[Federal Register: July 15, 2008 (Volume 73, Number 136)]
[Notices]               
[Page 40621]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jy08-90]                         


[[Page 40621]]

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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-62,947]

 
Norcal Pottery Products, Macram[eacute] Department, Richmond 
Distribution Center, Richmond, CA; Notice of Negative Determination on 
Reconsideration

    On April 30, 2008, the Department issued an Affirmative 
Determination Regarding Application for Reconsideration for the workers 
and former workers of the subject firm. The notice was published in the 
Federal Register on May 7, 2008 (73 FR 25772).
    The TAA petition, which was filed on behalf of workers at Norcal 
Pottery Products, Macram[eacute] Department, Richmond Distribution 
Center, Richmond, California engaged in the production of 
macram[eacute] plant hangers was denied based on the findings that 
during the relevant time period, the subject company did not separate 
or threaten to separate a significant number or proportion of workers, 
as required by Section 222 of the Trade Act of 1974.
    In the request for reconsideration, the petitioner stated that the 
subject firm contracted five independent contractors to produce 
macram[eacute] plant hangers. The petitioner also stated that the 
contracts between the subject firm and the contractors were terminated 
in 2007. The petitioner seems to allege that because the workers were 
contracted to perform production for the subject firm, they should be 
considered as employees of the subject firm and, therefore, eligible 
for Trade Adjustment Assistance. To support the allegations, the 
petitioner attached copies of the ``Independent Contractor Agreement''.
    To determine whether five contracting workers were employees of the 
subject firm, on-site leased workers, or workers under the control of 
the subject firm and whether there was a significant proportion of 
workers separated or threatened with separations at the subject company 
during the relevant time period, the Department contacted the subject 
firm's company official and requested employment figures for the 
relevant employment data (for one year prior to the date of the 
petition and any imminent layoffs).
    The company official stated that five independent contractors were 
not employees of Norcal Pottery Products, Macram[eacute] Department, 
Richmond Distribution Center, Richmond, California, and they were not 
leased workers employed on-site of the subject facility. It was 
revealed that the independent contractors produced macram[eacute] plant 
hangers at their homes. The company official also stated that the 
nature of the business between the subject firm and the independent 
contractors was determined by the contractual agreement, which 
underlines no operational control by Norcal Pottery Products over these 
independent contractors.
    The Department carefully reviewed the Independent Contract 
Agreement provided by the petitioner to determine whether there was 
operational control by the subject firm over the contracted workers. 
According to the document, the relationship between the parties is 
described as two independent entities ``engaged in a separate business 
enterprise''. It states that the ``contractor is free to contract 
similar services to be provided for other customers''. The Agreement 
also states that ``Company is concerned only with the act of completion 
of the work,'' and that ``the conduct and control of the work to be 
provided by Contractor will lie solely with the Contractor, who alone 
shall be in control'' of the work. Furthermore, the agreement allows 
the contractor to employ or utilize other persons to carry out the 
terms of the Agreement under contractor's control.
    The investigation on reconsideration determined that five 
contractors claiming to be employees of Norcal Pottery Products, 
Macram[eacute] Department, Richmond Distribution Center, Richmond, 
California were not employees of the subject firm or leased workers 
employed on-site of the subject facility. The investigation also 
revealed that the independent contractors were not under operational 
control of the subject facility, and thus cannot be considered to be a 
part of the worker group employed by the subject firm.
    After careful review of the information provided on 
reconsideration, it was revealed that Norcal Pottery Products, 
Macram[eacute] Department, Richmond Distribution Center, Richmond, 
California is a distribution facility and no production of 
macram[eacute] plant hangers took place at the subject location. 
Moreover, a review of the records provided by the company official 
established that only two workers were separated from the subject 
facility during the relevant time period.

Conclusion

    After reconsideration, I affirm the original notice of negative 
determination of eligibility to apply for worker adjustment assistance 
for workers and former workers of Norcal Pottery Products, 
Macram[eacute] Department, Richmond Distribution Center, Richmond, 
California.

    Signed at Washington, DC, this 1st day of July, 2008.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E8-16078 Filed 7-14-08; 8:45 am]

BILLING CODE 4510-FN-P