DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-74,364

INTERNATIONAL BUSINESS MACHINES (IBM)
SALES AND DISTRIBUTION BUSINESS UNIT
GLOBAL SALES SOLUTION DEPARTMENT
DIVISION 91
OFF-SITE TELEWORKER IN
ARMONK, NEW YORK

Notice of Negative Determination
on Reconsideration

On April 6, 2011, the Department of Labor issued an
Affirmative Determination Regarding Application for Reconsideration
for the workers and former workers of International Business
Machines (IBM), Sales and Distribution Business Unit, Global
Sales Solution Department, off-site teleworker, Centerport, New
York. The Department’s Notice was published in the Federal
Register on April 14, 2011 (76 FR 21033). The request for
reconsideration alleges that IBM outsourced to India and China.
During the reconsideration investigation, it was revealed
that the subject firm was mischaracterized. During the
reconsideration investigation, the Department determined that the
correct subject firm name and location is International Business
Machines (IBM), Sales and Distribution Business Unit, Global
Sales Solution Department, Division 91, off-site teleworker,
Armonk, New York. The subject worker group supply computer
software development and maintenance services to the Sales and
Distribution Business Unit within IBM.
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 initial negative determination was based on the findings
that Section 222(a) and Section 222(c) of the Trade Act of 1974, as
amended (the Act) have not been satisfied because fewer than three
workers were totally or partially separated and further separations
are not threatened. The investigation also revealed that the group
eligibility requirements under Section 222(f) of the Act have not
been satisfied because the workers’ firm has not been identified by
name in an affirmative finding of injury by the International Trade
Commission.
29 CFR 90.2 states that a significant number or proportion
of the workers means at least three (3) workers in a firm (or
appropriate subdivision thereof) with a workforce of fewer than
50 workers, or five (5) percent of the workers or 50 workers,
whichever is less, in a workforce of 50 or more workers.
A careful review of the administrative record and additional
information obtained by the Department during the reconsideration
investigation confirmed that the group eligibility requirements
under Section 222(a) and (c) of the Act have not been met because
fewer than three workers were totally or partially separated from
IBM, Sales and Distribution Business Unit, Global Sales
Solution Department, Division 91, or threatened with such
separation. Moreover, new information obtained during the
reconsideration investigation confirmed that only one person
worked within Division 91 of the Sales and Distribution
Department (working on-site at Armonk, New York or reporting
remotely to Armonk, New York).
Conclusion
After reconsideration, I affirm the original notice of
negative determination of eligibility to apply for worker
adjustment assistance for workers and former workers of
International Business Machines (IBM), Sales and Distribution
Business Unit, Global Sales Solution Department, Division 91,
off-site teleworker, Armonk, New York.
Signed in Washington, D.C., on this 23rd day of May, 2011
/S/ Del Min Amy Chen
_______________________________
DEL MIN AMY CHEN
Certifying Officer, Office of
Trade Adjustment Assistance
4510-FN-P


CORRECTED: March 16, 2011

DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-74,364

INTERNATIONAL BUSINESS MACHINES (IBM)
SALES AND DISTRIBUTION BUSINESS UNIT
GLOBAL SALES SOLUTION DEPARTMENT
DIVISION 91
INCLUDING TELEWORKERS ACROSS NEW YORK
ARMONK, NEW YORK

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 July 9, 2010, by a One-Stop Operator on behalf of workers
of International Business Machines (IBM), Sales and Distribution
Business Unit, Global Sales Solution Department, Division 91,
including teleworkers across New York, Armonk, New York. The
worker group provides computer software development and
maintenance services for the Sales and Distribution Business
Unit.
The petitioner alleges that worker separations are due to a
shift of services to a foreign country. The investigation
included analysis of data provided by the workers’ firm.
With respect to Section 222(a) of the Act, the investigation
revealed that Criterion I has not been met because fewer than three
workers were separated and further separations are not threatened.

With respect to Section 222(c) of the Act, the investigation
revealed that Criterion (1) has not been met because fewer than
three workers were separated and further separations are not
threatened.
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 International Business
Machines (IBM), Sales and Distribution Business Unit, Global
Sales Solution Department, Division 91, including teleworkers
across New York, Armonk, New York, who provide computer software
development and maintenance services, are denied eligibility to
apply for adjustment assistance under Section 223 of the Act, 19
U.S.C. § 2273.
Signed in Washington, D.C., this 29th day of October, 2010

/s/Michael W. Jaffe
______________________________
MICHAEL W. JAFFE
Certifying Officer, Division of
Trade Adjustment Assistance





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