Despite the Labor Department's seven previous attempts at investigating trade adjustment assistance for Utah oil workers who claimed they lost work because of imports from Canada, the U.S. Court of International Trade ruled July 28 that DOL had still not conducted a proper review and must again investigate the claims (Former Employees of Chevron Products Co. v. United States Sec. of Labor, Ct. Int'l Trade, No. 00-08-00409, 7/28/03).

In a decision that was highly critical of the Labor Department's handling of the Trade Adjustment Assistance claims of the former employees of Chevron Products, Judge Delissa L. Ridgway said that despite "at least seven 'bites at the apple' " the Labor Department had not properly considered whether "gaugers" at Chevron's Roosevelt Terminal unit were involved in oil production and whether they lost their positions because of increased exports from Canada under the North American Free Trade Agreement.

"[T]he agency has repeatedly failed and refused to seek relevant data and to make a determination as to whether imports--from Canada or elsewhere--contributed to the Roosevelt workers' separation," Ridgway said. "Out of an abundance of caution and in an exercise of restraint, the Labor Department will be afforded one final, brief, opportunity to do so."

This is not the first time that the trade court has criticized the Labor Department's handling of the Chevron workers' claims. Last October, Ridgway chastised DOL for the "sloppiness" of its report and its failure to properly investigate the claims. This current ruling is in response to the remand order issued last year (211 DLR AA-1, 10/31/02).

In this ruling, the court said that despite "a fairly scathing critique of the Labor Department's investigatory methods, its findings and its determinations in this case," DOL again failed to explain why the gaugers were not considered production workers and that it would be futile to send the case back to DOL. Therefore, the court said, it was clear from precedent that the employees were engaged in production and DOL no longer needed to wrestle with that issue.

Company Called Employees Truck Drivers.

The Chevron workers were employed as "gaugers" and described their former jobs as performing a number of tasks at well heads and crude oil tanks before the oil was purchased and transported. These duties, they said, included checking oil temperature, gauging the amount of crude in a tank, collecting samples for testing, and examining tanks for impurities. Chevron disputed this job description, describing the workers as truck drivers who would pick up and deliver crude oil.

In their petition for NAFTA-TAA benefits, the laid-off workers linked their job losses to Chevron's growing reliance on Canadian oil, its cutbacks in domestic production, and the consequent reduced need for gaugers. Benefits such as extended unemployment aid are available under the program when workers can show their job losses are trade-related. The state department of workforce services confirmed that Chevron had been buying more lower-cost Canadian oil.

The Labor Department, accepting the company's version of the gaugers' job descriptions, determined that they did not qualify either as production workers or support service workers for purposes of coverage under NAFTA-TAA.

After subsequently investigating the situation when being asked to reconsider the initial decision, the Labor Department held in its initial report to the trade court that NAFTA-TAA benefits were not available in this case. On remand from October's ruling, DOL was expected to examine both the question of the employees' status as production workers as well as whether imports from Canada or elsewhere were responsible for the job loss.

Specific Data Lacking.

Ridgway chided DOL in this ruling for failing to again determine whether imports played a role in the layoffs. The court explained that DOL was given an extension to complete an investigation of the issue, but no such investigation was referred to in the report and the import question was left unanswered. Instead, the government has asked for another opportunity to make a determination.

"To the extent that the Labor Department had failed to date to compile what is--in its eyes--sufficiently 'precise data' on Canadian imports for purposes of a NAFTA-TAA analysis, the agency has no one but itself to blame," the court said.

The court explained that DOL had made general conclusions that there was an increase in Canadian crude by Chevron during the time period in question, a point made by the workers. That there is not more in-depth information, the court said, was made more glaring because it had obtained general information about Chevron's crude oil imports but failed to ask specifically about imports from Canada.

While finding the evidence was "relatively scant," the court said it was also "consistent, uncontroverted and telling" and that there was a steady decline in crude oil processing at the same time there was a "massive surge" in crude imports.

Unfortunately, the court said, it could not say that the information was the "substantial evidence" necessary to order the workers eligible for benefits and therefore DOL needs to make yet another attempt to provide data. The agency was given until Sept. 2 to conclude its investigation.

Richard H. Sheppard and Diane L. Weinberg of Meeks & Sheppard in New York represented the workers. Henry R. Felix of the U.S. Department of Justice in Washington, D.C., represented DOL.

By Michael R. Triplett