Slip Op. 03-49 UNITED STATES COURT OF INTERNATIONAL TRADE BEFORE: GREGO RY W. CARMAN, CH IEF JUDGE

____________________________________ : FORMER

EMPLOYEE S OF : TYCO ELECTRONICS, FIBER : OPTICS DIVISION, : : Plaintiffs, :

: v. : Court No. 02-00152 : UNITED STATES DEPARTMENT : OF LABOR, :

Defendant. :

: ____________________________________:
[Plaintiffs’ Motion for Judgment Upon the Agency Record is denied. The Department of L abor’s neg ative dete rmina tion i s rem ande d for

furt her i nves tiga tion. ] Dated: May 12, 2003 Williams Mullen, (

Jimmie V. Reyna , Francisco J. Orellana ), for Pla intiffs. Robert D. McCallum

, Jr. , Assistant Attorney Gene ral, David M. Cohen , Director, Lucius B. Lau , Assistant Director, John N. Maher , Attorne y, C ommercia

l Litig ation Br

anch, Civil Division, U.S. Department of Justice, Jay Reddy , Office of the Soli citor, U. S. Depar tment of Labor, Of

Counsel, for Def endant. O PINI ON C ARMAN , C HIEF J UDGE : This matter comes before the Court on Plaintiffs’ Motion for Judgment Upon the Agency Record pursuant to USCIT Rule 56.1. This Court has jurisdiction pursuant to 28 U.S.C. § 1581(d) (2000). Plaintiffs challenge the United States Depar tment of Labor’s (“Labor”) determination entitled Notice of Neg ative Determination On Reconsideration on Remand (“

Remand R esults ”). (Pub. Supplemen tal Admin. R. at 15-1 8); see also TycoCourt No. 02-00152 Page 2

Electronics, Fiber Optics Division; Glen Rock, PA; Notice of Negative Determination on Reconsideration on Remand, 68 Fed. Reg. 5,655 (Feb. 4, 2003). As set f orth below, this Court holds that the Remand R esults are not s upported by s ubstantia l evidenc e or othe

rwise in accordance with law. Theref ore, this matter is remanded to Labor for further investigation consistent with the specific instructions contained herein. S TAND ARD O F R EVIEW This Court will uphold Labor’s determination of eligibility for trade adjustment assistance “if it is supported by substantial evidence on the record and is otherwise in accorda nce with law.” Former Employees of Swiss Indus. Abrasives v. United States , 830 F. Supp. 637, 639 (Ct. Int’l Trade 1 993) (ci

tations omi

tted); see also 19 U.S.C. § 2395(b). Pursuant to 19 U.S.C. § 2395(b), The findings of fact by

the Secret ary

of Labor . . . , if supported by substantial evidence, shall be conclusive; but the court, for good cause shown, may

remand the caseto such Secretary

to take further evidence, and such Secretary may thereupon make new or modified findings of fact and may modify his previous

action, a nd shall certify to the court the record of the fu rther pr oceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence. 19 U.S.C. § 2395(b) (2000). “Substantial evidence is something more than a ‘mer e scintilla,’ and must be enough reasonably to support a conclusion.” Ceramica Regiomontana, S.A. v. United States , 636 F. Supp. 961, 966 (Ct. Int’l Trade 1986), aff’d , 810 F.2d 1137 (Fed. Cir. 1987); see also Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229 (1938). Further, La bor’s findings of fact must be supported by reasonable analy sis and not be arbitrary and capricious. Former Employees of Marathon Ashland v. Chao , 215 F. Supp. 2d 1345, 1350 (Ct. Int’l Trade 2002) (citation omitted). Althoug h “the na ture and extent of th e investig ation ar e matter s resting

properl y within the sound discretion of [Labor],” Former Employees of CSX Oil & Gas Corp. v. United States ,Court No. 02-00152 Page 3

1 Congress recently

repealed 19 U.S.C. § 2331, folding the NAFTA-TA A program into a new trade adjustment assistance scheme under the ne wly-revised ve

rsion of the Trade Act of 1974 renamed the Trade Act of 2002. See Pub. L. No. 107-210, § 123, 116 Stat. 933, 944 (2002). Because Former

Employees’ petition antec edes November 4, 2002, the effective da te of the revised statute, they

cannot benefit from the terms of the revised statute. See id . at § 151, 116 Stat. 953-954. 720 F. Supp . 1002 , 1008 (Ct. Int’l Tr ade 19 89) (q uoti ng Cherlin v. Donovan , 585 F. Supp. 644, 647 (Ct. I nt’l Tra de 1984) ), “go od cause

to remand exists if [L abor’s] c hosen met

hodolog y is so marred that [the] finding is arbitrary or of such a nature that it could not be based on substantial evidence.” Former Employees of Galey & Lord Indus. v. Chao , 219 F. Su pp. 2d 1283 , 1286 (Ct. Int’ l Trade 2 002) (ci

tations omi

tted). Un der § 239 5(c), th

is Court “s hall have

jurisdict ion to affirm the action of the Secretary of Labor . . . or to set such ac tion aside, in whole or in part.” 19 U.S.C. § 2395(c).

B ACKGROUND Plaintiffs, the former employe es of the Tyc o Electronics Plant, Fiber Optics Division located in Glen Roc

k, Pennsy lvania ( “Forme

r Employ ees”), sought c ertific ation for North American Free Trade

Transitional Adjustment Assistance (“NAFTA-TAA”) benefits on July 27, 2001. (Pub. Admin. R. at 2.) Former Employe es sought certification under 19 U.S.C. § 2331. 1 Section 23 31(a)( 1) provid es: A group o f worke

rs . . . sha ll be certified

as eligible to apply

for adjustment assistance under this subchapter . . . if [Labor] determines that a significant number or proportion of the workers in such worker s’ firm or an appropriate subdivision of the firm have become totally or partia lly separated, or are t

hreate ned to bec ome totall

y or partiall y separated, and either– (A) that

– (i) the s ales or productio n, or both, of such f irm or subd

ivision ha ve decr ease d absolutely, (ii) im po rt s f

ro m M ex ic o o r C an ad a o f a rt ic le s l ik e o r d ir ec tl y c ompetitiv e with articles produced by

such firm or subdivision have increased, andCourt No. 02-00152 Page 4 (iii ) the inc rease in imports under clause (ii) contributed importantly to such worker s’ separation or threat of separation and to the dec line in t he s ales or production of such firm or subdivision; or (B) that there has been a shift in production by such workers’ firm or

subdivisio n to Me xico or Canada of articles like or directly competitive with articles wh ich ar e produced by the

firm or subdivision. 19 U.S.C. § 2331(a)(1) (2000). Plaintiff s sought c ertific ation for

benefit s based on

their be lief that

their job l oss was a result of an incre ase in impo

rts from M exico and a

result of a shift in production of fibe r optic components to Mexico. (Pub. Admin. R. at 53.) According to the Former Employ ees, several other Tyco f

acilities in the Pennsylvania are a had closed and all recent petitions for NAFTATAA had been granted. ( Id . at 51.) The Pennsylvania Department of Labor

and Industry initiated a preliminary investig ation and denied the Former Employ ees’ petition based on insufficient import information regarding like produc ts and Tyco Electronic’s initial survey response. (Conf. Admin. R. at 12-14.) The United States Department of Labor initiated an investigation of the Former Employ ee’s NAFTA-TAA cer

tification eligibility petition on September 4, 2001. Investig ations Reg

arding Cer

tification s of Eligibil

ity to Appl

y for NAFTA Transitional Adjustment Assistance , 66 Fed. Reg. 48,708 (Sept. 21, 2001). In the initial investigation, L abor denied the Former Employ ees’ NAFTA-TAA petition on the grounds that imports from Mexico did not contribute importantly to the F ormer Employees’ sepa

ration and there was no shift in production to Mexico. Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment Assistance and NAFTA Transitional Adjustment Assistance , 66 Fed. Reg. 53,250, 53,252 (Oct. 19, 2001). The initial investigation consisted of one form letter data request sent to Ty co Electronics. (Conf. Admin. R. at 33-34.) In its written determination, L abor found that the predominant cause of the work sepa ration wasCourt No. 02-00152 Page 5

relat ed to a shift in pro ducti on to an affi liat ed Tyco El ectron ics fa cili ty in Harr isbu rg, Pennsylvania. (Pub. Admin. R. at 19.) On October 9, 2001, Former Employ ees filed a motion for administrative reconsideration of Labor’s neg ative NAFTA-TAA determination, contending that their job separation was caused by a shift in production to Mexcio. ( Id . at 54.) Based upon additional information provided during a conference c all with Tyco Electronic s company offic ials, Labor denied For mer Employees’ re quest for administrative reconsideration. Tyco Electronics Fiber Optics Division, Glen Rock, Pennsylvania; Notice of Negative Determination Regarding Application for Reconsideration , 67 Fed. Reg. 5,299 (Feb. 5, 2002). Labor stated that only “ a negligible portion of the plant production was shifted to Mexico during the relevant period.” ( Pub. Admin. R. at 69.) Appear ing pro se, For mer Em ployees ap pealed the ne gative determ inati on by fili ng a complaint in this Court on January 30, 2002. (Pls.’ Compl. at 1.) Plaintiffs’ counsel was appointed by the Court to repr esent the Former Employ ees pro bono. Pursuant to the Court’s scheduling order, Plaintiffs filed a Rule 56.1 Motion for Judgment Upon the Ag ency Rec ord on June 28, 2002. Immediately after the Former Employ ees filed their Rule 56.1 Motion, Defendants sought Plaintiffs’ consent to a voluntary remand. In seeking

a voluntary re

mand, Defend ant state d that “[a]f

ter review of the

administr

ative re cord in lig

ht of the a

rgumen ts petitione rs made in

their Rule

56.1 motion , defend

ant seek s a rema

nd to L abor to c onduct a further investigation and make a rede termination.” (Def.’s Unopposed Mot. for Voluntary Remand at 2.) On August 7, 2002, this Court issued an order that Defendant conduct a remand investigation and submit remand results by October 7, 2002. Former Em ployees of Tyco Ele

cs.Court No. 02-00152 Page 6

v. United States , No. 02-00152 (Ct. Int’l Trade Aug . 7, 2002) (order granting voluntar y remand) (“Remand Order”). The Remand Or der mandated that Labor

“conduct further investigation, . . . [and] collect further evidence, including evidence from the plaintiffs.” Id . at 1. L abor fa iled to timely comply

with the Court’s order and did not submit a remand determination to this Court on or before October 7, 2002. On October 17, 2002, Plaintiffs submitted information to Def endant’s counsel for use in the remand determination (“Octobe r 17 information”). (Pls.’ Br. at 5; Def.’s Br. at 9.) On November 12, 2002, Plaintiffs contacted De fendant to inquire about the status of the remand investigation. Former Employees of Tyco Elecs. v. United States , No. 02-00152, 2003 Ct. Intl. Trade L

EXIS 23, at *3 (Ct. I

nt’l Trade March 5, 2003) (order g ranting Defendant leave to file out of time and awarding Plaintiffs attorney ’s fees). At that time, Defendant’s counsel informed Plaintiffs’ counsel that the remand investigation had not starte d. Id . On November 14, 2002, Defendant filed its first motion for leave to file the re mand results out of time, requesting until January 6, 2003 to file the r esults. Id . On January 2, 2003, Defe ndant filed a second motion for leave to file the remand results out of time. Id . In its second motion, La bor requested until January 21, 2003 to file the r esults. Id . The Remand R esults were filed with the Court on January 17, 2003. Id . at *4. This Court accepted the Remand R esultsout of time and awarded Plaintiffs’ attorney ’s fees under USCIT Rule 16(f ). Id. at *19. In conducting the r

emand investigation, Labor c ontacted a Ty co Electronics company official and requested company -wide sales figures of the fiber optics c omponents produced at the Glen Rock plant and a list of the major declining customers of the subject plant. ( Pub. Supplemental Admin. R. at 2.) Tyco Electronics reported declining sales in its fiber optics division during the relevant time period. (Conf. Supplemental Admin. R. at 5.) Beca use of the reported declining sales, L abor surveyed the two reported major declining customers re gardingCourt No. 02-00152 Page 7

their purchases of fiber optics components during the relevant time period. (Pub. Supplemental Admin. R. a

t 17.) Ac cording

to La bor, the s urvey s revea led that o ne customer did not increa se its imports of like products or products competitive with the items produced at the Glen Rock plant. ( Id. at 18.) The other customer reported no direct import purchases during the relevant period and a “relatively

low” amount of indirect imports during the latter part of the re levant period. ( Id .) Based on these findings, L abor “affirm[ed] the original notice of neg ative determination of eligibility.” ( Id. ) Plaintiffs filed their second Rule 56.1 Motion for Judgment Upon the Agency R. on February 24, 2003. (Pls.’ Br. at i.) Plaintiffs ask this Court to certify the Former Employees for NAFTA-TAA eligibility

or, alternatively , order an additional remand “with specific instructions [to Labor] on how to conduct a fair and meaning ful investigation.” ( Id . at 28.) In Defenda

nt’s Response to Plaintiffs’ second Rule 56.1 Motion, Labor opposes cer tification of eligibility but concedes that a second remand is nece ssary bec ause the Remand R esults “are no t consiste nt with . . . the Court’s order.” (Def.’s Br. a t 9.)
P ARTIES ’ C ONTENTI ONS I. Plaintiffs’ Contentions Plaintiffs contend that the Remand R esultsare not supported by substantial evidence or otherwise in accordance with law for the following six reasons. First, Plaintiffs contend that the Remand R esults are inconsistent with instructions in this Court’s Remand Order. (Pls.’ Br. at 8- 10.) Second, Former Employ ees assert that the Remand R esultsinappropriately r ely on the underlying

investigation which Labor c onceded was inadequate. ( Id . at 10-11.) Third, Plaintiffs contend that the Remand R esults are not supported by substantial evidence given the fact that the remand investigation consisted of only two unverified customer survey s. ( Id . at 12-14.) Fourth,Court No. 02-00152 Page 8

Plaintiffs contend that the Remand R esultsfail to address the statutory criteria under 19 U.S.C. § 2331(a)(1)(B) because

Labor failed to investiga te whether there was a shift in production. ( Id . at 14-16.) Fifth, Former Employ ees contend that the Remand R esults are con trary to law bec ause Labor’s decision to rejec

t the October 17 information was arbitrary and capricious. (

Id . at 16- 18.) Sixth, Plaintiffs contend that the Remand R esultsshould be r ejecte d becau se La

bor faile d to verify infor

mation provided by Ty

co Electronics and its customers, failed to address releva nt import dat

a, faile d to examine

Tyc o’s corp orate or

ganizat ional stru cture, a nd faile d to condu

ct its investigation with the utmost regard for the interests of Plaintiffs. ( Id . at 18-26.) Plaintiffs assert that the p roper r

emedy is for the Court to or

der L abor to c ertify

the Former Employ

ees’ el igibility for NAFTA-TAA benefits. ( Id . at 26-28 .) Alter

natively , Plaintiff s ask this Co

urt to remand to Labor with specific instructions to conduct a me aningful and fair investigation. ( Id . at 28.) First, regarding the mer

its of the Remand R esults , Plaintiffs contend that the Remand Results are inconsistent with the instructions in this Court’s Remand Order. ( Id . at 8-10.) Plaintiffs note that this Court’s Remand Order specifically instructs Labor “to conduct furthe r investigation, [and] to collect further evidence, including evidenc e from the plaintiffs.” ( Id . at 8.) Plaintiffs contend that the Remand R esults are “devoid” of any information from Former Employees. (

Id . at 9.) Plaintiffs assert that although Defendant’s counse l informed Plaintiffs that it wou

ld be impro

per for Labor to consi der the O ctober 1 7 informa tion volunt

arily submitted by Plaintiffs, L abor did not attempt to obtain any other infor mation from the Plaintiffs as instructed to do so in the Remand Order. ( Id .) Second, Plaintiffs contend that the Remand R esults inappropriately r ely on the initial investigation which Defendant concede d was inadequate. ( Id . at 10-11 .) Plaintif

fs cite to Defendant’s Unopposed Motion for Voluntary Remand, in which Labor states that if the re mandCourt No. 02-00152 Page 9

investig ation re sults in a “ reaff irmation o f La

bor’s pr evious [ne gative ] determination,” L abor will support its conclusion with “a more detailed factual and/or leg al analysis.” ( Id . at 10 (citing Def.’s Unopposed Mot. for Vol. Remand at 2) (emphasis omitted).) Howe ver, Former Employees arg

ue that the Remand R esultslack such detailed analy sis and merely re iterate the concededly

inadequate initial investigation findings. ( Id .) Next, Plaintiffs contend that the Remand R esults are not supported by substantial evidence given the fact that the r emand investigation consisted of only two unverified customer surveys. (

Id . at 12-14.) Although the Remand R esults state that one customer decreased sales from the Tyco f

acility and did not increa se its imports of like products, Plaintiffs contend that Labor fails to

explain how

this fact is releva nt to a shif

t in produc

tion of fib er optic

componen

ts to Mexico. (

Id . at 13.) Pl aintiffs

also cont end that “ any

data tha t show that

sales wit h the U.S. plant decreased, while imports did not increase would indicate . . . a shift of sourcing to Mexican imports.” (

Id .) Plaintiffs contend that the second customer survey cannot be the basis for a reasoned analy sis because it contained incomplete responses that were suppleme nted by information whose source was unidentified in the record. ( Id . at 14.) Additionally, Forme r Employees asser

t that the declining sales data provided by the customers “should have prompted [Labor] to conduct an import analysis to see if imports of the product in question increased during the investigation period.” ( Id . at 15.) Fourth, Plaintiffs emphasize that Labor failed to a ddress the statutory cr

iteria under 19 U.S.C. § 233 1(a)(1 )(B) be cause th e investig ation did not examine w hether t here wa s a shift in production. (

Id . at 14-16.) Plaintiffs contend that Labor f ocused exclusively on sales data and the information from two customers, and did not consider any production data. (

Id . at 15.) Former Employe es contend that Labor is requir ed to certify

a group of workers for NAF TA-TAACourt No. 02-00152 Page 10

benefits if there is “a link between sales, production and import data , or [if there is] a shift in production to Mexico.” ( Id . at 15.) Plaintiffs contend that in the Remand R esults Labor ignore d the second possible basis for eligibility . ( Id . at 15-16.) Next, Plaintiffs argue that the Remand R esults are contrary to law because La

bor’s decision to reject the October 17 information was arbitra ry and ca pricious. (

Id . at 16 .) Alt hough not a par t of the a dministra tive rec ord, Plain

tiffs con tend that the Octob er 17 inf

ormation i s “highly releva nt to the inv estiga

tion” and contains some info rmation w

hich is re adily

availab le to Labor, y et was ignored during the entire investigation. (

Id . at 17.) According to Plaintiffs, the October 17 information includes the following: Ty co Electronics employee survey s; Tyco Electro nics shipp ing doc

uments; Un

ited State s and Mexic o trade d ata conc erning

fiber op tic products from Mexico; and a June 2001 United States Customs Service Tariff Classification ruling letter on fiber optic products from Mexico made in response to a Ty co Electronics ruling request. (Pls.’ Br. at Ex. 1.) Plaintiffs contend that “rejection of the data, a nd the failure of [Labor] to pursue the investigatory leads suggested by

the data was arbitrary

and capricious.” ( Id . at 17.) Sixth, Plaintiffs contend that the Remand R esults should be rejected because L abor failed to meet the threshold requirements for conducting an a dequate investigation. (

Id . at 19.) Plaintiffs contend that Labor should not have ac cepted unverified information from Ty co Elect ronic s regard ing th e alle ged shi ft in p roduc tion to Tyco El ectron ics’ H arris burg, Pennsylvania plant. (

Id . at 20.) Plaintiffs contend that the circumstances surrounding other recent Ty co plant closings should have prompted La bor to seek independent corroboration of the provided information. (

Id .) Forme

r Employ ees note that two pl ants that p

roduced the same article s as the pl ant in que stion rec eived pos itive NAF TA-TAA e ligibility determinations wit

hinCourt No. 02-00152 Page 11

months of the investigated time frame in this case. ( Id . (cit ing AMP, Inc., a Tyco International Ltd. Company, Fiber Optic Division, Middletown, Pennsylvania; Notice of Revised Determination on Reconsideration , 65 Fed. Reg. 16, 226 (Mar . 27, 2000) ; Notice of
Determi nations Re

garding Eli

gibility To A

pply for W

orker Ad justment A ssistance

and NAFTA Transitional Adjustment Assistance , 66 Fed. Reg. 54,783, 57,784 (Oct. 30, 2001)).) Plaintiffs contend that Labor failed to c onduct any import analy sis even though the Remand R esults state that certification was denied because incr eased imports did not contribute importantly to For mer Employees’ job sepa

ration. ( Id . at 23.) Further, Plaintiffs contend that because Ty co Electronics is part of a larger corpora te structure, Labor should have examined the corporate organization and the possibility of a two-step shift in production to Mexico. ( Id . at 24.) Plaintiffs acknowledge Ty

co Electronics’ explanation that at the time Former Employ ees were separated from thei r job, the Glen Rock

plant was

a “quick turn aro und” pro duction f

acility of items produced at the Mexican plant. ( Id . at 24-25.) However, Plaintiffs question why Labor did not investigate Former Employ ees’ claim that production was transferred dur ing an earlier period of time from the Glen Rock facility to Mexico and the Glen Rock facility wa s merely kept ope n for a brief period following this shift in production in order to conduct quality assurance of the products from Mexico. (

Id . at 25.) In response to L abor’s concession that a second remand is nec essary in this case , Plaintiffs contend t hat this concession

should be c losely

examined. (Pls.’ Rep ly B r. at 9.) Accord ing to Plaintiff s, La bor asse rts that th e Octobe

r 17 infor mation wa s conside

red and t hat L abor mer

ely failed to address the information in the Remand R esults . ( Id . at 3.) However, Plaintiffs contend that prior to this filing, “Defendant’s position had been that [L abor] had not considered the [October 17 information].” ( Id .) Forme

r Employ ees cont end that “ [o]ral and w

ritten sta tementsCourt No. 02-00152 Page 12

between counsel indicate that the October 17 informa tion was never considered by Defendant.” ( Id .) According to Plaintiffs, in December 2002, whe n counsel were engag ed in discussions regarding L abor’s request to file the Remand R esults out of time, Defendant’s counsel informed Plaintiff s’ counse l that L abor wou ld not cons ider the

October 17 inform ation bec ause to do so would be “improper” because the information wa s not gathered by Labor and theref

ore, not “officially pa

rt of the record.” (

Id . at 4.) Further, Plaintiffs contend that when Defenda nt sought Plaintiffs’ consent for another voluntary remand on March 5, 2003, Defendant’s counse l indicated that an additional remand was necessary so that Labor could consider the Oc tober 17 information. (

Id .) Plaintiffs conclude by stating that “[i]t is not credible that Labor considered [the October 17] information, but failed to cite its findings in the [ Remand R esults ], and failed to include the information in the remand record, and in the supplementary re

mand record supplied to the Court.” (

Id . at 5.) Former Employe es contend that a remand merely to allow Labor to “rewr

ite the remand investigation” to include a statement that it considered the October 17 inf ormation without ordering further investigation will not be serve the purposes of the Court. ( Id . at 6.) Plaintiffs urge th is Court, if

an additi onal rem and is fou nd to be ap

propria te, to pro vide spec ific instructions to Labor to thoroughly consider and evaluate the October 17 informa tion. ( Id .)
II

. Defendant’s Contentions In its response to Plaintiffs’ Rule 56.1 Motion, La bor contends that although the remand investigation was conducted in good faith, the investig ation “contains deficiencies.” (Def.’ s Br. at 8.) However, Defendant contends tha t “Labor did consider [the October 17] information collected by the

Plaintiffs in making its determination.” ( Id . at 9.) Defendant acknowledg es that “Labor failed to for

mally acknowledg e receipt of the evidence, document finding s in light of theCourt No. 02-00152 Page 13

evidence, and did not articulate a rationale c oncerning what effect the e vidence had upon the investigation.” (

Id .) Defendant concedes that the re mand results are not consistent with the Court’s Remand Order; therefore, the ca se should be remanded to Labor again. ( Id .) Defend ant conte nds that it i s inappro

priate f or the Cou

rt to cer tify Plaintiff s for elig ibility to receive NAFTA-TAA bene fits. ( Id .) Defe ndant ass erts that

the case s cited by

Plaintiff s in support of their argument that this Court should order certification ar e distinguishable from the case at bar. (

Id . at 10-11.) Defendant states that in United Ele ctric Rad io , the Court ordered Labor to certify

the plaintiffs only after

5 inadequate remand investigations. ( Id . at 10 (citing United Ele

c. Radio a nd Machin e Wo rkers of A m. v. Mar tin , 15 CIT 299 (1991)).) Fur ther, Defendant contends that in Former Employees of Hawkins Oil and Gas , the Cour t waited u ntil after the third inadequate remand investiga tion before ordering certifica tion. ( Id . at 11 (citing Former Employees of Hawkins Oil and Gas, Inc. v. United States Dep’t of Labor , 814 F. Supp. 1111 (Ct. I

nt’l Tra de 1993) ).) Fina

lly, Defend

ant disting

uishes Former Em

ployees of Barry Callebaut , by

stating that the Co

urt did not

order c ertific ation until

after th e fourth

inadequa te investigation. (

Id. (citing Former Employees of Barry Callebaut v. Herman , 240 F. Supp. 2d 1214, 1228 (Ct. Int’l Trade 2002)).) D efendant contends that in all three cases, “the Court r elied upon measures short of certification before r eaching the decision to order cer tification.” (

Id . at 11.) Fur ther, L abor ar

gues tha t orderin g cert ification is only

a “last r esort” a nd the Cour

t must find that a remand would be futile. ( Id .) Defe ndant con tends tha t a secon d remand in this cas e will “allow[] Labor to acknowledge, a ddress, and make a part of the recor d” the October 17 information. (

Id . at 12.) Additionally, L abor contends that “this Court does not possess the authority to certify [Plaintiffs] in the absence of a finding [by Labor] that the statutory criter ia have been satisfied.”Court No. 02-00152 Page 14

( Id .) Defendant contends that “there is no constitutional or statutory authority that empowers the Court to order Labor to cer tify [Plaintiffs] when no finding has been made by L abor that the statutory require

ments for certification have been met.” ( Id . at 13.) Defendant contends that although the Court can “ remand a case t o Lab or for f

urther e vidence ,” the Cou

rt canno t “simply express its impatience over Labor’s pur ported failure to conduct an ‘adequate inve stigation’ and direct labor to ‘certify

the employees’ for the requested benefits.” ( Id . at 13-14.) Defendant concludes by stating

that “this Court would exceed its authority by ordering La

bor to certify [Plaintiffs] in the absence of a finding by Labor that the statutory

requirements have been met.” ( Id . at 15.)
A NAL YSIS I. An Additional Remand is Necessary. Althoug h Lab or has ha

d four bit es at this a

pple: 1) Pl aintiffs ’ initial p etition; 2) Plaintiff s’ request for reconsideration; 3) Plaintiffs’ complaint in this action; and 4) the rema nd ordered on August 2002, the Court finds that an additional remand is necessary and directs Labor to conduc t further investig ation and

analy sis conce rning Pla intiffs’ request

for cer tification of elig ibility

to receive NAFTA-TAA be nefits. On remand, the Court instructs Labor to a ddress the following issues. A. Labor sha

ll consider

and analyze

the Octo ber 17 infor mation. As Labor concede s, the Remand R esultsare in direct violation of this Court’s Remand Order because they

do not contain any informa tion gathered from Plaintiffs. The Court finds that Labor’s failure to c ollect any informa tion from Plaintiffs, as well as Labor’s re jection of the October 17 information voluntarily submitted by the Plaintiffs was a result of L abor’s arbitrary and capricious treatment of this remand investigation. Acc ording to Plaintiffs, the October 17Court No. 02-00152 Page 15

information includes Tyco Ele ctronics employee surveys as we ll as potentially relevant import data. (Pl s.’ Br. at 16-17. ) Befo re the Cou rt can c onsider t

he merits of Plaintif

fs’ clai ms, it is
necessary for this information to be considered by Labor and made a

part of the administrative record. The Court is not persuaded by Defendant’s contentions that La bor considered the October 17 inform ation subm

itted by Plaintiff s and mer ely failed to address such information in the Remand R esults . On remand, Labor should deta il its analysis and evaluation of the Oc tober 17 information. Labor is encoura ged to conduct any

further investigation that might be necessar y to resolve any inc onsistencies that are revealed in its analy sis of the October 17 information versus the statements of Ty co Electronics company

officials. B. Labor shall consider the propriety of conducting an import analysis to support the scant import informat

ion provide d by the cust omer s urveys. In the Remand R esults , Labor concluded that F ormer Employee s failed to qualify for NAFTA-TAA because F ormer Employee s failed to meet the criteria under 19 U.S.C. § 2331(a )(1)(A )(iii): a ny i ncreas e in import s did not “c ontribute [] importantl y to such wor kers’ separation or threat of separation and to the dec line in the sales or production of such firm or subdivisio n.” (Pub. Supplemen tal Admin. R. at 18); see also 19 U.S.C. § 2331(a)(1)(A)(iii). This conclusion is based upon two customer survey s conducted after L abor had requested Ty co’s sales figures for the releva nt time periods. (

Id . at 17-18 .) One c

ustomer su

rvey was prop erly completed and contains information that could have aided L abor’s investigation. However, the other customer survey

has incomplete sales and import data and does not seem to provide any helpful information for Labor’ s investigation. Regarding this second customer sur vey, L abor states in the Remand R esults that “[one] major customer reported no direct import purchases during 1 999, 2000 a

nd January

through Septembe

r 2001. However, this customer reported tha t aCourt No. 02-00152 Page 16

small per centag e of the products p

urchase d were in

direct im ports (pr oducts pur

chased f rom a domestic source that were wholly manufactured in a foreign c ountry) during September 2001.” ( Id . at 18.) This statement seems to be only pa rtly corre ct. Although this customer did in fact “report[] no direct import purchases during 1999, 2000 and January through September 2001” (Pub. Supplemental Admin. R. at 18), this customer failed to include any information for 1999 or 2000. (Con f. Supplemental Adm in. R. at 10 .) The mis sing pur chase in formation for this customer was supplied by a Tyco Electronics company off icial. ( Id . at 13-14.) The Court finds Labor’s reliance

on such incomplete customer survey s to be insufficient to support Labor’s conclusion. Further, La

bor failed to conduct any

independent import analysis which mig ht have substantiated or contradicted the information reported by the customers. Therefore, the Court instructs Labor to reconsider its deter mination regarding Plaintiffs’ eligibility under 19 U.S.C. § 2331(a)(1)(A) and conduct furthe r investigation if necessary to determine if imports “contributed important ly” to the For

mer Emplo ye es’ loss o f jobs. Ad ditionally , Lab or is instr

ucted to a ssist the Court in understanding the seemingly contradictory

sales information provided by T yco Electronics for the articles produced at the Glen Rock facility for January - September 2000 a nd 2001. ( Compare

Conf. Admin. R. at 34, with Conf. Supplemental Admin. R. at 5.) C. Labor shall consider the arguments made in Plaintiffs’ 56.1 Motion regarding a shift in produc tion in light o f the data c ontained in t he Octobe r 17 inform ation and conduct further investigation as necessary. In the Remand R esults , Labor reitera tes its conclusion that the only shift in production was a domestic shift to an affiliated plant in Harrisburg, Pennsy lvania; therefore, Plaintiffs are not eligible for certification under 19 U.S.C. § 2331(a)(1) (B). (Pub. Supplemental Admin. R. at 18.) Contrary to the stateme nt in Defendant’s motion for voluntary remand, the Remand R esults do not con

tain “a more deta

iled factual and/

or lega l analy sis” to sup

port the c onclusion

that aCourt No. 02-00152 Page 17

shift in production to Mexico did not occur. (Def.’s Unopposed Mot. for Voluntary Remand at 2.) The only mention of a shift in produc tion is contained in Labor’s discussion of increa sed imports: “[the increase in imports occurred] after the decision by the subject firm to transfer producti on to Har

risburg , Pennsy

lvania a nd during the time of

the compl etion of the domestic transfer.” (Pub. Supplemental Admin. R. at 18.) The record does not indicate that Labor conducted any

further investigation on remand reg arding the alleged domestic transf er. Instead, Labo r’s st ate men t wo ul d se em t o i ndi cat e th at La bor mer ely r eli es o n t he i ni ti al i nve st iga ti on. In seeking a voluntary

remand after the initial investigation, L abor in essence conceded that the initial investigation was inadequate. ( See Def.’s U nopposed Mot. for V ol. Remand

at 2 (asserting that “[a]fter review of the administrative re cord in light of the arguments petitioners made in their 56.1 motion, defendant seeks a remand to L abor to conduct a further investigation and make a redetermination”).) Labor’s denial of Plaintiffs’ eligibility for certification based on the initia l investig ation into a

shift in pr

oduction f

alls short of the re asoned a

naly sis that is required to support Labor’s c onclusion. The only information in the re cord that supports Labor’s conc lusions in the Remand Results are unverified statements from an untitled Ty co Electronics company

official and the two customer survey s discussed above. ( See Letter from Tom Christner Responding F or Shane NorthCraft [sic], Tyco Electronics, Middleton [sic], Pennsy lvania to Elliot Kushner of 11/13/02, Conf. Supplemental Admin. R. at 4-5.) During the reconsideration investiga tion, Labor obtained information from Tyco E lectronics company officials during a telephone confer ence regarding the shift in production. ( See Notes to Conference Call concerning Ty co Electronics, Fiber Optics Division, Glen Rock, Pennsylvania with Steve Rey nosa and Sue Mullins and others on January 14, 2002, Conf. Admin. R. at 66-67.)Court No. 02-00152 Page 18

Althoug h Lab or may

appropr iately rely on the unv erified

statemen ts of comp any

officia ls, see, e.g., International Union, UAW Local 1283 v. Re ich , 20 F. Sup p. 2d 1288, 1297 n.15 ( Ct. Int’ l Trade 1 998); United Steel Wo rkers of A merica, Local 1082 v. McLau ghlin , 15 CIT 121, 122 (1991), such unverified statements “will not amount to substantial evidence if [they are] contradicted by

logic or other pertinent information in the record.” Former Employees of Pittsburgh Logistics Systems, Inc., v. United States Sec’y of Labor , No. 02-387, slip op. at 15, 2003 Ct. Int’l Trade L

EXIS 18, at *24 (Ct. I

nt’l Trade Feb. 28, 2003). As stated above, Labor failed to consider the October 17 information which, Plaintiffs contend, contains stateme nts that contradict the Ty

co Electronics officials’ statements reg arding a shift in production to Mexico. (Pls.’ Br. at 17.) Such evidence, if properly considered by

Labor, might sugg est that Tyco Electronics’ assertions are unsubstantiated and should be disreg arded. By failing to even examine the

data pro vided by

Plaintiff s, La bor’s Remand R esults are not supported by substantial evidence in the record or otherwise in ac cordance with law. On reman d, La bor shall reexamine

Plaintiff s’ elig ibility

for cer tification under 1 9 U.S.C. § 2331(a)(1)(B). The rema nd results should set forth Labor’s fac tual and legal analysis regarding a possible shift in production and include analy sis of the October 17 information supplied by Plaintiffs. Labor should conduct any further investigation that is necessary to determine Plaintiffs’ eligibility under § 2331(a )(1)(B).
II. Plaintiffs’ Motion for Certific ation is De nied. Althoug h Plaintiff

s’ arg uments re gardin

g why certifi cation in

this matte

r is appr opriate have mer it, the Cour

t finds tha t an addit ional re mand to L abor for

further investig ation is
necessary to fully develop the administrative re cord before the Court. However, as the Court ha s warned in the past, “[s]hould Labor not perform a competent . . . investigation upon remand, theCourt No. 02-00152 Page 19

Court will not remand for [an additional] investigation.” Barry Callebaut , 177 F. Supp. 2d at 1312. Be cause th e Court is ordering an additi onal rem and, the C ourt dec lines to ad dress Defendant’s contentions regar ding the authority of

this Court to order certification. C ONCLUSI ON Plaintiff s’ Motion f

or NAFT A-TAA Ce

rtifica tion is den

ied. This matter is r

emanded to the Department of Labor

for further consideration and investigation of 1) the October 17 information submitted by Plaintiffs; 2) the propriety of conducting an import analysis to support the information contained in the customer surveys, 3) the seemingly contradictory

information provided by Ty

co Electronics regarding

sales; and 4) the arguments made in Plaintiffs’ 56.1 Motion regarding a shift in production in light of the data contained in the October 17 information.

______________________________ Gregory W. Carman, Dated: May , 2003 Chief Judge New York, New York