DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-74,733

XPEDITE SYSTEMS, LLC
DEERFIELD BEACH, FLORIDA

Notice of Negative Determination
on Reconsideration

On March 4, 2011, the Department of Labor issued an
Affirmative Determination Regarding Application for Reconsideration
for the workers and former workers of Xpedite Systems, LLC, a
subsidiary of Easylink Services International Corporation,
formerly a subsidiary of Premier Global Services, Inc., Deerfield
Beach, Florida (Xpedite). The Department’s Notice was published
in the Federal Register on March 17, 2011 (76 FR 14698). Workers
of the subject firm are engaged in activities related to the
supply of communication, applications, and support services.
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 Trade Adjustment Assistance (TAA) petition is dated
October 8, 2010 and was filed by three workers who supplied
“application development & support” services and were separated
on October 30, 2009. The petition states that worker separations
occurred because “services outsourced to India – Development &
Testing, Russia – Development.”
The initial investigation was based on the Department’s
findings that imports of services like or directly competitive with
those supplied by the workers of Xpedite did not increase during
the relevant period; there has not been a shift to a foreign
country by the workers’ firm in the supply of (like or directly
competitive) services; and Xpedite did not supply a service that
was used by a firm that employed a worker group eligible to apply
for TAA and used the services supplied by the subject firm in the
production of an article or supply of a service that was the
basis for the afore-mentioned TAA certification.
In the request for reconsideration, the workers provide a
summary of their allegations: “. . . there was a contract between
Xpedite and AppLabs, an Indian company to do customer development
work. Xpedite’s Sales staff are promoting custom development work
on Xpedite’s platform to gain customers that need custom data
transfers. Xpedite was also using AppLabs for migration work.
AppLabs employees located in India are writing/testing custom
software applications on Xpedite’s platform. In the long run
employees in India replaced” workers at the Deerfield Beach,
Florida facility.
The workers attached a document titled “Contract Highlights”
which included a process map with the following sequence of
events: “AppLabs completes SOW (SOW template) reviewed by SE
before going to customer” --> “SOW delivered to customer,
documented in Workflow tool” --> “Customer signs off on SOW” -->
“App Labs builds and does initial testing on request” -->
“Depending on Project Management Ownership, customer is contacted
for test/confirmation of work.” The request also included a
document titled “Ancillary Processes and Service Level Agreements
(SLA)” that provides narrative support to the process map and a
spreadsheet that identifies AppLabs projects, including
“migration projects to remove Xpedite’s existing customers from
old outdated platforms to Xpedite’s current platform.”
In a subsequent communication with the Department, a
petitioning worker stated that “PWI Technologies was another
company that did custom software development work for Xpedite”
and asserted that it is possible that “Xpedite stopped using PWI
Technologies for software development . . . when they went into
the contract with AppLabs.”
During the course of the reconsideration investigation,
Xpedite addressed multiple worker allegations and provided
additional materials, including a copy of a Strategic Agreement
with AppLabs Technologies Private Limited (AppLabs). In making
its determination on reconsideration, the Department carefully
reviewed all responses and material submitted during the
reconsideration investigation and the administrative record.
A careful review of information previously-submitted by
Xpedite revealed that prior to October 21, 2010, Xpedite was a
wholly-owned subsidiary of Premier Global Services, Inc.
Effective October 21, 2010, Xpedite was acquired by EasyLink
Services International Corporation in a stock purchase.
The definition of a firm includes an individual
proprietorship, partnership, joint venture, association,
corporation (including a development corporation), business trust,
cooperative, trustee in bankruptcy, and receiver under decree of
any court. Further, a firm, together with a predecessor or
successor-in-interest, or together with any affiliated firm
controlled or substantially beneficially owned by substantially the
same people, may be considered a single firm. 29 CFR 90.2
The careful review of previously-submitted information also
revealed that Xpedite Systems, LLC had an affiliated facility in
Tinton Falls, New Jersey that supplied some of the same services,
and that operations were consolidated to the New Jersey facility
in October 2009. Workers whose functions were not eliminated due
to the domestic consolidation remained at the Florida facility
until the acquisition of the subject firm by EasyLink Services
International Corporation in October 2010.
Because the petition and filing dates precede the change in
ownership, and because of the regulatory definition of a firm,
the Department determines that, for purposes of this TAA
investigation only, the subject firm is Xpedite Systems, LLC, a
subsidiary of Premier Global Services, Inc., Deerfield Beach,
Florida (Xpedite Systems, LLC), and the subject worker group
consists only of former workers of Xpedite Systems, LLC, a
subsidiary of Premier Global Services, Inc., Deerfield Beach,
Florida. There were no leased or temporary workers at the
subject firm from October 1, 2009 through October 21, 2010.
During the reconsideration investigation, the Department
obtained a copy of a Strategic Agreement entered into by Xpedite
Systems, LLC and AppLabs on October 13, 2009. Based on a careful
review of the agreement, the Department determines that Xpedite
Systems, LLC and AppLabs are two separate entities and do not
constitute a single firm.
Section 222(a)(2) of the Trade Act of 1974, as amended, 19
U.S.C. § 22272(a)(2), states that the shift in supply of services
criterion may be met if there was a shift by the workers’ firm to
a foreign country in the supply of services like or directly
competitive with the services supplied by the workers’ firm.
Because Xpedite Systems, LLC and AppLabs are separate firms,
a shift to/acquisition from a foreign country of services by
AppLabs is no a shift to/acquisition from a foreign country of
services by Xpedite Systems, LLC. Consequently, the shift in the
supply of services by AppLabs to India cannot be a basis for
certification of workers of Xpedite Systems, LLC. Further, the
reconsideration investigation revealed that Xpedite Systems, LLC
did not contract with AppLabs, PWI Technologies, or any other
entity to perform like or directly competitive services in a
foreign country.
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 Xpedite
Systems, LLC, a subsidiary of Premier Global Services, Inc.,
Deerfield Beach, Florida.
Signed in Washington, D.C, on this 28th day of September, 2011
/s/ Del Min Amy Chen
_______________________________
DEL MIN AMY CHEN
Certifying Officer, Office of
Trade Adjustment Assistance
4510-FN-P


DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-74,733

XPEDITE SYSTEMS, LLC
A SUBSIDIARY OF EASYLINK SERVICES INTERNATIONAL CORPORATION
DEERFIELD BEACH, FLORIDA

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 18, 2010, on behalf of workers of Xpedite
Systems, LLC, a subsidiary of EasyLink Services International
Corporation, Deerfield Beach, Florida. The workers provide
communication, applications, and support services.
The petitioners’ allege that the worker separations are due to
a shift of services to India and Russia. 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 II has not been met because imports of
services like or directly competitive with the communication,
applications, and support services supplied by the workers have
not increased and there has not been a shift of services to a
foreign country by the workers’ firm.
With respect to Section 222(c) of the Act, the investigation
revealed that Criterion (2) has not been met because the firm 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.
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 Xpedite Systems, LLC, a
subsidiary of EasyLink Services International Corporation,
Deerfield Beach, Florida who provide communication, applications,
and support 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 26th day of January, 2011

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






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