Commc'ns Workers of Am. Local 4123 ex rel. Former Emps. of AT&T Servs., Inc. v. U.S. Sec'y of Labor
| Decision Date | 04 May 2021 |
| Docket Number | Court No. 20-00075,Slip Op. 21-53 |
| Citation | 518 F.Supp.3d 1342 |
| Parties | COMMUNICATIONS WORKERS OF AMERICA LOCAL 4123, ON BEHALF OF Former Employees of AT&T SERVICES, INC., Plaintiff, v. U.S. SECRETARY OF LABOR, Defendant. |
| Court | U.S. Court of International Trade |
Devin S. Sikes, Akin Gump Strauss Hauer & Feld LLP of Washington, DC, argued for Plaintiffs. With him on the brief were Bernd G. Janzen and Tebsy Paul.
Ashley Akers, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice of Washington, DC, argued for Defendant. With her on the brief were Jeffrey Bossert Clark, Acting Assistant Attorney General; Jeanne E. Davidson, Director; and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Tecla A. Murphy, Attorney Advisor, Employment and Training Legal Services, Office of the Solicitor, U.S. Department of Labor of Washington, DC.
Several decades ago, Congress established a remedial program to provide benefits to American workers displaced by the offshoring of manufacturing or service jobs. See Former Emps. of BMC Software, Inc. v. U.S. Sec'y of Labor , 454 F. Supp. 2d 1306, 1307 (CIT 2006) (). In this case, a union challenges the Labor Department's denial of benefits to former AT&T call center employees under that program. The Court agrees with the union that Labor's summary denial of benefits is not supported by substantial evidence, and remands for further proceedings consistent with this opinion.
In the Trade Act of 1974, Congress updated a preexisting mechanism for providing benefits—referred to as "trade adjustment assistance"—to Americans who lose their jobs, or whose work hours and pay are reduced, due to foreign trade. See 19 U.S.C. § 2271 et seq. ; see also U.S. Dep't of Labor, Getting Back to Work After a Trade Related Layoff , at 2, https://www.dol.gov/sites/dolgov/files/ETA/tradeact/pdfs/program_brochure2014.pdf (accessed May 3, 2021).
Under that statute, a group of workers in the same firm, their union, or their authorized representative may petition the Department of Labor to certify them as eligible to apply for trade adjustment assistance benefits and services. See 19 U.S.C. § 2271(a)(1) ; see also Getting Back to Work , above. Once Labor receives a petition, it investigates whether the circumstances of the workers’ layoff satisfy certain statutory criteria. See Getting Back to Work , above.
As relevant here, those criteria are as follows:
19 U.S.C. § 2272(a).
Thus, as relevant here, for a group of workers to receive certification of eligibility for trade adjustment assistance, they must satisfy §§ 2272(a)(1) (), (a)(2)(B)(i) (show that the services they formerly provided are now provided abroad), and (a)(2)(B)(ii) (show that the foreign provision of such services "contributed importantly" to their separation). The dispute here involves Labor's determination regarding the second of these requirements.
In determining whether to certify a group of workers as eligible under these criteria, Labor must "obtain from the workers’ firm ... information the Secretary determines to be necessary to make the certification, through questionnaires and in such other manner as the Secretary determines appropriate." 19 U.S.C. § 2272(d)(1). The statute directs the Secretary to require a firm to "certify" all information submitted in response to questionnaires. Id. § 2272(d)(3)(A)(i). The Secretary must also require certification of all other information obtained from a firm or a customer "on which the Secretary relies in making a[n eligibility] determination ..., unless the Secretary has a reasonable basis for determining that such information is accurate and complete without being certified." Id. § 2272(d)(3)(A)(ii).1
Labor's regulations require the Department to issue either a certification of eligibility or a notice of negative determination specifying the reasons for the negative decision, and in either case to publish in the Federal Register a summary of the determination and the reasons for making it. 29 C.F.R. § 90.16(c), (f). If Labor returns an affirmative determination, the Department also issues a "certification of eligibility" allowing the workers to apply individually for benefits and services. Id. § 90.16(c) ; see also Getting Back to Work , above ("Workers in a certified group ... may apply for individual eligibility for benefits and services."). If Labor returns a negative determination, the workers may ask the Department to reconsider. See generally 29 C.F.R. § 90.18.2
Following a final negative determination, a worker, a group of workers, a certified or recognized union, or the group's authorized representative may commence a civil action in this Court for review of the determination. See 19 U.S.C. § 2395(a).
In March 2019, Communications Workers of America Local 4123 filed a petition for trade adjustment benefits on behalf of AT&T "Consumers Group" employees at the Kalamazoo (Michigan) Lovell Call Center. AR3. The petition alleged that AT&T established call centers in multiple foreign locations, including Mexico, the Philippines, and the Caribbean, and that during 2019 AT&T planned to close the Kalamazoo call center and four other call centers operated by the company. AR3–4.3 Thereafter, Labor agreed to deem the petition as also encompassing the four other call centers (in Appleton, Wisconsin; Indianapolis, Indiana; Syracuse, New York; and Meriden, Connecticut). AR14–15.
In support of its petition, the union submitted its own "AT&T Jobs Report" asserting that the company closed multiple call centers and laid off several thousand workers while shifting work to lower-wage contract workers, many of them located abroad. AR20. The report identified the Indianapolis, Kalamazoo, and Appleton call centers as locations facing imminent closure. AR20. The union further contended that AT&T opened a call center in Mexico and planned to expand it by moving jobs away from U.S.-based locations. AR22.
Following receipt of the petition, Labor contacted AT&T officials and asked that they complete questionnaires relating to the five call centers identified by the union. AR26–35, AR38–42, AR43–45.4
Among other things, the questionnaire responses specifically addressed the reasons for the call center closures and the potential loss of jobs. AT&T stated that three of the call centers closed because they were being consolidated into other domestic call centers. AR53 (Appleton), AR63 (Indianapolis), AR73 (Kalamazoo). AT&T stated that the other two call centers closed because their operations were being moved to other domestic locations. AR92 (Meriden), AR106 (Syracuse). For all five call centers, AT&T emphasized that displaced employees were offered the opportunity to move to the new call center locations or to train for alternative positions and further emphasized that all work was remaining in the United States. AR53, AR63, AR73, AR92, AR106.
Following AT&T's submission of the questionnaire responses, Labor's investigator e-mailed AT&T's in-house counsel a series of informal follow-up questions. The transmittal e-mail stated that the union had identified (1) an individual who worked in Jamaica but reported to a manager in the Appleton call center and (2) an individual who worked in the Philippines but reported to a manager in Brecksville, Ohio, "which is another location that has laid off hundreds of Union workers." AR114 (quoting the union's allegations). Based on that information and on AT&T's questionnaire responses, Labor asked AT&T whether the allegations that foreign workers were supervised by U.S. managers were true; if so, AT&T was to answer a series of further questions. AR114.
AT&T's in-house counsel responded—in the same informal e-mail format as Labor's inquiries—that the allegations were not true and that the foreign workers were employed by vendors, supervised by vendor managers, and handled calls that were never serviced by employees in the Kalamazoo, Appleton, or Indianapolis call centers. AR122; see also AR126 (response for Syracuse and Meriden that referred to the response for the other three centers).
Following the receipt of AT&T's e-mail responses to the investigator's inquiries, someone at Labor—presumably the investigator—prepared an unsigned "investigative report" that determined that the loss of jobs at the five call center locations was not attributable to the company's offshoring of the work. AR141 et seq. The report summarized the factual record discussed above and stated that AT&T "reported that they have not shifted the supply of services like or directly competitive to those of the workers to a foreign country nor acquired any services...
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