United Glass and Ceramic Workers of North America, AFL CIO v. Marshall, AFL-CI

Citation189 U.S.App.D.C. 240,584 F.2d 398
Decision Date08 June 1978
Docket NumberAFL-CI,AFL-CIO,G,No. 76-1982,76-1982
PartiesUNITED GLASS AND CERAMIC WORKERS OF NORTH AMERICA,lass Bottle Blowers Association of the United States and Canada,, and Stone, Glass and Clay Coordinating Committee, Petitioners, v. F. Ray MARSHALL, Secretary of Labor, and James D. Hoover, Acting Executive Assistant to the Deputy Under Secretary, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Eugene L. Stewart, Washington, D. C., with whom Daniel Rooney, Washington, D. C., was on brief, for petitioners.

John R. Garson, Atty., Dept. of Labor, Donald S. Shire, Associate Sol. and Anna Holmberg, Atty., Dept. of Labor, Washington, D. C., were on brief, for respondents.

Before LEVENTHAL, MacKINNON and WILKEY, Circuit Judges.

Opinion for the Court filed by LEVENTHAL, Circuit Judge.

Like UAW v. Marshall, --- U.S.App.D.C. 189, 584 F.2d 390 (1978), also decided today, this case involves a challenge to a decision of the Secretary of Labor denying a request for certification for worker adjustment assistance under the Trade Act of 1974. At issue is interpretation of the phrase "contributed importantly" as used in § 222(3) of the Trade Act. That subsection states:

The Secretary shall certify a group of workers as eligible to apply for adjustment assistance under this part if he determines

(3) that increases of imports of articles like or directly competitive with articles produced by such workers' firm or an appropriate subdivision thereof Contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production. 1

We affirm the decision of the Secretary denying certification.

I. BACKGROUND AND CONTENTIONS ON APPEAL

On June 13, 1976, the Mount Vernon, Ohio, sheet glass manufacturing facilities of Pittsburgh Plate Glass (PPG) Industries, Inc., were closed and the workers laid off for an indefinite period. On June 21, 1976, the Stone, Glass and Clay Coordinating Committee, on behalf of the unions representing the Mount Vernon workers, submitted to the Secretary of Labor a petition for eligibility to apply for worker adjustment assistance. The Certifying Officer, acting under delegation by the Secretary, denied the petition, concluding that increased imports did not contribute importantly to separations and the decline in sales and production at the Mount Vernon facility. 2 The Committee petitioned for reconsideration of that determination. After a second investigation, the Secretary again declined to certify the workers at the Mount Vernon plant. The unions filed a petition in this court to review that order. 3

The petitioners claim that in concluding that imports did not contribute importantly to separations at the Mount Vernon plant, the Secretary misinterpreted the phrase "contributed importantly" and made findings not based on substantial evidence. They maintain, indeed, that properly viewed through the lens of the statute, the Secretary's own findings establish that increased imports did contribute importantly to the Mount Vernon separations. They further contend that the investigative methodology employed by the Office of Trade Adjustment Assistance resulted in an understating of the impact of imports on the Mount Vernon facility. Our analysis of the statute and the Secretary's approach leads us to reject these contentions.

A. The Meaning of "Contributed Importantly" as used in the Trade Act of 1974

As this court notes in UAW v. Marshall, supra, the legislative history of the Trade Act of 1974 indicates that Congress chose the phrase "contributed importantly" in a conscious effort to make adjustment assistance more readily available than it had been under the Trade Expansion Act of 1962. In the earlier act the requirement had been that imports be shown to be a "major cause" of the separations. 4 " 'Major' ha(d) been understood to mean greater than all other factors combined." 5 In contrast, § 222 of the 1974 Trade Act defines a cause that "contributes importantly" as "a cause which is important but not necessarily more important than any other cause."

The legislative history gives very little guidance on the meaning of "importantly" in this context. The pertinent Senate committee report observed:

A cause must be significantly more than De minimis to have contributed importantly, but the Committee does not believe that any mechanical designation such as a percentage of causation can be realistically applied. 6

That report went on to observe that "total or partial separations that would have occurred regardless of the level of imports, e. g., those resulting from domestic competition, seasonal, cyclical, or technological factors are not intended to be covered by the program." 7

Congress therefore did not afford a precise definition of the phrase "contributed importantly." Petitioners attempt to divine more precision by invoking a number of analogies, all aimed at associating a percentage of causality with the term "important." For example, petitioners note that one criterion for worker adjustment assistance certification is "that a Significant number or proportion of the workers . . . become totally or partially separated." 8 One meaning of "significant" is "important." Petitioners argue that Congress intended the term "significant" to encompass as little as "5 percent of the workers" at a firm. 9 They contend that a cause of a similar relative magnitude must be deemed to be one that "contributed importantly."

Petitioners also point to findings of the International Trade Commission (ITC), formerly the United States Trade Commission. Under the Trade Act of 1974, the ITC is responsible for investigating "whether an article is being imported into the United States in such increased quantities as to be a Substantial cause of serious injury, or the threat thereof, to the domestic industry producing an article like or directly competitive with the imported article." 10 The Commission is to report its findings to the President, who is to provide import relief in the form of duties, tariff-rate quotas, quantitative restrictions, or orderly market agreements if he finds such relief is in the public interest. 11 Petitioners focus on the ITC's interpretation of "a substantial cause of serious injury" because that encompasses a finding that the cause is "important," which in turn bears some similarity to a determination that a cause "contributes importantly." 12 Petitioners conclude:

On several occasions, the Commission has determined that increased imports were an important cause of injury, though not necessarily a coequal cause, even though imports were only one of several causes and, statistically, imports increased their market penetration by less than 10 percent and captured less than 20 percent of the domestic market. Besides both indirect and direct evidence of lost sales, the Commission also looks to the price-suppressing influence exerted by lower priced imports. 13

Finally, petitioners contend that Congress intended relief to be available, even where the impact of imports is ambiguous. In support of this proposition, they note that imports need only increase relatively to meet the "increased imports" requirement clearly Congress's attempt to facilitate a finding of causality notwithstanding a plethora of reasons for separations in a declining market. 14

These lines of analysis have some bearing, but they cannot prevail if we accept the Secretary's key finding that the relative importance of imports is fairly captured in the fact that customers who decreased purchases from Mount Vernon and increased purchases of imports represented less than 8% And 4% Of surveyed Mount Vernon sales in 1974 and 1975, respectively.

Petitioners apparently concede that if this finding stands, the court cannot rule as a matter of law that the "contributed importantly" criterion is satisfied. 15 Therefore, as a crucial coordinate contention, petitioners maintain that the Secretary's factual findings reflect a lack of understanding of the statutory criteria and mischaracterize the data. We turn to the Secretary's factual findings and investigative methodology.

B. Investigative Methodology
1. The OTAA Studies

The Office of Trade Adjustment Assistance (OTAA) of the Department of Labor is responsible for investigating worker adjustment assistance petitions. 16 It conducted two investigations regarding the workers at the Mount Vernon plant. In the first investigation, OTAA included a trade and industry analysis that identified a number of salient characteristics of, and trends in, the sheet glass industry and the larger, encompassing flat glass industry. These characteristics and trends may be summarized as follows:

1) The flat glass industry is composed of producers of sheet glass, float glass and plate glass. These glass types are products of different manufacturing processes, but are highly substitutable in application.

2) Recent technological progress in the manufacture of float glass has led to substantial displacement of plate and heavy sheet glass by float glass in the domestic market. 17 The sheet glass share of the domestic production of flat glass declined from 24.4% In 1974 to 16.3% In 1975.

3) The drop in domestic automobile production and in building construction during the 1973-1975 period had serious adverse effects on the domestic glass industry. 18

OTAA then went on to look at specific circumstances at the Mount Vernon plant. It conducted a survey of customers of the Mount Vernon plant as well as domestic users of sheet glass who purchased their requirements elsewhere. Twelve customers of the Mount Vernon plant, representing 36.2% Of its sales, were questioned to determine whether they were decreasing their purchases from PPG and increasing their purchases of imports. Eight of the 12 customers stated that they had increased their purchases from the Mount Vernon...

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