CIT Sends Back Labor's Trade Adjustment Assistance Decision Over Unverified Information

The Labor Department unlawfully relied on unverified statements from AT&T officials when denying a unionized group of former AT&T call workers trade adjustment assistance, the Court of International Trade said in a Jan. 5 opinion. Sending the decision back to Labor a second time, Judge Miller Baker said the department can't claim to have verified email communications with AT&T's in-house counsel based only on AT&T knowing the most about its business operations.

The union launched its case when it was denied aid over a series of call centers that were allegedly outsourced to foreign countries. Former call center employees from Kalamazoo, Michigan; Indianapolis; and Appleton, Wisconsin, gave Labor evidence that the call center jobs were relocated to Mexico and Jamaica. In May, the trade court initially remanded the case to Labor after the judge found that the department failed to discuss or reference the union's evidence (see 2105040032).

On remand, Hope Kinglock, a certifying officer with Labor's Office of Trade Adjustment Assistance, looked at the evidence and continued to find that the employees weren't entitled to the aid (see 2107230031). In the case's second opinion, Baker said Kinglock's reconsideration of the evidence addressed this deficiency in Labor's original determination. The judge's confirmation of Labor's actions comes despite attacks from the union dubbing the decision a "half-baked analysis" of the situation (see 2109230075).

The second basis for Baker's original remand, however, was that Labor relied on unverified email communications to make its decision. Following the remand, the judge continued to find that the department's explanation was unsatisfactory. Part of this decision is because the court doesn't know whether Labor's remand relies on verified questionnaire responses, the noncertified email communications, or both.

"The court therefore concludes that the certifying officer relied on both types of material," Baker said. "But as with the original and reconsideration determinations, Labor’s remand determination does not reveal to what extent the certifying officer relied on the certified questionnaire responses or the noncertified e-mail communications."

While Labor said that the information was "accurate and complete," the court took issue with how Labor came to this conclusion. The department said the information was reliable because AT&T knows its business operations best. "Mere knowledge is not itself a reason to presume that the response is truthful, which is presumably why Congress chose to impose the certification requirement in the first place," Baker said. The judge also found that, contrary to Labor's arguments, the mere existence of a statutory obligation to tell the truth in these proceedings isn't enough to find that AT&T was aware of that obligation and the consequences of not telling the truth.

Labor also said that the certification of the questionnaire responses and the following email correspondence with AT&T's representatives confirmed the accuracy of AT&T's information. The judge said that conclusion was a non sequitur and that the certification of questionnaires doesn't apply to noncertified information. In its second remand, Baker instructed Labor to explain why this information, to the extent that the department relies on it, is "accurate and complete."

(Communications Workers of America Local 4123, on behalf of Former Employees of AT&T Services Inc. v. U.S., Slip Op. 22-2, CIT #20-00075, dated 01/05/22, Judge Miller Baker. Attorneys: Bernd Janzen of Akin Gump for plaintiff; Brian Boynton for defendant U.S. government)