UNITED ELEC., RADIO & MACH. WKRS. OF AM. v. Brock

• Decision Date: 27 February 1990
• Docket Number: Court No. 86-11-01409.
• Citation: 731 F. Supp. 1082
• Parties: UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, United Electrical, Radio and Machine Workers of America, Local 610, Michael Murphy, James Cappetta and Edward Kristofik, Plaintiffs, v. William BROCK, Secretary of Labor, U.S. Department of Labor, Defendant.
• Court: U.S. Court of International Trade

731 F. Supp. 1082

UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, United Electrical, Radio and Machine Workers of America, Local 610, Michael Murphy, James Cappetta and Edward Kristofik, Plaintiffs, v. William BROCK, Secretary of Labor, U.S. Department of Labor, Defendant.

Court No. 86-11-01409.

United States Court of International Trade.

February 27, 1990.

United Elec., Radio and Mach. Workers of America, Robin Alexander, Neighborhood Legal Services Ass'n, John Stember and National Employment Law Project, Elizabeth S. Hough, for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, and Elizabeth C. Seastrum, Washington, D.C., for defendant.

MEMORANDUM AND ORDER

RESTANI, Judge:

Plaintiffs, representing workers at Union Switch & Signal division of American Standard, Inc., challenge the final partially negative determination of the Secretary of Labor regarding their petition for certification for Trade Readjustment Assistance. This matter is before the court for the third time.¹

In this case, the union representing workers at a Swissvale, Pennsylvania plant of Union Switch & Signal Division of American Standard, Inc. (Company) petitioned the Department of Labor (Labor) on January 17, 1986 for trade adjustment allowance certification under 19 U.S.C. § 2271 (1988). Employment at the plant, which produced railway control systems, had been in decline from 1983 until the plant shut down in 1987. Petitioners appealed Labor's initial negative determination to this court during which time Labor became aware that it had not properly investigated allegations by petitioners that the Company had been substituting foreign imports for some products produced at Swissvale. Labor asked this court to remand the case for further investigation.

Following the first remand, the case was again remanded to Labor with directions that plaintiffs be afforded access to the confidential information which Labor had elicited from the Company. Plaintiffs were allowed the opportunity to submit a brief commenting on the confidential information, along with any other responsive materials which they deemed necessary. United Elec., Radio & Machine Workers of America v. United States, 11 CIT 590, 597, 669 F.Supp. 467, 472 (1987).

After receiving the confidential information, plaintiffs submitted affidavits and documentary evidence rebutting the Company's assertion that it was not substituting imports for items normally produced at its plant in Swissvale. Labor next provided this evidence to the Company for comment. Labor provided the Company's responses to plaintiffs, who then submitted additional material and argued that the Company was not providing complete and reliable information. The Company received plaintiffs' new information and provided a set of final responses. Plaintiffs then submitted a final memorandum. Plaintiffs' Brief (P. Brief) at 4.

On July 14, 1988, Labor issued a revised determination. It appears that while Labor acknowledged that other sections of the Swissvale plant were affected by imports, it was not convinced to revise its 1987 decision to certify only three sections of the plant (60 out of approximately 500 workers). Labor, however, has now asked for a partial remand to review the effect of imported Canadian office control panels on employment at the plant.

DISCUSSION

Plaintiffs present this court with two major issues. First, was Labor's decision to certify only three sections of the Swissvale plant based on substantial evidence? Second, did defendants deny plaintiffs' statutory and/or Constitutional rights of due process by not holding a full adjudicatory hearing on the record with rights of cross-examination as provided by the Administrative Procedures Act (APA), 5 U.S.C. §§ 554, 556, 557 (1988)?

I. Substantial Evidence for Denial of Certification.

This court must uphold the finding of the Secretary if supported by substantial evidence. 19 U.S.C. § 2395(b) (1988). As this court has noted, "substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Am. Spring Wire Corp. v. United States, 8 CIT 20, 21, 590 F.Supp. 1273, 1276 (1984) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (other citations omitted)). While the reviewing "`court may not substitute its judgment for that of the agency when the choice is "between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo,"'" 8 CIT at 22, 590 F.Supp. at 1276 (citation omitted), it must "take into account `"whatever in the record fairly detracts from the agency's fact finding as well as evidence that supports it"'." (citations omitted) Id.

In order to certify a group of workers as eligible for adjustment assistance, the Secretary of Labor (Secretary) must determine that the three criteria in Section 222 of the 1974 Trade Act are met. They are:

(1) that a significant number or proportion of the workers in such workers' firm or an appropriate subdivision of the firm has become totally or partially separated, or are threatened to become totally or partially separated,

(2) that sales or production, or both, of such firm or subdivision have decreased absolutely, and

(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.

19 U.S.C. § 2272(a) (1988).²

There is no dispute that plaintiffs have satisfied the first two conditions for certification. Defendant's Brief (D. Brief) at 5. The fundamental issue before the Secretary was whether importation of products which directly competed with those produced and tested at the Swissvale plant contributed importantly to worker separations. Labor found that this third factor was met with regard to only sections 110, 222, and 390 of the Swissvale plant.

The three major items involved in this litigation are office control panels imported from Canada, train stop kits imported from Italy, and relay frames imported from Korea. The court will look at each item in turn.

A. Canadian Office Control Panels.

Plaintiffs allege that the Company imported large office control panels from Canada which contributed importantly to worker separation in nearly every section of the plant. P. Brief at 10-11, Plaintiffs' Appendix at 5-9. Plaintiffs requested that Labor obtain the "travelers" of a display panel for its investigation. According to Labor,

the "travelers" were documents that followed a specific job through the several plant departments but company officials stated that these records were not retained once a job was completed. However, process sheets — which contain the information on the "traveler" plus additional information on costs were available and were obtained for typical panel production operations. In addition a complete cost sheet for the production of an average panel was obtained plus detailed employee lists by Department.

A-54.³ This information, which included the man-hours used up in various divisions of the plant during construction of a "typical" panel was included in the administrative record at A-29-37, 43, pursuant to Labor's subpoena. A-26. Moreover, a Company vice president informed Labor at a meeting on May 18, 1987, that Swissvale would produce about 25 panels in a typical year. A-28. In a phone conversation with Labor, the official stated that only three sections of the plant were affected by importation of Canadian office panels: Fabrication Department 110, Systems Wiring Department 222, and Plating Department 390. Id. On this basis, Labor, in its revised determination, certified these and only these three sections of the plant. A-57, C-198.⁴

Evidence in the record, however, indicates that the information which the Company provided to Labor refers not to an office panel, but rather to a "B-30" panel which is much smaller, less complicated, and takes many fewer man-hours to construct. C-52-55, C-77-80. Plaintiffs also contend that "the bill of materials the company provided does not list all of the parts used in an office panel. Each individual part, in turn, has its own route sheet and bill of materials. Therefore, to determine the actual time and all the sections involved in production, Labor would need the bill of materials and route sheets for the panel and all of its component parts." P. Brief at 13.

According to the affidavit of a former general foreman at the Swissvale plant, another reason that the Company-supplied information did not lead Labor to conclude that the importation of Canadian office control panels affected more than three sections was that

process Sheets alone may not reflect how a part is actually made. It was very common for other sections of the plant to perform an operation which, according to the process sheet, was performed elsewhere. For instance, there were certain operations which had to be performed on the office control panels and frames which were listed on the Route Sheets as performed by Section 110. In actuality, they were performed by the machine shop. A change of this type would be reflected on a "move ticket," which is not part of the Process Sheet but is used by the Company to bill customers.

C-78-79.

Defendant now concedes that a question remains as to the impact of imported Canadian panels on employment at the plant and requests the court to remand the case to Labor for further fact-finding on this point. This court grants Labor's request. If Labor does not accept plaintiffs' assertion that importation of Canadian office panels contributed importantly to worker separation in nearly every section of the plant, then the...