BALCA Decisions
Cite as "Posted on AILA InfoNet at Doc. No. 02071241
(July 12, 2002) ."
By Joel StewartTo view the full text of the
cases, available in PDF format, click on the "Related Links" section.
Board Stops CO from Engaging in Game of ‘Gotcha’
BALCA Places Trust in U.S. Postal Service Finding Proof that Certified
Mail was Sent
Household Manager not quite Measuring Up to Hospital Administrator,
Finds Board
Judges Concur: Employer Needs Adequate Notice, Clear Instruction in
NOF
Board Stops CO from Engaging in Game of ‘Gotcha’
Joyful Manor, 2001-INA-157 (BALCA, June 5, 2002)
In Joyful Manor, 2001-INA-157, a BALCA decision was
reconsidered upon a motion by the certifying officer (CO). The Board had held in its prior
decision that “where no notice is provided (prior to commencement of contacting U.S.
applicants during recruitment) that alternative means of contact will be required to
document good faith in recruitment, the denial of certification cannot be denied solely on
that ground.” Joyful Manor, 2001-INA-157 (March 27, 2002).
The CO had argued in its motion for reconsideration that
the DOL policy embodied in the holding of M.N. Auto Electric Corp, 2000-INA-165 (Aug. 8,
2001) (en banc) only suggested, and did not require, that the CO instruct local job
services to provide early notice to employers that they have an obligation to try
alternative means of contact if the initial contact did not result in a response from the
U.S. applicant.
Given that the employer’s responsibility to contact
U.S. workers involves more than one type of contact, i.e., both in writing by certified
mail and by telephone, the Board held that it would be fundamentally unfair to place such
a burden on employers without advising them before the recruitment commences. Otherwise
the CO would be engaging in gamesmanship in a game of “gotcha.” The Board
concluded, “Reading M.N. Auto Electric Corp. in the manner suggested by the CO would
be tantamount to authorizing a CO to also engage in gamesmanship by not explaining the
rules of the game until it is too late for an employer to remedy the problem.”
(Reconsideration Denied, Washington, D.C.).
BALCA Places Trust in U.S. Postal Service Finding
Proof that Certified Mail was Sent
Edith Munk, 2001-INA-125 (BALCA, June 27, 2002)
In Edith Munk, 2001-INA-125, the Employer made efforts to
reach U.S. workers by sending certified letters. Although the Employer had white postal
receipts as proof that the letters were sent, not all the green receipts were returned.
The Employer failed to produce the unclaimed certified mail for two applicants and also
had no telephone bills to prove a secondary form of contact.
Regarding the unclaimed certified mail, the Board doubted
that unclaimed certified mailings would not have been returned, and wrote, “This
Board notes, however, that unclaimed certified mailings are routinely returned to the
sender by the U.S. Postal Service.” (Denial of Labor Certification Upheld, San
Francisco, CA).
Household Manager not quite Measuring Up to Hospital
Administrator, Finds Board
Kathleen C. & John R. Joaquin, 2002-INA-42 (BALCA, June
24, 2002)
In Kathleen C. & John R. Joaquin, 2002-INA-42, the
Employer required a household manager with two years’ experience in the job offered
or as a hospital administrator. At issue was whether the job of hospital administrator is
substantially equivalent to the primary requirement for household manager. The Board
found, “The worker’s supervisory function and responsibility over other
employees dominates the character and nature of the position of household manager,”
and further noted that the persons to be supervised in the Employer’s household were
independent contractors who did not need supervision.
Another issue was the request for a Schedule B waiver. The
Employer had failed to formally request a waiver for Schedule B. In conclusion, the Board
vacated the decision to provide an opportunity for the CO to determine whether the
appropriate job title for the position is household manager, by means of an examining
cancelled checks, bank statements and a reconciliation for the last 16 months, along with
the amount of control exercised by the alien over the account. (Remanded, Philadelphia,
PA).
Judges Concur: Employer Needs Adequate Notice, Clear
Instruction in NOF
Allan N. Lowy, 2001-INA-93 (BALCA, March 22, 2002)
In Allan N. Lowy, 2001-INA-93, the Board analyzed the CO’s decision regarding the
Employer’s ability to pay the wages. The adjusted gross income was only $48,468;
however, there were other sources of income, including trust income in the amount of
$58,336 and liquid assets of nearly $47,000. The Employer also provided W-2s for the
aliens documenting wages paid. The Employer had not provided all the documentation in
response to the NOF, largely because of a lack of clarity, and the Board found that the
Employer had not been given a full opportunity to address the issue.
On appeal, the Board noted that the Employer’s
Schedule C revealed a gross income of $144,674, suggesting expenses that were non-cash
outlays relevant only for tax purposes. Judge Vittone concurred, but wrote to clarify
several points. First, Judge Vittone noted that the ability to pay is the most important
factor in the totality of circumstances test. Second, since the CO only discussed the
income issue in the Final Determination, the Employer had not been given adequate notice,
even though the Employer was an attorney. Third, additional indicium of the bona fide
nature of the job was the “prior employment of the alien as a cook.” (Remanded,
San Francisco, CA).
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