Former Employees of Henderson Sewing MacHines v. United States Secretary of Labor

Slip Op. 03-35

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

________________________________________
:
FORMER EMPLOYEES OF HENDERSON :
SEWING MACHINES, :
:
Plaintiffs, :
: Court No. 01-00883
v. :
:
UNITED STATES SECRETARY OF LABOR, :
:
Defendant. :
________________________________________:

Plaintiffs, Former Employees of Henderson Sewing Machines
(“plaintiffs”)1, move pursuant to USCIT R. 56.1 for judgment upon
the agency record or, in the alternative, for a re-remand of this
case for further investigation, challenging the United States
Secretary of Labor’s (“Labor”) determinations entitled: (1) Notice
of Negative Determination on Remand of Henderson Sewing Machine
Company, Inc. Andalusia, Georgia (“Negative Determination II”), 67
Fed. Reg. 18,927 (April 17, 2002); and (2) Notice of Determinations
Regarding Eligibility To Apply for Worker Adjustment Assistance and
NAFTA Transitional Adjustment Assistance (“Negative Determination

1
In the brief and response brief of Former Employees of
Henderson Sewing Machines, Sharon L. Cobb appears as the sole
plaintiff in this action. See Pl. Sharon Cobb’s Mot. J. Agency R.
(“Pls.’ Mot.”) and Pl.’s Resp. Def.’s Opp’n Pl.’s Mot. J. Agency R.
(“Pls.’ Resp.”). However, in Def.’s Resp. Opp’n Pls.’ Mot. J.
Agency R. (“Def.’s Resp. Opp’n), the United States Secretary of
Labor (“Labor”) makes reference to plaintiffs rather than Sharon L.
Cobb (“Cobb”) as the sole plaintiff. The Court notes that since
Cobb is appearing on behalf of the Former Employees of Henderson
Sewing Machines, the Court will consider Cobb’s brief and response
brief as filed on behalf of all plaintiffs (that is, Former
Employees of Henderson Sewing Machines) and not solely on behalf of
Cobb as plaintiff.
Court No. 01-00883 Page 2

I”), 66 Fed. Reg. 47,240 (Sept. 11, 2001).2 Specifically,
plaintiffs contend that Labor erred in denying plaintiffs’
certification of eligibility for trade adjustment assistance on the
basis that plaintiffs did not produce an article, plaintiffs did
not qualify as support service workers and Henderson did not
produce an article affected by increased imports that contributed
importantly to plaintiffs’ separation from Henderson.

Held: Plaintiffs’ 56.1 motion is denied; case dismissed.

Dated: March 25, 2003

Robins, Kaplan, Miller & Ciresi L.L.P., (Charles A. Hunnicutt)
for Former Employees of Henderson Sewing Machines, plaintiffs.

Robert D. McCallum, Jr., Assistant Attorney General; David M.
Cohen, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice (Lucius B. Lau, Assistant
Director, and John N. Maher); of counsel: Louisa M. Reynolds,
Office of the Solicitor, United States Department of Labor, for the
United States, defendant.

OPINION

TSOUCALAS, Senior Judge: Plaintiffs, Former Employees of

Henderson Sewing Machines (“plaintiffs”), move pursuant to USCIT R.

56.1 for judgment upon the agency record or, in the alternative,

for a re-remand of this case for further investigation, challenging

the United States Secretary of Labor’s (“Labor”) determinations

entitled: (1) Notice of Negative Determination on Remand of

Henderson Sewing Machine Company, Inc. Andalusia, Georgia

2
Labor notes that “[i]n the Federal Register, Labor
misidentified the location of the facility at which the instant
plaintiffs worked. Although the facility is actually in Alabama,
Labor misstated, due to clerical error, that the facility is in
Georgia.” Def.’s Resp. Opp’n at 2 n.1.
Court No. 01-00883 Page 3

(“Negative Determination II”), 67 Fed. Reg. 18,927 (April 17,

2002); and (2) Notice of Determinations Regarding Eligibility To

Apply for Worker Adjustment Assistance and NAFTA Transitional

Adjustment Assistance (“Negative Determination I”), 66 Fed. Reg.

47,240 (Sept. 11, 2001). Specifically, plaintiffs contend that

Labor erred in denying plaintiffs’ certification of eligibility for

trade adjustment assistance on the basis that plaintiffs did not

produce an article, plaintiffs did not qualify as support service

workers and Henderson did not produce an article affected by

increased imports that contributed importantly to plaintiffs’

separation from Henderson.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 19

U.S.C. § 2395(c) (2000) and 28 U.S.C. § 1581(d)(1) (2000).

STANDARD OF REVIEW

In reviewing a challenge to Labor’s determination of

eligibility for trade adjustment assistance, the Court will uphold

Labor’s determination if it is supported by substantial evidence on

the record and is otherwise in accordance with law. See 19 U.S.C.

§ 2395(b) (2000); Former Employees of Marathon Ashland Pipeline v.

Chao, 26 CIT __, __, 215 F. Supp. 2d 1345, 1350 (2002) (citing

Woodrum v. Donovan, 5 CIT 191, 193, 564 F. Supp. 826, 828 (1983),
Court No. 01-00883 Page 4

aff’d, Woodrum v. United States, 737 F.2d 1575 (Fed. Cir. 1984));

Former Employees of Barry Callebaut v. Herman, 25 CIT __, __, 177

F. Supp. 2d 1304, 1308-09 (2001). Pursuant to 19 U.S.C. § 2395(b),

Labor’s findings of fact are conclusive if they are supported by

substantial evidence. See 19 U.S.C. § 2395(b). “Substantial

evidence is something more than a ‘mere scintilla,’ and must be

enough reasonably to support a conclusion.” Ceramica Regiomontana,

S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966

(1986), aff’d, 810 F.2d 1137 (Fed. Cir. 1987); see also

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

“Additionally, ‘the rulings made on the basis of those findings

[must] be in accordance with the statute and not be arbitrary and

capricious, and for this purpose the law requires a showing of

reasoned analysis.’” Former Employees of Marathon Ashland, 26 CIT

at __, 215 F. Supp. 2d at 1350 (quoting Former Employees of General

Electric Corp. v. U.S. Dep’t of Labor, 14 CIT 608, 610-11

(1990)(citation omitted)).

Moreover, although “‘the nature and extent of the

investigation are matters resting properly within the sound

discretion of [Labor,]’” Former Employees of Galey & Lord Indus. v.

Chao, 26 CIT __, __, 219 F. Supp. 2d 1283, 1286 (2002) (quoting

Former Employees of CSX Oil & Gas Corp. v. United States, 13 CIT

645, 651, 720 F. Supp. 1002, 1008 (1989) (citation omitted)),
Court No. 01-00883 Page 5

“‘[g]ood cause [to remand] exists if [Labor’s] chosen methodology

is so marred that [Labor’s] finding is arbitrary or of such a

nature that it could not be based on substantial evidence.’”

Former Employees of Galey & Lord Indus., 26 CIT at __, 219 F. Supp.

2d at 1286 (quoting Former Employees of Barry Callebaut, 25 CIT at

__, 177 F. Supp. 2d at 1308 (citations omitted)). “However, in

evaluating the evidence underlying [Labor’s] conclusions, the court

may consider only the administrative record before it.” Former

Employees Marathon Ashland, 26 CIT at __, 215 F. Supp. 2d at 1350.

DISCUSSION

I. Labor’s Decision to Deny Plaintiffs Trade Adjustment
Assistance

A. Background

On June 29, 2001, Henderson’s vice president signed a petition

for trade adjustment assistance (“TAA”) under Section 221(a) of the

Trade Act of 1974, as amended (that is, 19 U.S.C. § 2271(a)

(2000)), which was filed with Labor on behalf of plaintiffs who

were separated from employment with Henderson on June 22, 2001.3

See Admin. R. at 1.

3
The plaintiffs in this action who were separated from
employment with Henderson located in Andalusia, Alabama, were Cobb
and Elaine Scott. See Admin. R. at 1.
Court No. 01-00883 Page 6

In response to the petition, Labor initiated an investigation

to determine whether plaintiffs were entitled to TAA. During the

investigation, Labor: (1) reviewed the June 29, 2001, petition and

accompanying attachments, see Def.’s Resp. Opp’n Pls.’ Mot. J.

Agency R. (“Def.’s Resp. Opp’n) at 2; (2) sent a “Business

Confidential Data Request” form to Henderson, see Admin. R. at 11-

13 (confidential version); and (3) “surveyed [Henderson’s] major

declining customers.” Def.’s Resp. Opp’n at 3; see also Admin. R.

at 14-17 (confidential version). The June 29, 2001, petition

signed by Henderson’s vice president described plaintiffs’ jobs at

Henderson as “accounting”4 and indicated a response of “textile

industry” to a question asking for “a description of the articles

(products) produced by the firm . . . [to] include such information

as the common and technical names of the articles, [as well as] the

method of manufacture.” Admin. R. at 1. On July 16, 2001,

Henderson’s vice president completed the “Business Confidential

Data Request” form providing sales and employment data, but no

production data. See Admin. R. at 11 (confidential version).

Additionally, Henderson’s vice president indicated that Henderson

manufactures sewing machine parts. See id.; see also Admin. R. at

3.

4
“In a June 25, 2001 letter attached to the [June 29, 2001]
petition,” Def.’s Resp. Opp’n at 3, Henderson’s vice president
stated that “Cobb has worked for [Henderson] for more than 10
years, as accounts payable clerk.” Admin. R. at 2.
Court No. 01-00883 Page 7

Subsequent to the investigation, Labor in its “Findings of the

Investigation” revealed in pertinent part that

[w]orkers [that is, the plaintiffs in this action] at the
Henderson Sewing Machine Company, Inc. in Andulusia,
Alabama were engaged in accounting services for the
company. The subject firm is involved in sales and
distribution of industrial sewing machine parts.

. . .

A survey was conducted for the major declining customers
of the subject firm [that is, Henderson].

None of the customers increased import purchases of parts
for sewing machines, while decreasing purchases of the
subject firm [that is, Henderson].

Admin. R. at 18-19. Moreover, on August 29, 2001, Labor determined

that the plaintiffs formerly employed at Henderson were not

eligible to receive worker adjustment assistance under section 223

of the Trade Act of 1974 (that is, 19 U.S.C. § 2273 (2000)).

See Admin. R. at 20-21. Labor reasoned that:

The investigation revealed that the workers of
[Henderson] did not produce an article within the meaning
of Section 223(3) [sic]5 of the Trade Act of 1974 [that
is, 19 U.S.C. § 2272(a)(3) (2000)]. [Labor] has
consistently determined that the performance of services
does not constitute production of an article, as required
by the Trade Act of 1974, and this determination has been
upheld in the [United States] Court of Appeals.

Workers of [Henderson] may be certified only if
their separation was caused importantly by a reduced
demand for their services from a parent firm, a firm
otherwise related to the subject firm by ownership, or a
firm related by control. Additionally, the reduction in

5
The Court assumes that Labor intended to cite to Section
222(3) of the Trade Act of 1974.
Court No. 01-00883 Page 8

demand for services must originate at a production
facility whose workers independently meet the statutory
criteria for certification and the reduction must
directly relate to the product impacted by imports.
These conditions have not been met for workers performing
services at [Henderson].

Admin. R. at 20-21. Labor sent notices of its decision to

plaintiffs on September 10, 2001, see Admin. R. at 23-24, and

published its notice of the negative determination on September 11,

2001. See Negative Determination I, 66 Fed. Reg. at 47,241.

On October 15, 2001, one of the plaintiffs in this action

(that is, Cobb), filed a letter along with enclosures, deemed a

summons and complaint, stating in pertinent part that “[Cobb]

started part time in 1980 working as [an] account receivable clerk

[at Henderson], and within two-three years was asked to go full

time . . . [and] was then changed to [an] account payable clerk[.]”

Cobb further stated that Henderson “does not produce products,

[but] . . . res[ells] commercial sewing machines and parts to

sewing factories.” Subsequently, in Cobb’s “Amended Affidavit in

Support of Motion to Proceed in Forma Pauperis,” Cobb stated that

“Henderson R&D Dept. does produce parts for use on commercial

sewing machines.”

On December 7, 2001, this Court granted Labor’s consent motion

for voluntary remand and ordered Labor to conduct a further

investigation and to make a redetermination as to whether
Court No. 01-00883 Page 9

petitioners are eligible for certification for worker adjustment

assistance benefits. During the remand investigation, Labor: (1)

contacted various customers of Henderson, see Admin. R. at 33, 34,

36, 37, 38 (confidential version); (2) sent a “Business

Confidential Data Request” form to Henderson, see id. at 29-32; and

(3) “contacted Mr. Henderson, the company vice-president, who

responded in writing.” Def.’s Resp. Opp’n at 6; see also Admin R.

at 39 (confidential version). In response to the remand

investigation, the following occurred: (1) the various customers of

Henderson responded that Henderson was “involved in sales and

distribution of sewing machines and parts[,]” Def.’s Resp. Opp’n at

5, see Admin. R. at 33, 34, 36 (confidential version); (2)

Henderson’s vice president completed the “Business Confidential

Data Request” form providing sales and employment data, but no

production data, and further indicated that Henderson manufactures

sewing machine parts and machines, see Admin. R. at 29

(confidential version); and (3) Henderson’s vice president

responded to Labor in a letter describing Henderson’s business and

explaining that the two plaintiffs in the case at bar were

terminated from their employment at Henderson while another five

employees left for reasons other than being terminated. See id. at

39.
Court No. 01-00883 Page 10

Subsequently, on February 6, 2002, Labor issued its “Notice of

Negative Redetermination on Remand” affirming Labor’s initial

notice of negative determination, see Negative Determination I, 66

Fed. Reg. at 47,241, and stating:

The results of the investigation on remand revealed
that during the relevant period, [Henderson] laid off a
total of two administrative workers. Another five
workers left on their own accord, due to various personal
reasons. None of these workers were engaged in the
manufacture of any product while employed at the subject
facility.

Further, the overwhelming portion of the activities
performed at the subject facility relates to the sales of
industrial sewing machines and related parts. The
company also produces components that attach to the
sewing machine (value added) before they are sold. The
company indicated that this is a negligible portion of
the total functions performed at the subject facility.

Admin. R. at 41. Labor published its notice of negative

determination on remand on April 17, 2002. See Negative

Determination II, 67 Fed. Reg. at 18,927-28.

On March 7, 2002, plaintiffs filed a notice expressing

dissatisfaction with the negative remand results. Moreover, on May

30, 2002, this Court granted “Plaintiffs’ Unopposed Motion to Amend

the Administrative Record” and ordered that Labor file an amended

record and index to include any and all records pertaining to

Investigation Nos. TA-W-34,672 (Andalusia), TA-W-34,672A (Multrie),

and TA-W-34,314B (Maryville) involving workers at Henderson (that

is, records pertaining to Henderson’s previous petition to Labor of
Court No. 01-00883 Page 11

May 26, 1998, for trade adjustment assistance). Labor submitted

the Amended Administrative Record (“Am. Admin. R.”) to this Court

on June 13, 2002.

Plaintiffs’ motion for judgment upon the agency record

currently before the Court followed.

B. Contentions of the Parties

1. Plaintiffs’ Contentions

Plaintiffs contend that Labor’s initial negative determination

(Negative Determination I, 66 Fed. Reg. 47,240) and Labor’s

subsequent negative determination on remand (Negative Determination

II, 67 Fed. Reg. 18,927) denying plaintiffs’ certification of

eligibility for trade adjustment assistance are not supported by

substantial evidence and are not in accordance with law. See Pl.

Sharon Cobb’s Mot. J. Agency R. (“Pls.’ Mot.”) at 5-22; see also

Pl.’s Resp. Def.’s Opp’n Pl.’s Mot. J. Agency R. (“Pls.’ Resp.”) at

1-15. In particular, plaintiffs argue that plaintiffs meet the

eligibility requirements of 19 U.S.C. § 2272 for trade adjustment

assistance because: (1) Henderson produces an article, see Pls.’

Mot. at 7-11; (2) plaintiffs’ positions at Henderson were directly

related to the production of an article, see id. at 11-14; (3) a

significant number of Henderson employees became separated, see id.
Court No. 01-00883 Page 12

at 14-16;6 and (4) “Henderson’s . . . sales declined and imports

directly competitive with Henderson’s . . . articles contributed

importantly to such decline.” Id. at 16.

First, with respect to plaintiffs’ argument that Henderson

produces an article within the meaning of 19 U.S.C. § 2272,

plaintiffs argue that “the record does not support Labor’s

conclusion that Henderson does not produce an article.” Pls.’

Resp. at 2. Plaintiffs point out that: (1) Henderson’s vice

president indicated on a questionnaire that Henderson manufactures

sewing machine parts, see Pls.’ Mot. at 7 (citing Admin. R. at 3

and Admin. R. at 39 (confidential version)); (2) “Labor’s own

petition screening and verification form indicates that

Henderson[’s] . . . products are sewing machine parts[,]” Pls.’

Mot. at 7 (citing Admin. R. at 6); (3) Labor’s August 29, 2001,

negative determination states that “‘[t]he affected workers . . .

provided . . . accounting services at a company where industrial

sewing machines are produced[,]’” Pls.’ Mot. at 7 (quoting Admin.

R. at 20) (emphasis omitted); (4) “[t]he absence of a response on

one part of Labor’s form [that is, the “Business Confidential Data

Request” form completed by Henderson’s vice president] is not

evidence that Henderson does not produce an article[,]” Pls.’

6
The Court will not address plaintiffs’ contention that a
significant number of Henderson’s employees became separated
because it is not at issue. See Pls.’ Mot. at 14 n.2.
Court No. 01-00883 Page 13

Resp. at 2; (5) “Henderson . . . is the same company performing the

same functions today as it did in 1998 when other former employees,

including service workers, were certified for trade adjustment

assistance under the Trade Act[,]” Pls.’ Mot. at 9 (citing Am.

Admin. R. at 1, 13-15 and Am. Admin. R. at 11 (confidential

version)), see also Pls.’ Mot. at 10; and (6) “Labor’s reliance on

Ms. Cobb’s inaccurate statement [that is, Cobb’s statement that

Henderson does not produce products] in the complaint is

misplaced” because in Cobb’s “Amended Affidavit in Support of

Motion to Proceed in Forma Pauperis”, “Ms. Cobb stated that

‘Henderson R&D Dept. produces parts for commercial sew[ing]

machines.’” Pls.’ Resp. at 8. Plaintiffs further argue that

Labor’s reliance on information provided by various customers of

Henderson on whether Henderson produced an article is misplaced.7

7
In plaintiffs’ response brief, plaintiffs argue that Labor
mistakenly relied on information provided by various customers of
Henderson “for support of . . . [Labor’s] finding that Henderson
does not produce an article.” Pls.’ Resp. at 3. In particular,
plaintiffs contend that: (1) “Henderson itself, the best source for
such information, has indicated that it does in fact produce
articles[,]” id. at 3-4; (2) “[a] customer’s incorrect
understanding or belief is not a valid basis upon which Labor
should be permitted to reach such an important conclusion[,]”
id. at 4; (3) “there is evidence in the record that Labor may have
incorrectly informed certain customers that Henderson did not
produce an article . . . [because] Labor’s statements may have
tainted the customers’ responses or caused them to return survey
forms without completing them[,]” id. at 4-5 (citing Admin. R. at
34) (confidential version); and (4) the various customers “have no
first-hand knowledge concerning Henderson’s internal operations.”
Pl.’s Resp. at 5.
(continued...)
Court No. 01-00883 Page 14

See Pls.’ Mot. at 8-9 (citing Admin. R. at 33-36 (confidential

version)); see also Pls.’ Resp. at 3-6. Moreover, plaintiffs

maintain that “the record does not support a finding that

[Henderson] indicated its production of components is negligible.”

Pls.’ Mot. at 7. In particular, plaintiffs argue that “there is no

substantial evidence upon which Labor could base its conclusion

that the ‘company indicated’ that its manufacturing activities were

negligible.”8 Id. at 8 (quoting Admin. R. at 41).

7
(...continued)
The Court finds that Labor’s reliance on the information
provided by various customers is not misplaced and that Labor acted
properly within the scope of its discretion. See Former Employees
of CSX Oil and Gas Corp., 13 CIT at 651, 720 F. Supp. at 1008
(quoting Cherlin v. Donovan, 7 CIT 158, 162, 585 F. Supp. 644, 647
(1984)) (“It is well established that while Labor has a duty to
investigate, ‘the nature and extent of the investigation are
matters resting properly within the sound discretion of the
administrative officials’”); Former Employees of Galey & Lord
Indus., 26 CIT at __, 219 F. Supp. 2d at 1286 (quoting Former
Employees of Barry Callebaut, 25 CIT at __, 177 F. Supp. 2d at 1308
(citations omitted)) (“‘Good cause [to remand] exists if [Labor’s]
chosen methodology is so marred that [Labor’s] finding is arbitrary
or of such a nature that it could not be based on substantial
evidence’”).
8
Plaintiffs point to a handwritten notation in the margin of
a letter provided by Henderson’s vice president and argue that
“[t]here is no evidence on the record that Henderson actually
provided such information to Labor.” Pls.’ Resp. at 6 (citing
Admin. R. at 39 (confidential version)). Labor responds that
“[Labor] share[s] plaintiffs’ view that this handwritten note was
made by a Labor employee . . . who likely contacted Mr. Henderson
[that is, Henderson’s vice president] for clarification and made
the notation to memorialize Mr. Henderson’s comment.” Def.’s Resp.
Opp’n at 24. Relying on United States Steel Workers of Am., Local
1082 v. McLaughlin, 15 CIT 121, 123 (1991) for the proposition that
“reliance upon unverified statements of company officials
(continued...)
Court No. 01-00883 Page 15

Second, with respect to plaintiffs’ argument that “[t]he

separated workers’ positions were directly related to the

production of an article[,]” Pls.’ Mot. at 11, plaintiffs contend

that: (1) “Cobb’s position had the same relation to production as

the service workers that were certified in [Labor’s] 1998

investigation[,]”9 id. at 12; and (2) “Cobb was a service worker to

Henderson[’s] . . . production division.”10 Id. at 13.

8
(...continued)
constitutes substantial evidence in the absence of contradictory
information[,]” Labor further asserts that “[i]n light of . . .
consistent information from various relevant sources, plaintiffs
have not demonstrated that Labor’s understanding of Henderson’s
production situation resulted from anything but reasoned analysis
of findings supported by substantial evidence.” Def.’s Resp. Opp’n
at 24-25.
9
Plaintiffs assert that “the record is clear that one
employee from the Andalusia, Alabama, facility at issue in the 1998
investigation, and ultimately deemed part of the certified group of
separated workers, was a customer service representative.” Pls.’
Mot. at 12 (citing Am. Admin. R. at 1). “Moreover, [in the 1998
investigation], separated workers from the sales divisions located
in Moultrie, Georgia, and Maryville, Tennessee, . . . were part of
the group of certified workers.” Pls.’ Mot. at 12 (citing Am.
Admin. R. at 10-12 (confidential version) and Am. Admin. R. at 13-
15); see also Pls.’ Mot. at 12 (citing Abbott v. Donovan, 6 CIT 92,
100-01, 570 F. Supp. 41, 49 (1983)).
10
In their brief, plaintiffs provide a narration of Cobb’s
job activities. See Pls.’ Mot. at 13. The Court agrees with Labor
that “plaintiffs’ moving brief contains information that is not
part of the administrative record . . . [and] [t]he Court should
not consider it.” Def.’s Resp. Opp’n at 21; see Former Employees
of Marathon Ashland, 26 CIT at __, 215 F. Supp. 2d at 1350 (quoting
Former Employees of General Electric Corp., 14 CIT at 610-11
(citations omitted)) (“in evaluating the evidence underlying
[Labor’s] conclusions, the [C]ourt may consider only the
administrative record before it”).
Court No. 01-00883 Page 16

Finally, with respect to plaintiffs’ argument that

“Henderson’s . . . sales declined and imports directly competitive

with Henderson’s . . . articles contributed importantly to such

decline[,]” Pls.’ Mot. at 16, plaintiffs assert that Labor

“misconstrues the record when claiming that responses to [Labor’s]

survey[s] ‘uniformly revealed that none of Henderson’s customers

increased imports while decreasing purchases from Henderson,’ and

that Henderson’s sales were not affected by imports.” Pls.’ Resp.

at 9 (confidential version) (quoting Def.’s Resp. Opp’n at 3 and

citing Def.’s Resp. Opp’n at 8, 9, 17). In particular, plaintiffs

point out that: (1) the same conditions that existed in the 1998

investigation of Henderson exist in the investigation at bar (that

is, just as in the 1998 investigation of Henderson, the current

investigation reveals that pursuant to 19 U.S.C. § 2272(a)(3),

“[t]he increase in imports . . . contribute[d] importantly to the

decline in sales or production and the separation of employees[,]”

Pls.’ Mot. at 16 (citing Am. Admin. R. at 7-8 (confidential

version) and Admin. R. at 11 (confidential version)); (2)

“[c]ommensurate with the decline in sales was the increase in

imports of sewing machines, parts and accessories competing with

Henderson[,]” Pls.’ Mot. at 16 (citing Admin. R. at 12

(confidential version)); (3) “Henderson . . . explained in its

Petitioner Questionnaire in the instant matter that it had already

been importing sewing machines and parts” from various countries,
Court No. 01-00883 Page 17

Pls.’ Mot. at 16 (citing Admin. R. at 3); (4) one of Henderson’s

customers “indicated that its purchases from Henderson . . .

declined from 1999 through 2001, while sewing machines and parts

purchased from other sources increasingly were manufactured in a

foreign country[,]” Pls.’ Mot. at 17 (citing Admin. R. at 14

(confidential version)); (5) “[a]nother customer . . . indicated

that its purchases of sewing machines and parts from domestic

sources declined[,]” Pls.’ Mot. at 17 (citing Admin. R. at 38

(confidential version)); (6) another customer of Henderson

“confirmed that purchases of domestic sewing machines and parts

steadily declined[,]” Pls.’ Mot. at 17 (citing Admin. R. at 16

(confidential version)); and (7) “[o]ther customers, whose

purchases declined, either closed and filed bankruptcy, moved to

foreign countries, or failed to respond to questionnaires due to

the mistaken belief that Henderson . . . did not manufacture

parts.” Pls.’ Mot. at 17 (citing Admin. R. at 12, 17, 34, 37

(confidential version)).

In the alternative, plaintiffs argue that if the Court does

not certify the plaintiffs for trade adjustment assistance, then

the Court should remand this case and “order [Labor] to undertake

a more thorough investigation” pursuant to 19 U.S.C. § 2395(b).

Pls.’ Mot. at 20. Plaintiffs maintain that: (1) the administrative

record at issue “lacks any meaningful discussion regarding the
Court No. 01-00883 Page 18

investigative measures undertaken by [Labor,]” id. at 21; and (2)

“[t]he information and documentation submitted by [Henderson’s vice

president] on behalf of Henderson . . . is incomplete and many

questions were answered inconclusively.” Id. (citing Admin. R. at

1, 3-5).

As a further alternative, plaintiffs assert that “[i]f this

Court disagrees that the existing record can establish that imports

increased and contributed to the decline in Henderson’s . . .

sales, it should find . . . that the record is not sufficient to

support [Labor’s] denial of eligibility[]” because “many customers

failed to respond to Labor’s questionnaires and other customers,

under the mistaken belief that Henderson . . . did not produce a

product, were instructed by Labor not to complete the forms.”

Pls.’ Mot. at 22.

2. Labor’s Contentions

Labor responds that its initial negative determination

(Negative Determination I, 66 Fed. Reg. 47,240) and Labor’s

subsequent negative determination on remand (Negative Determination

II, 67 Fed. Reg. 18,927) denying plaintiffs’ certification of

eligibility for trade adjustment assistance are supported by

substantial evidence and are in accordance with law. See Def.’s

Resp. Opp’n at 8-27. In particular, Labor argues that “Labor
Court No. 01-00883 Page 19

reasonably denied certification because none of the former

employees produced an article, qualified as a service support

employee, and the subject firm did not produce an article, let

alone one that was affected by increased imports.” Id. at 9.

First, with respect to Labor’s argument that plaintiffs did

not produce an article, Labor points out that: (1) the June 29,

2001, petition signed by Henderson’s vice president described

plaintiffs’ jobs at Henderson as “accounting,” see Def.’s Resp.

Opp’n at 14 (confidential version) (citing Admin. R. at 2); (2)

“[i]n a June 25, 2001 letter to Labor attached to the petition for

assistance,” Henderson’s vice president stated that “‘Cobb has

worked for [Henderson] for more than 10 years as accounts payable

clerk[,]’” Def.’s Resp. Opp’n at 14 (confidential version) (quoting

Admin. R. at 2); and (3) plaintiffs in their brief do not dispute

that plaintiffs provided accounting services. See Def.’s Resp.

Opp’n at 14 (citing Pls.’ Mot. at 3). Labor maintains that “[i]t

is well-established that the performance of services does not

constitute production of an article, as required by [19 U.S.C. §

2272(a)(3)].” Def.’s Resp. Opp’n at 14; see also Def.’s Rep. Opp’n

at 14-16 (citing Former Employees of Permian Corp. v. United

States, 13 CIT 673, 675, 718 F. Supp. 1549, 1551 (1989); Woodrum,

5 CIT 191, 564 F. Supp. 826; Nagy v. Donovan, 6 CIT 141, 571 F.

Supp. 1261 (1983); Pemberton v. Marshall, 639 F.2d 798 (D.C. Cir.
Court No. 01-00883 Page 20

1981); and Fortin v. Marshall, 608 F.2d 525, 526 (1st Cir. 1979)).

Labor, therefore, asserts that “Labor’s initial negative

determination [Negative Determination I, 66 Fed. Reg. 47,240] that

workers who provided accounting services ‘did not produce an

article within the meaning of [19 U.S.C. § 2272(a)(3)]’ is

supported by undisputed evidence and Labor’s negative eligibility

ruling is the result of a reasoned application of the statute and

relevant case law to the undisputed facts.” Def.’s Resp. Opp’n at

16 (quoting Negative Determination I, 66 Fed. Reg. at 47,241).

Second, Labor argues that plaintiffs do not qualify as

support service employees. See Def.’s Resp. Opp’n at 16-18.

Relying on Bennett v. Secretary of Labor, 20 CIT 788 (1996), Labor

maintains that: (1) “[b]ecause no production employee independently

qualified for certification, certification of support service

workers is precluded[,]”11 Def.’s Resp. Opp’n at 17; (2) “the record

indicates that the plaintiffs’ did not lose their jobs because

imports affected an article Henderson produced[,]” id.; (3)

Henderson’s vice president did not provide production data and

11
Contrary to Labor’s argument that certification of support
service workers is precluded because “no production employee
independently qualified for certification,” Def.’s Resp. Opp’n at
17, plaintiffs maintain that “neither [19 U.S.C. § 2272(a)] nor the
case law [Bennett, 20 CIT 788; Katunich v. Donovan, 8 CIT 156, 166-
67, 594 F. Supp. 744, 753 (1984); and Abbott, 6 CIT 92, 570 F.
Supp. 41] support [Labor’s] legal argument.” Pls.’ Resp. at 10;
see also Pls.’ Resp. at 10-15.
Court No. 01-00883 Page 21

“none of Henderson’s customers increased imports while decreasing

purchases from Henderson[,]” Def.’s Resp. Opp’n at 17 (confidential

version) (citing Admin. R. at 14-17 (confidential version)); and

(4) Labor’s remand investigation revealed that

during the relevant period, [Henderson] laid off a total
of two administrative workers. Another five workers left
on their own accord, due to various personal reasons.
None of these workers were . . . engaged in the
manufacture of any produc[t] while employed at
[Henderson].

Def.’s Resp. Opp’n at 17-18 (confidential version) (citing Admin.

R. at 41); see also Def.’s Resp. Opp’n at 18 (citing Admin. R. at

39 (confidential version) and Admin. R. at 1)).

Finally, Labor asserts that an additional basis that precludes

the certification of the plaintiffs is Labor’s finding that

‘the overwhelming portion of the activities performed at
[Henderson] relates to the sales of industrial sewing
machines and related parts. The company also produces
components that attach to the sewing machine (value
added) before they are sold. The company indicated that
this is a negligible portion of the total functions
performed at the facility.’12

Def.’s Resp. Opp’n at 18 (confidential version) (quoting Admin. R.

at 41). Labor maintains that: (1) Henderson’s vice president

submitted a petition that was resubmitted unchanged during remand

indicating a response of “‘textile industry’” to a question asking

12
Plaintiffs argue that “the issue is not whether production
is negligible, but whether production has become affected by
imports.” Pls.’ Mot. at 10; see also Pls.’ Mot at 10-11 and Pls.’
Resp. at 7-8.
Court No. 01-00883 Page 22

for “‘a description of the articles (products) produced by

[Henderson],’” and to “‘include such information as the common and

technical names of the articles [as well as] the method of

manufacture[,]’” Def.’s Resp. at 19 (quoting Admin. R. at 1); (2)

Henderson’s vice president responded to Labor’s “Business

Confidential Data Request” form by providing sales and employment

data, but no production data, see Def.’s Resp. at 19 (citing Admin.

R. at 11 (confidential version), see also Admin. R. at 29

(confidential version); (3) during the remand investigation,

various customers of Henderson responded that Henderson was

involved in sales and distribution of sewing machines and parts,

see Def.’s Resp. Opp’n at 19, see Admin. R. at 33, 34, 36

(confidential version); (4) “Henderson itself corroborated the

evidence demonstrating [that it was involved in sales and

distribution of sewing machines and parts] rather than

production[,]” Def.’s Resp. Opp’n at 20 (citing Admin. R. at 39

(confidential version)); (5) Cobb’s October 15, 2001, letter filed

with enclosures, deemed a summons and complaint, states that

“‘Henderson . . . does not produce products, [but] . . . res[ells]

commercial sewing machines and parts to sewing factories[,]’” id.

at 20-21; and (6) the attachment to Cobb’s October 15, 2001, letter

states that “‘Henderson . . . res[ells] . . . commercial sewing

machines and parts.’” Id.
Court No. 01-00883 Page 23

Alternatively, Labor argues that “plaintiffs have not

demonstrated that Labor’s determinations [Negative Determination I,

66 Fed. Reg. 47,240 and Labor’s subsequent negative determination

on remand, Negative Determination II, 67 Fed. Reg. at 18,927] are

unsupported by substantial evidence contained in the administrative

record, thus remand for further investigation is inappropriate, and

Labor’s decisions should not be disturbed.” Def.’s Resp. Opp’n at

21; see also Def.’s Resp. Opp’n at 21-27 (confidential version).

In particular, Labor points out that plaintiffs fail to cite to the

record for support of their argument that “‘Henderson . . . is the

same company performing the same functions today as it did in 1998

when other former employees, including service workers, were

certified for trade adjustment assistance.’” Def.’s Resp. Opp’n at

22 (quoting Pls.’ Mot. at 9). Moreover, Labor argues that

plaintiffs’ assertion that Henderson is the same company as it was

during the 1998 investigation is fundamentally flawed because: (1)

in 1998, Henderson’s vice president provided Labor with certain

production numbers whereas in the investigation at issue,

Henderson’s vice president did not provide production numbers[,]

see Def.’s Resp. Opp’n at 23 (comparing Am. Admin. R. at 7 with

Admin. R. at 11 (confidential versions)); and (2) “[i]n 1998, Labor

determined that Henderson in fact had employees engaged in

production that independently met the statutory criteria for

certification,” Def.’s Resp. Opp’n at 23 (citing Am. Admin. R. at
Court No. 01-00883 Page 24

11 (confidential version)) whereas in the investigation at bar,

“Labor properly determined that none of the employees that left

Henderson during the period investigated was involved in

production.” Def.’s Resp. Opp’n at 23 (citing Admin. R. at 39

(confidential version)). Additionally, contrary to plaintiffs’

argument that “‘a decline in sales and production contributed

importantly to [plaintiffs’] separation[,]’” Def.’s Resp. Opp’n at

26 (confidential version) (quoting Pls.’ Mot. at 11), Labor

maintains that “[t]his representation is arguably accurate to the

extent that sales may have led to plaintiffs’ separation” but it is

incorrect as to production leading to plaintiffs’ separation.

Def.’s Resp. Opp’n at 26 (citing Admin. R. at 39 (confidential

version)). Labor, therefore, contends that the Court should deny

plaintiffs’ motion and sustain Labor’s negative determinations.

C. Analysis

The Trade Adjustment Assistance program under Section 221(a)

of the Trade Act of 1974, as amended, (that is, 19 U.S.C. §

2271(a)) was designed to provide temporary financial assistance for

workers who have been partially or totally displaced as a result of

increased imports. See Former Employees of Rohm and Haas Co. v.

Chao, 2003 Ct. Intl. Trade LEXIS 7, *2, Slip. Op. 03-7 (Jan. 23,

2003) (citing Former Employees of Hawkins Oil & Gas, Inc. v. U.S.

Sec’y of Labor, 15 CIT 653, 654 (1991)). Pursuant to 19 U.S.C. §
Court No. 01-00883 Page 25

2272(a):13

[Labor] shall certify a group of workers . . . as
eligible to apply for adjustment assistance under this
subpart if [Labor] determines--

(1) that a significant number or proportion of
the workers in such 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) 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.

“Thus, it follows that [19 U.S.C. § 2272(a)(3)’s] certification

requirements are satisfied if it is established that a group of

workers produce[] an “article” within the meaning of the statute,

and an imported article like or directly competitive with the

article produced by the workers’ firm or subdivision contributes

importantly to the loss of such workers’ jobs.” Former Employees

of Marathon Ashland, 26 CIT at __, 215 F. Supp. 2d at 1351. Section

2272(b)(1) of Title 19 defines “contributed importantly” to mean “a

13
Congress recently amended the Trade Act of 1974. See Trade
Adjustment Assistance Reform Act of 2002, Pub. L. No. 107-210, 116
Stat. 933 (Aug. 6, 2002). However, in the case at bar, plaintiffs’
petition for trade adjustment assistance predates “November 4,
2002, the effective date of [the Trade Adjustment Assistance Reform
Act of 2002].” Former Employees of Rohm and Haas Co., 2003 Ct.
Intl. Trade LEXIS at *2-3 n.1 (citing Pub. L. No. 107-210 § 151,
116 Stat. at 953-54).
Court No. 01-00883 Page 26

cause which is important but not necessarily more important than

any other cause.”14 19 U.S.C. § 2272(b)(1); see also Former

Employees of Rohm and Haas Co., 2003 Ct. Intl. Trade LEXIS 7, at *3

(quoting Former Employees of Hewlett-Packard Co. v. United States,

17 CIT 980, 985 (1993) (“[t]here must be an ‘important causal

nexus’ between increased imports and the decline in sales or

production”).

The Court finds that Labor’s Negative Determination I, 66 Fed.

Reg. 47,240, and Labor’s subsequent Negative Determination II, 67

Fed. Reg. 18,927, denying plaintiffs’ certification of eligibility

for trade adjustment assistance on the basis that the plaintiffs

did not produce an article, plaintiffs did not qualify as support

service workers and Henderson did not produce an article affected

by increased imports that contributed importantly to plaintiffs’

separation from Henderson are supported by substantial evidence and

are in accordance with law.

14
“According to the Senate Report to the Trade Reform Act of
1974, while a ‘cause may have contributed importantly even though
it contributed less than another single cause[, it still] must be
significantly more than de minimis to have contributed
importantly[.]’” Former Employees of Kleinerts, Inc. v. Herman, 23
CIT 647, 651, 74 F. Supp. 2d 1280, 1285 (1999) (quoting S. Rep. No.
93-1298, 93rd Cong., 2nd Sess. at 133 (1974)).
Court No. 01-00883 Page 27

1. Plaintiffs Did Not Produce an Article

First, with respect to Labor’s determination that plaintiffs

did not produce an article within the meaning of 19 U.S.C. §

2272(a)(3), the record evidence indicates that Henderson’s vice

president signed a petition for TAA on behalf of plaintiffs on June

29, 2001, describing plaintiffs’ jobs at Henderson as “accounting.”

See Admin. R. at 1. A June 25, 2001, letter from Henderson’s vice

president to Labor that was attached to the petition stated that

“Cobb . . . worked for [Henderson] for more than 10 years, as

accounts payable clerk.” Id. at 2. Moreover, a letter submitted

by Henderson’s vice president to Labor during the remand

investigation stated that plaintiffs’ did not produce a product.

See Admin. R. at 39 (confidential version). Additionally, Cobb’s

letter with enclosures deemed a summons and complaint by this Court

states in pertinent part that “[Cobb] started part time in 1980

working as [an] account receivable clerk [at Henderson], and within

two-three years was asked to go full time . . . [and] was then

changed to [an] account payable clerk[.]” Since plaintiffs fail to

point to any record evidence that contradicts Labor’s finding that

plaintiffs did not produce an article, the Court finds that Labor’s

determination that plaintiffs did not produce an article within the

meaning of 19 U.S.C. § 2272(a)(3) is supported by substantial
Court No. 01-00883 Page 28

evidence.15 See Former Employees of Pittsburgh Logistics Systems,

Inc. v. U.S. Sec’y of Labor, 2003 Ct. Intl. Trade LEXIS 18, *18,

Slip. Op. 03-21 (Feb. 28, 2003) (citing Woodrum, 5 CIT at 198, 564

F. Supp. at 831; Nagy, 6 CIT at 145, 571 F. Supp. at 1264; and

Pemberton, 639 F.2d 798)) (“TAA was intended to benefit those who

ha[ve] been engaged in the production of an import-impacted

article, and courts have noted the common meaning of ‘production,’

i.e., to ‘give birth, create or bring into existence’”).

15
The Court is not persuaded by plaintiffs’ argument that
“Henderson . . . is the same company engaged in the same activities
as it was in 1998 [and, therefore,] Cobb’s position in the
accounting department ha[s] the same nexus to production activities
as the sales employees’ positions [and customer service
representative’s position] in the 1998 investigation.” Pls.’ Mot.
at 12. First, plaintiffs fail to point to record evidence in
support of this argument. Second, in the 1998 investigation,
Henderson’s vice president responded to Labor’s “Business
Confidential Data Request” form by stating that Henderson produced
a certain article (product) and provided Labor with production
numbers for that article whereas in the investigation at issue,
Henderson’s vice president responded to Labor’s “Business
Confidential Data Request” form on two occasions (during the
initial investigation and during the voluntary remand
investigation) stating in both instances that Henderson produced a
certain article and failing to provide any production numbers for
that alleged article. Compare Am. Admin. R. at 1, 6-8 (1998
investigation) (confidential version) with Admin. R. at 1, 11-13,
29-32 (investigation at bar) (confidential version) (emphasis
supplied). Finally, in the 1998 investigation, Labor determined
that “Henderson in fact had employees engaged in production that
independently met the statutory criteria for certification,” Def.’s
Resp. Opp’n at 23 (citing Am. Admin. R. at 11 (confidential
version)) whereas in the investigation at bar, “Labor . . .
determined that none of the employees that left Henderson during
the period investigated was involved in production[.]” Def.’s
Resp. Opp’n at 23 (citing Admin. R. at 39 (confidential version)
(emphasis supplied)).
Court No. 01-00883 Page 29

2. Plaintiffs Did Not Qualify as
Support Service Workers

Plaintiffs who do not produce an article (product) are

eligible for TAA certification as “support service workers” if:

(1) their separation was caused importantly by a reduced
demand for their services from a parent firm, a firm
otherwise related to the subject firm by ownership, or a
firm related by control;

(2) the reduction in the demand for their services
originated at a production facility whose workers
independently met the statutory criteria for
certification; and

(3) the reduction directly related to the product
impacted by imports.

Former Employees of Chevron Prods. Co. v. United States Sec’y of

Labor, 2002 Ct. Intl. Trade LEXIS 129, *37, Slip. Op. 02-131 (Oct.

28, 2002) (citing Bennett, 20 CIT at 792; Abbott, 6 CIT at 100-01,

570 F. Supp. at 49).16

16
The Court disagrees with plaintiffs’ argument that “neither
[19 U.S.C. § 2272(a)] nor case law supports [Labor’s] legal
argument,” Pls.’ Resp. at 10, that certification of plaintiffs as
support service workers is precluded because “no production
employee independently qualified for certification[.]” Def.’s Resp.
Opp’n at 17; see Abbott, 6 CIT at 100-01, 570 F. Supp. at 49
(citing Woodrum, 5 CIT 191, 564 F. Supp. 826) (“the Court must
accord substantial deference to the interpretation of the statute
[19 U.S.C. § 2272(a)] by the agency [Labor] charged with its
administration”); Bennett, 20 CIT at 792 (stating in pertinent
part that “plaintiff[s] are eligible for certification [as support
service workers] when . . . their separation is caused by a reduced
demand for their services from a production department whose
workers independently meet the statutory criteria for
certification” and holding that “Labor permissibly and reasonably
interpreted [19 U.S.C. § 2272(a)] in formulating the test for
certifying support service workers”).
Court No. 01-00883 Page 30

In the case at bar, Labor determined in its initial

investigation that “[n]one of [Henderson’s] customers increased

import purchases of parts for sewing machines, while decreasing

purchases [from] [Henderson].” Admin. R. at 19. Labor further

reasoned that:

Workers of [Henderson] may be certified only if
their separation was caused importantly by a reduced
demand for their services from a parent firm, a firm
otherwise related to the subject firm by ownership, or a
firm related by control. Additionally, the reduction in
demand for services must originate at a production
facility whose workers independently meet the statutory
criteria for certification and the reduction must
directly relate to the product impacted by imports.
These conditions have not been met for workers performing
services at [Henderson].

Id. at 21. Additionally, subsequent to the remand investigation,

Labor issued its “Notice of Negative Redetermination on Remand”

affirming Labor’s initial notice of negative determination,

see Negative Determination I, 66 Fed. Reg. at 47,241, and stated:

The results of the investigation on remand revealed
that during the relevant period, [Henderson] laid off a
total of two administrative workers. Another five
workers left on their own accord, due to various personal
reasons. None of these workers were engaged in the
manufacture of any product while employed at the subject
facility.

Id. at 41.

The Court finds that Labor’s determinations are supported by

substantial record evidence and are in accordance with law. In

particular, the record reveals that: (1) Henderson’s vice president
Court No. 01-00883 Page 31

responded to Labor’s “Business Confidential Data Request” form on

two occasions (that is, during the initial investigation and the

remand investigation) and in both instances stated that Henderson

produced a certain article but provided no production data, Admin.

R. at 11-13, 29-32 (confidential version) (emphasis supplied); (2)

one of Henderson’s customers that was surveyed by Labor during the

initial investigation provided that for the period of January to

June 2001, there was an increase in the value of purchases of

sewing machines from Henderson and a decrease in value of sewing

machines from other domestic sources (the sewing machines purchased

from the other domestic sources were manufactured mostly in a

foreign country), see Admin. R. at 14 (confidential version)

(emphasis supplied); (3) another customer of Henderson surveyed by

Labor during the initial investigation only supplied data depicting

a decrease in the value of purchases of sewing machine parts from

other domestic sources but did not supply any data with regards to

Henderson nor foreign sources, see id. at 16 (confidential

version); (4) another customer of Henderson surveyed by Labor

during the initial investigation and later in the remand

investigation did not supply any data and stated that the company

had closed, see id. at 17, 37 (confidential version); (5) during

the remand investigation Labor contacted the various customers of

Henderson who responded that Henderson was involved in sales and

distribution of sewing machines and parts, see Admin. R. at 33, 34,
Court No. 01-00883 Page 32

36 (confidential version); (6) another customer of Henderson

surveyed by Labor during the remand investigation only supplied

data depicting a decrease in the quantity and value of purchases of

sewing machines from other domestic sources (the sewing machines

purchased from the other domestic sources during the period of 1999

through 2001 were increasingly being manufactured mostly in a

foreign country) but did not supply any data with regards to

Henderson nor foreign sources, see Admin. R. at 38 (confidential

version); and (7) during the remand investigation, Henderson’s

vice president responded to Labor in a letter explaining in

pertinent part that the two plaintiffs in the case at bar were

terminated from their employment at Henderson while another five

employees left for reasons other than being terminated. See Admin.

R. at 39 (confidential version).

Based on the record evidence, the Court finds that Labor

could reasonably conclude as it did in the instant case that

plaintiffs did not qualify as support service workers because inter

alia: (1) “no production employee independently qualified for

certification[,]” Def.’s Resp. Opp’n at 17, and (2) “the record

indicates that the plaintiffs’ did not lose their jobs because

imports affected an article Henderson produced.”17 Id.

17
The Court notes that plaintiffs fail to point to record
evidence to support a contrary result (that is, that plaintiffs
(continued...)
Court No. 01-00883 Page 33

3. Henderson Did Not Produce an Article Affected by
Increased Imports That Contributed Importantly to
Plaintiffs’ Separation from Henderson

Finally, the Court also finds Labor’s determination that

Henderson did not produce an article affected by increased imports

that contributed importantly to plaintiffs’ separation from

Henderson as supported by substantial evidence. The record

evidence provides that: (1) Henderson’s vice president signed a

petition for TAA on behalf of the plaintiffs on June 29, 2001,

indicating a response of “textile industry” to a question asking

for “a description of the articles (products) produced by

[Henderson],” and to “include such information as the common and

technical names of the articles [as well as] the method of

manufacture[,]” Admin. R. at 1; (2) Henderson’s vice president

responded to Labor’s “Business Confidential Data Request” form on

two occasions (that is, during the initial investigation and the

remand investigation) and in both instances stated that Henderson

produced a certain article but provided no production data, Admin.

R. at 11-13, 29-32 (confidential version) (emphasis supplied); (3)

one of Henderson’s customers that was surveyed by Labor during the

initial investigation provided that for the period of January to

June 2001, there was an increase in the value of purchases of

sewing machines from Henderson and a decrease in value of sewing

17
(...continued)
qualify as support service workers).
Court No. 01-00883 Page 34

machines from other domestic sources (the sewing machines purchased

from the other domestic sources were manufactured mostly in a

foreign country), see Admin. R. at 14 (confidential version)

(emphasis supplied); (4) another customer of Henderson surveyed by

Labor during the initial investigation only supplied data depicting

a decrease in the value of purchases of sewing machine parts from

other domestic sources but did not supply any data with regards to

Henderson nor foreign sources, see Admin. R. at 16 (confidential

version); (5) another customer of Henderson surveyed by Labor

during the initial investigation and later in the remand

investigation did not supply any data and stated that the company

had closed, see Admin. R. at 17, 37 (confidential version); (6)

another customer of Henderson surveyed by Labor during the remand

investigation only supplied data depicting a decrease in the

quantity and value of purchases of sewing machines from other

domestic sources (the sewing machines purchased from the other

domestic sources during the period of 1999 through 2001 were

increasingly being manufactured mostly in a foreign country) but

did not supply any data with regards to Henderson nor foreign

sources, see Admin. R. at 38 (confidential version); (7) during the

remand investigation Labor contacted the various customers of

Henderson who responded that Henderson was involved in sales and

distribution of sewing machines and parts, see Admin. R. at 33, 34,

36 (confidential version); and (8) during the remand investigation
Court No. 01-00883 Page 35

Henderson’s vice president responded in a letter describing

Henderson’s business as mostly involving sales and distribution of

sewing machines and parts rather than production. See Admin. R. at

39 (confidential version). Additionally, Cobb’s letter with

enclosures deemed a summons and complaint by this Court states in

pertinent part that Henderson “does not produce products, [but] .

. . res[ells] commercial sewing machines and parts to sewing

factories.”18

18
Plaintiffs raise a number of arguments and assert that the
record does not support Labor’s conclusions that Henderson does not
produce an article, let alone one that was affected by increased
imports. The Court disagrees with plaintiffs and addresses
plaintiffs’ arguments as follows.

First, plaintiffs raise two arguments with regards to a
handwritten notation that appears in the margin of the letter
provided by Henderson’s vice president during the remand
investigation. See Admin. R. at 39 (confidential version). In
particular, plaintiffs contend that “[t]here is no evidence in the
record that Henderson actually provided such information to
Labor[,]” Pls.’ Resp. at 6 (citing Admin. R. at 39 (confidential
version)), and that “the issue is not whether production is
negligible, but whether production has become affected by imports.”
Pls.’ Mot. at 10; see also Pls.’ Mot at 10-11 and Pls.’ Resp. at 7-
8.

The Court disagrees with plaintiffs’ arguments with regards to
the handwritten notation that appears in the margin of the letter
provided by Henderson’s vice president because as Labor correctly
points out, “reliance upon unverified statements of company
officials constitutes substantial evidence in the absence of
contradictory information[.]” Def.’s Resp. Opp’n at 24-25 (citing
United States Steel Workers of Am., Local 1082, 15 CIT at 123; see
also supra Discussion Part I, C (Analysis) n.14 (quoting Former
Employees of Kleinerts, Inc., 23 CIT at 651, 74 F. Supp. 2d at 1285
(quoting in turn S. Rep. No. 93-1298, 93rd Cong., 2nd Sess. at 133
(“[a]ccording to the Senate Report to the Trade Reform Act of 1974,
(continued...)
Court No. 01-00883 Page 36

Accordingly, the Court finds that Labor properly issued its

“Notice of Negative Redetermination on Remand” affirming Labor’s

initial notice of negative determination and stating in pertinent

part:

[T]he overwhelming portion of the activities performed at
[Henderson] relates to the sales of industrial sewing
machines and related parts. The company also produces
components that attach to the sewing machine (value
added) before they are sold. The company indicated that
this is a negligible portion of the total functions
performed at the subject facility.

18
(...continued)
while a ‘cause may have contributed importantly even though it
contributed less than another single cause[, it still] must be
significantly more than de minimis to have contributed
importantly’”)). Reviewing the record evidence as a whole, the
Court finds that the plaintiffs have not demonstrated that Labor’s
finding regarding Henderson’s production situation resulted from
anything other than a reasonable conclusion supported by
substantial evidence. (Emphasis supplied).

Second, plaintiffs argue that Henderson’s “sales declined and
imports directly competitive with Henderson’s . . . articles
contributed importantly to such decline.” Pls.’ Mot. at 16.
Plaintiffs argue inter alia that the same conditions that existed
in the 1998 investigation of Henderson exist in the investigation
at bar (that is, just as in the 1998 investigation of Henderson,
the current investigation reveals that pursuant to 19 U.S.C. §
2272(a)(3), “[t]he increase in imports . . . contribute[d]
importantly to the decline in sales or production and the
separation of employees”). Id. at 16 (citing Am. Admin. R. at 7-8
(confidential version) and Admin. R. at 11 (confidential version).

As the Court previously pointed out, see supra Discussion Part
I, C1 (Analysis) n.15, the Court is not persuaded by plaintiffs’
argument that Henderson is the same company in the investigation at
bar as it was in the 1998 investigation. Additionally, plaintiffs
again fail to point to record evidence supporting their argument
that imports contributed importantly to plaintiffs’ separation from
Henderson.
Court No. 01-00883 Page 37

Admin. R. at 41; see Negative Determination II, 67 Fed. Reg.

at 18,928.

CONCLUSION

Based on a careful examination of the record as a whole, this

Court sustains Labor’s initial negative determination (Negative

Determination I, 66 Fed. Reg. 47,240) and Labor’s subsequent

negative determination on remand (Negative Determination II, 67

Fed. Reg. 18,927) denying plaintiffs’ certification of eligibility

for trade adjustment assistance as supported by substantial

evidence and in accordance with law. This case is dismissed.

______________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE

Dated: March 25, 2003
New York, New York