STEVEN P. SANTNER, Claimant

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the claimant is not an adversely affected worker under petition TA-W-40142 and no Trade Readjustment Allowances are payable to him.

Dated and mailed May 21, 2003
santnse . tsd : 110 :  TRA

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner

This case presents a question of whether the claimant was eligible for benefits under the Trade Act of 1974, 19 U.S.C. § 2101 et seq., a federal program intended to assist American workers who have lost their jobs to competition from abroad.

Under the Trade Act, "certifications" are issued establishing that a specified group of workers has been adversely affected by foreign competition. 19 U.S.C. § 2291. The decision on whether a certification is issued, and on what its scope will be in terms of what workers it covers, is committed by law to the Secretary of the U. S. Department of Labor.

Once a certification has been issued, workers who are covered by that certification may apply for TRA benefits. At that stage, the program is administered by cooperating state agencies, which determine whether individual worker claimants satisfy eligibility requirements to receive benefits. It is important to bear in mind, that state agencies cannot second-guess the determination of the Secretary of Labor as to what the proper scope of a certification should be. The state agencies can only determine whether a worker is covered by a certification as it has been issued by the Secretary of Labor.

The claimant sought to establish eligibility for benefits under certification number TA-W-40142. The specific issue presented by this case, is whether he was covered by that certification.

The claimant worked for Capitol Engineering, a division of Mercury Marine. Mercury Marine has a plant in Fond du Lac at which outboard motors are produced. Capitol Engineering is located in Brookfield, Wisconsin. It produces the tools and dies which are used at the Mercury Marine plant in Fond du Lac to make the outboard motors produced there.

The relevant certification, number TA-W-40142, states as follows:

The investigation was initiated in response to a petition received on September 28, 2001, and filed by the International Association of Machinists and Aerospace Workers, District #10 on behalf of all workers at Mercury Marine, Brunswick Corporation, Fond du Lac, Wisconsin. The workers produce outboard engines.

This investigation revealed that production and employment declined at the subject plant in the relevant period.

The Department of Labor conducted a survey of the subject firm's major customers regarding their purchases of outboard engines. The survey revealed that a major declining customer is increasing import purchases of outboard engines from foreign sources during the period under investigation.
. . .
After careful review of the facts obtained in the investigation, I conclude that increases of imports of articles like or directly competitive with outboard engines produced at Mercury Marine, Brunswick Corporation, Fond du Lac, Wisconsin contributed importantly to the decline in sales or production and to the total or partial separation of workers of that firm. In accordance with the provisions of the Act, I make the following certification:

"All workers of Mercury Marine, Brunswick Corporation, Fond du Lac, Wisconsin, who became totally or partially separated from employment on or after September 10, 2000, through two years from the date of this certification, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974."

(emphasis added).

At the hearing in this matter, the claimant sought to demonstrate that there is a close connection between the Capitol Engineering plant and the Mercury Marine plant in Fond du Lac where the outboard motors are produced. The claimant obviously feels very strongly that because of this close connection, and because of the effect that a decline in business at the Fond du Lac plant had on the activities of Capitol Engineering, the certification should have extended to the employees of Capitol Engineering. However, as discussed above, that is not a decision that the commission can make. It does not have the legal authority to decide this case based on its views about what the U. S. Secretary of Labor should have done in response to Petition Number TA-W-40142. It is bound by what the Secretary of Labor did do. Thus, the only question it can address, is whether the certification did extend to the employees of Capitol Engineering.

The commission agrees with the administrative law judge, that the certification in this matter did not extend to Capitol Engineering in Brookfield. It is quite clear from the certification considered as a whole, that it is very specifically directed at the employees who are producing outboard motors at the Mercury Marine plant in Fond du Lac.

This conclusion is compelled by the fact that the certification conspicuously fails to make any mention whatsoever of Capitol Engineering or of the Brookfield location. It is also compelled by the fact that the certification notes that the petition was filed on behalf of all workers "at" (not "of") Mercury Marine, Brunswick Corporation, Fond du Lac, Wisconsin, and that it involved "the workers [who] produce outboard engines". It is also compelled by the fact that the certification then recites that the investigation revealed that production and employment declined "at the subject plant" in the relevant period. This clearly indicates that the subject of the certification was a plant, not an entire company. "[T]he subject plant" was clearly the Mercury Marine plant in Fond du Lac where the workers produce outboard engines.

This conclusion is also consistent with the law governing the determination of what groups of workers may be certified. A group of workers may be found eligible for a certification either as "production workers" or as "support service workers." See, e.g., Former Employees of Chevron Products Co. v. U. S. Sec'y. of Labor, 245 F. Supp. 2d 1312 (U. S. Court of International Trade, 2002). The employees at Capitol Engineering, who do not make the outboard motors that are the focus of the certification here but rather make tools and dies that are then used by the Fond du Lac employees to make the outboard motors, are "support service workers". The language used in the certification in this matter is consistent with the standards used by the Department of Labor to decide whether to issue a certification for "production workers". This makes it evident that the certification was intended to cover the workers at the Mercury Marine plant at Fond du Lac who actually make the outboard motors.

Because the claimant was not covered by the certification, the decision that he was ineligible for TRA benefits was correct. The commission therefore affirms the decision of the administrative law judge in this matter.

cc: Tim Hackett

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uploaded 2003/05/30