information release. The comments provided by the
Plaintiffs were erroneous on several counts. SUAR 467-469.
First, the Plaintiffs misunderstood the time periods for which
information was collected and stated that the subject firm provided
information for its vendors for 2007 and 2008. SUAR 467-469. The
record evidence covers periods 2008 and 2009, which is the period
under investigation.
Additionally, the Plaintiffs claimed that Weather Shield
provided information regarding only one of its vendors. SUAR 467-
469. This is inaccurate because Weather Shield had provided
information regarding its top twenty vendors and confirmed that it
does not purchase from vendors finished door or window products.
SUAR 105-140, 150-152. Further, the Plaintiffs misunderstood the
Department’s intent when it questioned the subject firm regarding
one vendor in more detail because the name of this vendor was found
on the trade publication submitted by the Plaintiffs. SUAR 83-98.
According to the information received from the subject firm, the
vendor provided articles that are neither like nor directly
competitive with either windows or doors to Weather Shield.
Therefore, any such imports could not have contributed to a decline
in employment and sales or production at the subject firm. Imports
of articles other than doors or windows (or like or directly
competitive articles) fall outside the scope of this investigation.
Additionally, the Plaintiffs stated that the Department should
have solicited information from the subject firm regarding its
imports of articles. SUAR 467-469. At the time the comments were
submitted, Plaintiffs were informed that Weather Shield had
confirmed that it did not import finished doors or windows (or like
or directly competitive articles). This information was part of the
October 2, 2011 information release. SUAR 389-464.
ACTIVITY RELATED TO WEATHER SHIELD’S CUSTOMER AND ITS SUPPLIERS
During the initial investigation of this petition, the
Department conducted a customer survey on the customers of the
subject firm to determine if the layoffs at Weather Shield were the
result of increased import competition. UAR 562-565, 566-572, 573-
575, 576-578, 579-581, 582, 679-738. A sample group of the subject
firm’s customers were surveyed regarding their purchases of doors
and/or windows made in the relevant time period from the subject
firm, other domestic firms, and foreign firms. The Department
repeated a larger survey during the second remand that captured the
majority of the subject firm’s customer base during the period
under investigation. UAR 1243-1319, 1325-1344. Both surveys
demonstrated that customer imports declined during the relevant
time period.
The results of the second remand investigation’s customer
survey showed that purchases made by the surveyed customers from
the subject firm declined. UAR 1243-1319, 1325-1344. Purchases made
by these customers from other domestic and foreign firms also
declined. UAR 1243-1319, 1325-1344. Specifically, in the second
survey conducted during the remand investigation, the Department
captured 73 percent of the subject firm’s customer base, in terms
of value, in 2008 and 46 percent in 2009. UAR 1243-1319, 1325-1344.
During the surveyed period, customer imports declined 20 percent.
UAR 1243-1319, 1325-1344. The survey conducted on Weather Shield’s
customers also showed that total customer imports declined 63
percent from 2008 to 2009. UAR 1325-1344.
At the time of this customer survey, the subject firm had
submitted information to the Department that indicated a decline of
total sales of doors and windows from 2008 to 2009. UAR 585, 673.
However, it was revealed in the second remand that overall sales of
the subject firm increased. UAR 815.
In the customer survey that was conducted during the initial
investigation of this petition, one (and the largest) of Weather
Shield’s customers (for confidentiality purposes, this customer
will hereafter be referred to as “the customer”) was unable to
provide a response to question #2 on the Business Confidential
Customer Survey (OMB #1205-0342, Exp. 1/31/2013) which asks if the
products purchased from other domestic firms were manufactured in a
foreign country. UAR 562-565, 566-572.
The information that this significant customer provided on the
survey showed that its purchases from the subject firm declined
from 2008 to 2009. The customer’s purchases from other domestic and
foreign firms also declined during the same period. UAR 562-565,
566-572.
To determine whether the subject firm may have competed with
imported doors and/or windows of the other domestic suppliers of
the customer, the Department followed up with the customer during
the second remand to solicit information regarding the origin of
the articles it purchases from other domestic firms. The customer
again responded that it does not track import information on
articles purchased from domestic suppliers and submitted a list of
its suppliers for the relevant time period. UAR 823.
The customer was contacted again during this third remand
investigation to confirm the information that it submitted during
the initial and remand investigations of this petition. SUAR 188-
239. The customer also submitted additional information regarding
the size (purchase value) of its 2008 and 2009 domestic door and/or
window suppliers along with more specific information about the
products purchased from each supplier. SUAR 188-239.
Although the Department believes that its previous
determination based on the findings of the customer survey was
correct, the Department contacted each of the customer’s suppliers
to question whether they sold imported product to this customer in
the period under investigation. SUAR 240-293.
In order to determine whether any imported product sold to the
customer by its other domestic suppliers contributed importantly to
a decline in operations at Weather Shield, the Department first had
to determine the size of each supplier in relation to the
customer’s operations, and then examine any import impact on the
operations of the subject firm.
The Department had to determine if the customer decreased its
purchases from the subject firm and increased purchases from
suppliers that imported the doors and/or windows they sold to the
customer in the relevant time period. The customer provided
information regarding the size, in purchase value, of its suppliers
which was used to determine the significance of each supplier
relative to the customer’s operations and whether any of their
imports could have impacted operations at Weather Shield. SUAR 187-
239. The Department contacted all of the domestic suppliers of
doors and windows of the customer to obtain information regarding
the origin of the products sold to the customer in the years 2008
and 2009. SUAR 241-293. Each supplier was requested to specify how
much, if any, of the doors and/or windows sold to the customer in
the relevant time period was manufactured in a foreign country.
SUAR 241-293.
A portion of the suppliers –approximately 24 percent of the
customer’s door and window supplier base in 2008 and 22 percent in
2009 - reported that the articles that they sold to the customer
were manufactured in a foreign country. SUAR 241-293, 477, 480.
However, because the suppliers imported a negligible percentage of
the articles they sold to the customer, the customer purchased
approximately one percent of imported products from its other
domestic suppliers in 2008 and approximately two percent in 2009.
SUAR 241-293, 477, 480, 507-508.
This new survey information was used to determine total import
impact. To identify the relevance of the information collected from
the suppliers of the customer during this remand investigation, the
Department revised the survey analysis to show results to include
the new import information. SUAR 507-508. Specifically, the
results now include the missing response to question #2 on the
customer survey form — imported purchases made from domestic firms.
SUAR 507-508.
The updated information that includes indirect imports
(“direct imports” refer to imports by the customers of Weather
Shield and “indirect imports” refer to imports by the other
domestic suppliers of Weather Shield’s customers) shows that total
imports of the customer’s of the subject firm declined from 2008 to
2009 and that indirect imports increased by one percent during the
relevant time period. SUAR 507-508. The negligible increase in
imports by the suppliers could not have contributed importantly to
a decline in employment and sales or production at the subject
firm.
SUMMARY OF THIRD REMAND INVESTIGATION
The third remand investigation revealed that the subject
firm’s sales and production increased October 2008 through
September 2009, and that the information provided by the subject
firm could be relied upon by the Department.
Based on a careful review of previously submitted information
and new information obtained during this remand investigation, the
Department determines that increased imports of articles like or
directly competitive with those produced by the subject firm did
not contribute importantly to subject worker group separations.
Therefore, the Department determined that the petitioning workers
have not met the eligibility criteria of Section 222(a) 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 Weather
Shield Manufacturing, Inc., Corporate Office, Medford, Wisconsin.
Signed in Washington, D.C., on this 13th day of December, 2012
/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-72,673
WEATHER SHIELD MANUFACTURING, INC.
CORPORATE OFFICE
MEDFORD, WISCONSIN
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 26, 2010 on behalf of workers of Weather Shield
Manufacturing, Inc., Corporate Office, Medford, Wisconsin
(hereinafter referred to as Weather Shield, Corporate Office). The
workers supply corporate office support services for metal/wood
doors and windows.
The petitioner alleges that adverse economic conditions
contributed to the separations at Weather Shield, Corporate Office.
The investigation included multiple e-mail and phone
correspondences with company officials as well as data gathered
during the Department’s survey of the subject firm’s largest
declining customers in regards to their purchases of metal/wood
doors and windows.
With respect to Section 222(a) of the Act, the investigation
revealed that Criterion II has not been met because the workers
firm did not shift or acquire services like or directly competitive
to those supplied by the workers. Subject firm imports of articles
related to the services supplied were negligible. Finally, there
was no increase in imports of such articles by a customer of the
workers’ firm during the relevant period.
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 or
supply of a service that was the basis for TAA-certification.
U.S. aggregate imports of metal/wood doors and windows (NAIC-
332321/321911) declined from 2008 to 2009.
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 (ITC).
Conclusion
After careful review of the facts obtained in the
investigation, I determine that workers of Weather Shield
Manufacturing, Inc., Corporate Office, Medford, Wisconsin, who
supply corporate office support services for metal/wood windows
?
and doors, 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 16th day of July, 2010
/s/Del Min Amy Chen
______________________________
DEL MIN AMY CHEN
Certifying Officer, Office of
Trade Adjustment Assistance
- 27 -
Employment and Training Administration
TA-W-72,673
WEATHER SHIELD MANUFACTURING, INC.
CORPORATE OFFICE
MEDFORD, WISCONSIN
Notice of Negative Determination
On Third Remand
On May 31, 2012, the United States Court of International
Trade (USCIT) ordered the United States Department of Labor
(Department) to conduct further investigation in Former Employees
of Weather Shield Manufacturing, Inc. v. United States Secretary of
Labor (Court No. 10-00299).
The group eligibility requirements for workers of a firm under
Section 222(a) of the Trade Act of 1974, as amended (the Act), 19
U.S.C. § 2272(a), can be satisfied if the following criteria are
met:
(1) a significant number or proportion of the workers in such
workers’ firm have become totally or partially separated, or are
threatened to become totally or partially separated; and
(2)(A)(i) the sales or production, or both, of such firm have
decreased absolutely;
(ii)(I) imports of articles or services like or directly
competitive with articles produced or services supplied
by such firm have increased;
(II) imports of articles like or directly
competitive with articles—
(aa) into which one or more component parts produced
by such firm are directly incorporated, or
(bb) which are produced directly using services
supplied by such firm,
have increased; or
(III) imports of articles directly incorporating one
or more component parts produced outside the United
States that are like or directly competitive with
imports of articles incorporating one or more
component parts produced by such firm have increased;
and
(iii) the increase in imports described in clause (ii)
contributed importantly to such workers’ separation or
threat of separation and to the decline in the sales or
production of such firm; or
(B)(i)(I) there has been a shift by such workers’ firm to a
foreign country in the production of articles or the supply of
services like or directly competitive with articles which are
produced or services which are supplied by such firm; or
(II) such workers’ firm has acquired from a foreign
country articles or services that are like or directly
competitive with articles which are produced or
services which are supplied by such firm; and
(ii) the shift described in clause (i)(I) or the acquisition
of articles or services described in clause (i)(II) contributed
importantly to such workers’ separation or threat of
separation.
BACKGROUND
The initial investigation began on October 23, 2009 when three
workers filed a petition for Trade Adjustment Assistance (TAA) on
behalf of workers and former workers of the Weather Shield
Manufacturing, Inc., Corporate Office, Medford, Wisconsin (subject
facility). Workers at the subject facility (subject worker group)
supply administrative support services related to the production of
doors and windows at various domestic locations of Weather Shield
Manufacturing, Inc. (hereafter referred to as “subject firm” or
“Weather Shield”).
29 CFR 90.2 states that “Increased imports means that imports
have increased either absolutely or relative to domestic production
compared to a representative base period. The representative base
period shall be one year consisting of the four quarters
immediately preceding the date which is the twelve month prior to
the date of the petition.” As such, the relevant time period for
this investigation is October 2008 through September 2009, and the
representative base period is October 2007 through September 2008
(hereafter referred to as “relevant time period” or “period under
investigation”).
The initial investigation revealed that neither the subject
firm nor its customers increased import purchases of either doors
or windows (or like or directly competitive articles) during the
relevant time period. Additionally, the subject firm had not
shifted abroad either the production of these articles or services
like or directly competitive with those supplied by the worker
group in the period under investigation. As such, the group
eligibility requirements were not satisfied, and the Department
issued a negative determination on July 16, 2010. The Department’s
Notice of Negative Determination was published in the Federal
Register on August 2, 2010 (75 FR 45163). Updated Administrative
Record (UAR) 611. The Department filed the UAR with the USCIT on
October 31, 2011.
By application dated August 23, 2010, one of the petitioners
requested administrative reconsideration of the Department’s
negative determination. In the application, the petitioner stated
that the worker group covered by petition TA-W-72,673 was impacted
by the same import competition as the worker group covered by TAA
certification TA-W-64,725, which was issued on August 9, 2010
(Weather Shield Manufacturing, Inc., Corporate Office, Medford,
Wisconsin; petition dated December 17, 2008) and argued that the
same conclusion awarding worker adjustment assistance should be
applied in the case at hand. However, because it was determined
that a different relevant time period was at issue which resulted
in a different conclusion, the Department determined that the
determination in TA-W-64,725 was not controlling.
Because the Department determined that administrative
reconsideration could not be granted, a Notice of Negative
Determination Regarding Application for Reconsideration was issued
on September 10, 2010, in accordance with 29 CFR 90.18(c). The
Department’s Notice of Negative Determination Regarding Application
for Reconsideration was published in the Federal Register on
September 21, 2010 (75 FR 57519). UAR 653.
Subsequently, the petitioners filed a complaint with the USCIT
on October 8, 2010, and argued the same allegations as in their
request for administrative reconsideration. The Department
determined that further investigation under judicial review was
unjustified and filed an administrative record of the materials
upon which the Department relied in making its determination with
regards to the subject worker group’s eligibility to apply for TAA.
In Plaintiffs’ Motion to Supplement the Administrative Record,
dated March 30, 2011, Plaintiffs indicated that the administrative
record did not include documentation that adequately supported the
negative determination and submitted additional information to be
considered by the Department to show that Weather Shield faced
import competition.
FIRST REMAND ACTIVITY
On May 2, 2011, the Department filed a Motion for Voluntary
Remand in which it sought to supplement the administrative record
with documentation that was used in the decision making process for
case TA-W-64,725 and explain the relevance of this material. At
that time, the Department did not seek to conduct further
investigation. Rather, the Department amended the administrative
record on June 3, 2011 to include documents from case TA-W-64,725
and supplemented the record with an explanation regarding the
relevance of these documents.
The Plaintiffs filed a Memorandum of Points and Authorities in
Support of Plaintiffs’ Amended Motion for Judgment on the Agency
Record on July 5, 2011 in which they asked the Department to
conduct further investigation and apply the same methodology for
administering customer surveys and determining import competition
as in the TA-W-64,725 remand investigation. Specifically, the
Plaintiffs stated that the Department should collect additional
information from the subject firm’s customers and competitors.
SECOND REMAND ACTIVITY
On August 3, 2011, the Department requested a second voluntary
remand to conduct further investigation, to permit the Plaintiffs
to submit additional evidence, and to supplement the administrative
record with all the contents of the TA-W-64,725 case record.
During the second remand investigation, the Department collected
additional information from the subject firm, conducted an expanded
customer survey, collected aggregate U.S. import data, and sought
input from the Plaintiffs.
The Department found that imports of Weather Shield’s
customers had declined during the relevant time period. The updated
data also revealed that, contrary to information that had been
provided previously, the subject firm’s total sales for the
relevant time period increased. As such, the Department determined
that worker separations were not related to trade impact and
reaffirmed the negative determination regarding TAA eligibility. On
October 11, 2011 the Department issued a Negative Determination on
Remand. The Department’s Notice of Negative Determination was
published in the Federal Register on November 15, 2011 (76 FR
70761). Supplemental Updated Administrative Record (SUAR) 501-505.
THIRD REMAND ACTIVITY
On December 2, 2011, Plaintiffs filed a Memorandum of Points
and Authorities in Support of Plaintiffs’ Second Amended Motion for
Judgment on the Agency Record. The Plaintiffs contended that the
Department had not fully investigated the change in sales reported
by Weather Shield; had not fully investigated if Weather Shield
lost business to competitor Simpson Door Company, whose workers
were eligible to apply for TAA under TA-W-65,585; and that the
Department did not contact the domestic suppliers of a major
customer of the subject firm to determine whether the suppliers
sold imported articles to the customer, which could have created
import competition for the subject firm.
On February 3, 2012, the Department filed Defendant’s Response
in Opposition to Plaintiffs’ Second Amended Motion for Judgment on
the Agency Record. In the response, the Department explained the
basis of the negative determination. In particular, the Department
reiterated that during the relevant time period, customer imports
and U.S. aggregate imports declined, both in absolute and relative
terms, and again emphasized that the sales of the subject firm
increased during the relevant time period.
On February 22, 2012, Plaintiffs filed a Reply Brief in
Support of Plaintiffs’ Second Amended Motion for Judgment on the
Agency Record in which they stated that the Department failed to
investigate conflicting information provided by Weather Shield
during the initial and first remand investigations of this petition
regarding its overall sales of doors and windows in the relevant
time period; pointed to possible import competition by alleged
Weather Shield competitor, Simpson Door Company; stated that the
Department failed to investigate if imports by Simpson could have
impacted operations at the subject firm; and alleged that the
Department did not investigate sufficiently whether a major
customer of the subject firm had purchased imported doors and/or
windows indirectly through its other domestic suppliers during the
relevant time period.
On May 31, 2012, the USCIT filed a Memorandum and Order that
stated that the Department’s decision cannot be sustained as it
does not explain the change in Weather Shield’s reported sales
information supplied by the subject firm. Additionally, the
Memorandum stated that the investigation did not adequately address
whether the customer purchased imported product from its other
suppliers. The USCIT remanded the case to the Department to “review
and reconsider its explanation for the differences in Weather
Shield’s sales for 2008; as well as its conclusions related to
import volumes.”
ACTIVITY RELATED TO WEATHER SHIELD’S 2008 SALES DATA
Pursuant to the May 31, 2012 Order, the Department again
solicited information from Weather Shield regarding its sales for
2008 and 2009. In order to ensure the accuracy of the information
collected from the subject firm throughout this investigation on
which this determination is based, the Department requested and
received an Affirmation of Information, signed under penalty of
law, by the official representative of the subject firm. SUAR 170-
173, 174-178.
Because the two sets of sales data provided by the subject
firm during the earlier investigations were not identical, the
Department requested that the subject firm provide an explanation
regarding the discrepancy between the two sets of data along with
the correct sales information. SUAR 2-26, 27-31. In order to
determine if sales or production declined during the relevant time
period, the Department also solicited information regarding Weather
Shield’s production data during the same time period. SUAR 35-39.
The findings confirmed that, in terms of value, Weather Shield
sales increased from 2008 to 2009. SUAR 32, 81.
In order for the Department to obtain from the subject firm
production information regarding its total 2008 and 2009 doors and
window units and to resolve any inconsistencies, on July 6, 2012,
the Department filed its first motion for an enlargement of time.
The time extension was also requested at this time to allow for the
collection and analysis of the customer’s supplier responses. On
July 9, 2012, the USCIT granted the Department’s request for a time
enlargement that extended the deadline for filing the results to
August 15, 2012.
On July 19, 2012, the subject firm reported that production of
doors and windows at the manufacturing locations which received the
administrative support services of the subject worker group
declined from 2008 to 2009. SUAR 40-45. The Department asked the
subject firm to provide an explanation regarding the reason that a
sales increase occurred while production declined. SUAR 40-45, 46-
65, 66-71, 72-77, 78-80.
On August 6, 2012, the Department served Weather Shield with a
subpoena to explain why the subject firm reported an increase in
the value of sales of windows and doors for the same period
(calendar year 2008 to calendar year 2009) that it reported a
decrease in the production of these articles. SUAR 72-77.
Although Weather Shield reported that the sales information
which was provided during the second remand was correct, SUAR 81,
the Department sought further explanation of the seemingly inverse
relationship between sales and production. The subject firm
affirmed that total sales of doors and windows for 2008 and 2009
had increased. SUAR 32, 81. The subject firm also stated that the
production numbers submitted earlier were provided in error and
that they had submitted updated and accurate information. SUAR 81.
On August 14, 2012, the Department filed a motion for a second
enlargement of time of 60 days to continue the remand
investigation. The Plaintiffs consented to the motion filed for the
time enlargement provided that they receive any new relevant
information provided by Weather Shield and to be given opportunity
to comment.
In accordance with the August 22, 2012 Order, the Department
submitted to the Plaintiffs information that consisted of email
correspondence between the Department and the subject firm that
took place between June 14, 2012 and August 8, 2012 and the
subpoena served on August 6, 2012. SUAR 295-378.
On September 17, 2012, Plaintiffs provided comments on the
released information, along with new import information. SUAR 382-
386. The Plaintiffs stated that the information was insufficient
for the following reasons: the record did not establish that all
manufacturing locations and products manufactured by the subject
firm were included in the sales and production figures; the
Department had not demonstrated that the subject firm understood
the questions posed and the type of information that had been
requested, which had caused responses to be insufficient or
incorrect; and that the subject firm had not provided accurate data
regarding its imports of finished goods. SUAR 382-386.
The Plaintiffs also argued that it is unclear from the record
how many of the subject firm’s production facilities are covered
under this investigation. SUAR 382-386. Specifically, the
Plaintiffs point out that, during the second remand investigation,
the Department found that, although the subject firm pointed to
five production locations that were supported by the corporate
headquarters during the initial investigation, the Department later
received information that the corporate headquarters supported ten
production facilities. UAR 17-22, 779-782. SUAR 174-178, 179-183,
184-186.
The Plaintiffs’ comments regarding the five locations were
derived from information that was submitted by the subject firm
during the initial investigation of TA-W-64,735. UAR 17-22. That
information was updated after the conclusion of the investigation
of TA-W-64,735, and, during the second remand investigation of TA-
W-72,673, the subject firm submitted a list of the ten production
facilities that were supported by the subject worker group and fall
within the scope of this investigation. UAR 779-782. SUAR 174-178,
179-183, 184-186.
As attested by the subject firm official and reflected in the
record, the third remand investigation covered the locations
supported by the subject worker group and all the products
manufactured at those locations; the subject firm showed that it
was fully aware of which locations and products it was providing
information; and that the subject firm confirmed that it did not
import doors or windows (or like or directly competitive articles)
during the period under investigation. UAR 779-782, 787, 789, 793-
794, 796, 800, 820-821. SUAR 2-26, 27-31, 32-34, 35-39, 174-178,
179-183, 184-186.
The Plaintiffs asked the Department to obtain from the subject
firm evidence that the information submitted to the Department
during this investigation was accurate and complete. SUAR 382-386.
In particular, the Plaintiffs suggested that hard copies or
electronic screen shots of accounting records would be beneficial
in supporting the findings. SUAR 382-386.
As noted earlier, the Department received from the subject
firm’s representative a signed Attestation. Therefore, the
Department’s reliance upon information supplied by the subject firm
during the third remand investigation is reasonable. Nonetheless,
the Department reviewed the record and determined that any
inconsistencies that Plaintiffs raised were already resolved based
on the record through the investigation by the Department and,
consequently, that a review of the subject firm’s financial records
are not necessary.
Regarding the Plaintiff’s claims of inaccuracy and
inconsistency of the investigation, the Department identified
information that is already part of the record to address the
allegations and collected additional information from the subject
firm. UAR 779-782, 787, 789, 793-794, 796, 800, 820-821. SUAR 2-26,
27-31, 32-34, 35-39, 174-178, 179-183, 184-186.
To further support their argument regarding the inaccuracy of
Weather Shield’s import information, the Plaintiffs provided data
from a trade publication. Specifically, the Plaintiffs submitted a
bill of lading report from Zepol Corporation (www.zepol.com) that
showed Weather Shield as an importer of doors and Windows. SUAR
386. Although the document did not list Weather Shield as the
importer or consignee of foreign goods, it indicated that Weather
Shield, specifically its Park Falls, Wisconsin facility, was the
ultimate recipient of the imported products. SUAR 386.
The Department contacted the subject firm to obtain further
information to address Plaintiff comments regarding the bill of
lading. SUAR 83-98. Specifically, the Department again solicited
information to confirm that the subject firm did not import doors
and/or windows, or like or directly competitive articles, during
the relevant time period. SUAR 83-98. The Department also requested
that the subject firm provide information on its domestic vendors
and to address the information submitted by the Plaintiffs from
zepol.com. SUAR 83-98, 100-101, 102-104, 141, 142-143, 144-145,
146-147, 148-149.
The subject firm responded that the importer and consignee
listed on the bill of lading document is a domestic vendor that
supplies the subject firm with articles that are neither like nor
directly competitive with either windows or doors. SUAR 99, 105-140
150-152. The subject firm confirmed that it does not conduct
business with any foreign firms, including the one listed on the
bill of lading under the exporter column. SUAR 105-140, 150-152,
177-178.
The Department asked the subject firm to provide more detailed
information on the relationship between the subject firm and the
vendor listed on the bill of lading document, as well as provide
information on any relationships with any other foreign firms
during the relevant time period. SUAR 83-98, 99, 100-101, 102-104,
142-143, 144-145, 150-152. The subject firm stated that the vendor
provided articles that are neither like nor directly competitive
with either windows or doors, confirmed that Weather Shield does
not purchase window or door units from vendors, and stated that the
subject firm does not have information pertaining to the origin of
the products purchased from vendors. SUAR 83-98, 99, 100-101, 102-
104, 142-143, 144-145, 150-152. The subject firm explained that it
does not purchase from vendors finished doors or windows and
submitted a list of its top twenty vendors for 2008 and 2009. SUAR
105-140. The list included vendors that supplied services and
articles other than doors and windows. SUAR 150-152.
In addition to the information collected from the subject firm
regarding the new allegations, the Department conducted its own
trade records search on zepol.com. SUAR 481-482, 485-488. The
search did not expose any import information relating to the
subject firm for the relevant time period. SUAR 481-482, 485-488.
On October 2, 2012, the Department released more information
to the Plaintiffs. The information included email correspondence
between the Department and the subject firm that occurred between
September 21, 2012 and October 1, 2012. SUAR 389-464.
On October 12, 2012, the Department filed a third motion for
an enlargement of time. The motion stated that the Department
required an extension to allow Plaintiffs to review and comment on
the information provided by Weather Shield on October 2, 2012 (the
second release of information to Plaintiffs), and, once comments
are received, to analyze the comments, to collect further
information as needed, and to file its remand findings. The USCIT
granted the Department until December 17, 2012 to file the
Department’s third remand results and the supplemental updated
administrative record.
On October 15, 2012, Plaintiffs submitted comments regarding
the second information release. The comments provided by the
Plaintiffs were erroneous on several counts. SUAR 467-469.
First, the Plaintiffs misunderstood the time periods for which
information was collected and stated that the subject firm provided
information for its vendors for 2007 and 2008. SUAR 467-469. The
record evidence covers periods 2008 and 2009, which is the period
under investigation.
Additionally, the Plaintiffs claimed that Weather Shield
provided information regarding only one of its vendors. SUAR 467-
469. This is inaccurate because Weather Shield had provided
information regarding its top twenty vendors and confirmed that it
does not purchase from vendors finished door or window products.
SUAR 105-140, 150-152. Further, the Plaintiffs misunderstood the
Department’s intent when it questioned the subject firm regarding
one vendor in more detail because the name of this vendor was found
on the trade publication submitted by the Plaintiffs. SUAR 83-98.
According to the information received from the subject firm, the
vendor provided articles that are neither like nor directly
competitive with either windows or doors to Weather Shield.
Therefore, any such imports could not have contributed to a decline
in employment and sales or production at the subject firm. Imports
of articles other than doors or windows (or like or directly
competitive articles) fall outside the scope of this investigation.
Additionally, the Plaintiffs stated that the Department should
have solicited information from the subject firm regarding its
imports of articles. SUAR 467-469. At the time the comments were
submitted, Plaintiffs were informed that Weather Shield had
confirmed that it did not import finished doors or windows (or like
or directly competitive articles). This information was part of the
October 2, 2011 information release. SUAR 389-464.
ACTIVITY RELATED TO WEATHER SHIELD’S CUSTOMER AND ITS SUPPLIERS
During the initial investigation of this petition, the
Department conducted a customer survey on the customers of the
subject firm to determine if the layoffs at Weather Shield were the
result of increased import competition. UAR 562-565, 566-572, 573-
575, 576-578, 579-581, 582, 679-738. A sample group of the subject
firm’s customers were surveyed regarding their purchases of doors
and/or windows made in the relevant time period from the subject
firm, other domestic firms, and foreign firms. The Department
repeated a larger survey during the second remand that captured the
majority of the subject firm’s customer base during the period
under investigation. UAR 1243-1319, 1325-1344. Both surveys
demonstrated that customer imports declined during the relevant
time period.
The results of the second remand investigation’s customer
survey showed that purchases made by the surveyed customers from
the subject firm declined. UAR 1243-1319, 1325-1344. Purchases made
by these customers from other domestic and foreign firms also
declined. UAR 1243-1319, 1325-1344. Specifically, in the second
survey conducted during the remand investigation, the Department
captured 73 percent of the subject firm’s customer base, in terms
of value, in 2008 and 46 percent in 2009. UAR 1243-1319, 1325-1344.
During the surveyed period, customer imports declined 20 percent.
UAR 1243-1319, 1325-1344. The survey conducted on Weather Shield’s
customers also showed that total customer imports declined 63
percent from 2008 to 2009. UAR 1325-1344.
At the time of this customer survey, the subject firm had
submitted information to the Department that indicated a decline of
total sales of doors and windows from 2008 to 2009. UAR 585, 673.
However, it was revealed in the second remand that overall sales of
the subject firm increased. UAR 815.
In the customer survey that was conducted during the initial
investigation of this petition, one (and the largest) of Weather
Shield’s customers (for confidentiality purposes, this customer
will hereafter be referred to as “the customer”) was unable to
provide a response to question #2 on the Business Confidential
Customer Survey (OMB #1205-0342, Exp. 1/31/2013) which asks if the
products purchased from other domestic firms were manufactured in a
foreign country. UAR 562-565, 566-572.
The information that this significant customer provided on the
survey showed that its purchases from the subject firm declined
from 2008 to 2009. The customer’s purchases from other domestic and
foreign firms also declined during the same period. UAR 562-565,
566-572.
To determine whether the subject firm may have competed with
imported doors and/or windows of the other domestic suppliers of
the customer, the Department followed up with the customer during
the second remand to solicit information regarding the origin of
the articles it purchases from other domestic firms. The customer
again responded that it does not track import information on
articles purchased from domestic suppliers and submitted a list of
its suppliers for the relevant time period. UAR 823.
The customer was contacted again during this third remand
investigation to confirm the information that it submitted during
the initial and remand investigations of this petition. SUAR 188-
239. The customer also submitted additional information regarding
the size (purchase value) of its 2008 and 2009 domestic door and/or
window suppliers along with more specific information about the
products purchased from each supplier. SUAR 188-239.
Although the Department believes that its previous
determination based on the findings of the customer survey was
correct, the Department contacted each of the customer’s suppliers
to question whether they sold imported product to this customer in
the period under investigation. SUAR 240-293.
In order to determine whether any imported product sold to the
customer by its other domestic suppliers contributed importantly to
a decline in operations at Weather Shield, the Department first had
to determine the size of each supplier in relation to the
customer’s operations, and then examine any import impact on the
operations of the subject firm.
The Department had to determine if the customer decreased its
purchases from the subject firm and increased purchases from
suppliers that imported the doors and/or windows they sold to the
customer in the relevant time period. The customer provided
information regarding the size, in purchase value, of its suppliers
which was used to determine the significance of each supplier
relative to the customer’s operations and whether any of their
imports could have impacted operations at Weather Shield. SUAR 187-
239. The Department contacted all of the domestic suppliers of
doors and windows of the customer to obtain information regarding
the origin of the products sold to the customer in the years 2008
and 2009. SUAR 241-293. Each supplier was requested to specify how
much, if any, of the doors and/or windows sold to the customer in
the relevant time period was manufactured in a foreign country.
SUAR 241-293.
A portion of the suppliers –approximately 24 percent of the
customer’s door and window supplier base in 2008 and 22 percent in
2009 - reported that the articles that they sold to the customer
were manufactured in a foreign country. SUAR 241-293, 477, 480.
However, because the suppliers imported a negligible percentage of
the articles they sold to the customer, the customer purchased
approximately one percent of imported products from its other
domestic suppliers in 2008 and approximately two percent in 2009.
SUAR 241-293, 477, 480, 507-508.
This new survey information was used to determine total import
impact. To identify the relevance of the information collected from
the suppliers of the customer during this remand investigation, the
Department revised the survey analysis to show results to include
the new import information. SUAR 507-508. Specifically, the
results now include the missing response to question #2 on the
customer survey form — imported purchases made from domestic firms.
SUAR 507-508.
The updated information that includes indirect imports
(“direct imports” refer to imports by the customers of Weather
Shield and “indirect imports” refer to imports by the other
domestic suppliers of Weather Shield’s customers) shows that total
imports of the customer’s of the subject firm declined from 2008 to
2009 and that indirect imports increased by one percent during the
relevant time period. SUAR 507-508. The negligible increase in
imports by the suppliers could not have contributed importantly to
a decline in employment and sales or production at the subject
firm.
SUMMARY OF THIRD REMAND INVESTIGATION
The third remand investigation revealed that the subject
firm’s sales and production increased October 2008 through
September 2009, and that the information provided by the subject
firm could be relied upon by the Department.
Based on a careful review of previously submitted information
and new information obtained during this remand investigation, the
Department determines that increased imports of articles like or
directly competitive with those produced by the subject firm did
not contribute importantly to subject worker group separations.
Therefore, the Department determined that the petitioning workers
have not met the eligibility criteria of Section 222(a) 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 Weather
Shield Manufacturing, Inc., Corporate Office, Medford, Wisconsin.
Signed in Washington, D.C., on this 13th day of December, 2012
/s/ Del Min Amy Chen
_______________________________
DEL MIN AMY CHEN
Certifying Officer, Office of
Trade Adjustment Assistance
4510-FN-P
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DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-72,673
WEATHER SHIELD MANUFACTURING, INC.
CORPORATE OFFICE
MEDFORD, WISCONSIN
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 26, 2010 on behalf of workers of Weather Shield
Manufacturing, Inc., Corporate Office, Medford, Wisconsin
(hereinafter referred to as Weather Shield, Corporate Office). The
workers supply corporate office support services for metal/wood
doors and windows.
The petitioner alleges that adverse economic conditions
contributed to the separations at Weather Shield, Corporate Office.
The investigation included multiple e-mail and phone
correspondences with company officials as well as data gathered
during the Department’s survey of the subject firm’s largest
declining customers in regards to their purchases of metal/wood
doors and windows.
With respect to Section 222(a) of the Act, the investigation
revealed that Criterion II has not been met because the workers
firm did not shift or acquire services like or directly competitive
to those supplied by the workers. Subject firm imports of articles
related to the services supplied were negligible. Finally, there
was no increase in imports of such articles by a customer of the
workers’ firm during the relevant period.
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 or
supply of a service that was the basis for TAA-certification.
U.S. aggregate imports of metal/wood doors and windows (NAIC-
332321/321911) declined from 2008 to 2009.
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 (ITC).
Conclusion
After careful review of the facts obtained in the
investigation, I determine that workers of Weather Shield
Manufacturing, Inc., Corporate Office, Medford, Wisconsin, who
supply corporate office support services for metal/wood windows
?
and doors, 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 16th day of July, 2010
/s/Del Min Amy Chen
______________________________
DEL MIN AMY CHEN
Certifying Officer, Office of
Trade Adjustment Assistance
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