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BALCA rules prematurely on wages for Specialty Cook
by Joel Stewart, Esq.

March 04, 2000 -- On February 4, 2000, the Board of Alien Labor Certification Appeals (BALCA) issued an en banc decision, El Rio Grande, 98-INA-133, ruling on the applicability of the Service Contract Act (SCA) to wage determinations for Foreign Specialty Cooks. The Employer and alien had requested certification for the position of "Specialty Cook, Mexican," with the New York State Department of Labor (SESA) and had included a request for reduction in recruitment. The wage offered by the Employer was $11.00 per hour, but the SESA, using the McNamara-O’Hara Service Contract Act, determined it to be $17.43 per hour. After transmittal to the Regional Office, the wage was reviewed by the Certifying Officer (CO), who issued a Notice of Findings (NOF), upholding the SCA wage. On rebuttal, the Employer argued that the job of Mexican Specialty Cook 1 should not be equated with Cook II 2 under the SCA; however, the CO disagreed and denied the application in her FD. The Employer and Alien then appealed the FD to BALCA.

The regulations governing applications for reduction in recruitment are succinct and leave no doubt about the procedure to be followed by the Department of Labor. In the event that the application for reduction in recruitment is denied, the application must be returned to the State for labor certification processing. The regulations further specify that a FD may not be issued until the entire recruitment procedure has been followed.3 In the instant case, the CO upheld the SCA wage determination, and, instead of remanding, issued a. NOF and a FD, denying the application. The Employer and Alien appealed to the CO, and the application was transmitted and docketed at BALCA. The Board accepted jurisdiction to rule on the merits of the case, and, instead of remanding to the CO for further processing in accordance with the regulations, BALCA upheld the FD despite the Employer’s appeal.

The question of interlocutory appeals at BALCA has been previously addressed in Vicki Greenberg, DDS, (BALCA, 98-INA-138), a case of first impression in which AILA participated as Amicus. AILA argued that the CO may not consider and deny an application filed with a request for RIR on the issue of business necessity, unless the entire recruitment process, set forth in 20 CFR 656.21, has been followed. As noted above, the regulations specifically state that a request for RIR, if denied, must be remanded for recruitment, lest the issue be denied and an incomplete record file be appealed to BALCA prematurely, on an interlocutory basis. Accordingly, all that BALCA can do is terminate the proceedings and remand for completion of the recruitment process as described in the regulations.4

This and other employers in federal court in California raised the issue of interlocutory appeals to BALCA at the same time. There, the Plaintiffs argued in Lauretta v. Herman 5 that the interlocutory appeal process mandated by GAL 1-97 was illegal.6 Following a settlement between the parties, the DOL issued an amendment to GAL 1-97 in the Federal Register, which now states as follows:

"As a result of the settlement agreement in Lauretta v. Herman, March 5, 1999, the efficiency measure of having unduly restrictive job requirements adjudicated prior to allowing advertisements to be published is being removed. This change to GAL 1-97 is to remove that requirement and reemphasize the other measures stated in that GAL." 7

The DOL also asserted in the amendment,

"No Notice of Findings (NOF) shall be issued and no labor certification denied based solely upon this GAL, as this GAL is not intended to substantively change the Department's regulations or BALCA case law for the adjudication of applications for labor certification."

Now, in El Rio Grande, the DOL has failed to follow its own, publicly stated policy, one which undoubtedly seeks to remove the substantial incentive that CO’s have to eliminate backlogs and minimize workloads through the issuance of NOF’s and FD’s without adequate consideration to all the issues. Anticipating the prejudice that could ensue from a rush to judgment, BALCA remanded the first such interlocutory appeal in 1998 for lack of ripeness:

"Employer has not engaged in recruitment and the CO has not granted a reduction in recruitment ("RIR"). Where the CO's refusal to grant an RIR was based on her finding that these requirements were unduly restrictive, she may change her mind on remand." 8

In actual fact, the CO did change her mind and ultimately granted certification, a possibility that has been totally eliminated for the hapless Employer in El Rio Grande.9

Although the DOL has stated that the purpose of revamping the Alien Labor Certification Program is to increase efficiency and that GAL 1-97 purports to implement that policy without any change in the existing laws, GAL has created substantial changes, including the introduction of interlocutory appeals in labor certification processing, a phenomenon which is antithetical to all the precepts of administrative law.

1 Specialty Cook, Foreign Foods.

2 Cook II 07042 in the SCA Directory of Occupations.

3 20 CFR 656.21(i)(5).
(5) Unless the Certifying Officer decides to reduce completely the recruitment efforts required of the employer, the Certifying Officer shall return the application to the local (or State) office so that the employer might recruit workers to the extent required in the Certifying Officer's decision, and in the manner required by §§656.20(g), 656.21(f), 656.21(g), and 656.21(j) of this part (i.e., by post-application internal notice, employment service job order, and advertising; and a wait for results). If the Certifying Officer decides to reduce completely the recruitment efforts required of the employer, the Certifying Officer then shall determine, pursuant to §656.24 whether to grant or to deny the application.

4 Basic principles governing administrative procedures place limitations on interlocutory appeals as a means of avoiding piecemeal review of the administrative law judge’s actions. International Raw Materials v Stauffer Chem. Co. (3rd Cir. 1992) 978 F2d 1318, 1992-2 CCH Trade Cases P 700162, cert den 123 L Ed 2d 154, 113 S Ct 1588.

5 Lauretta V. Herman (No. 98-56061, [9th Cir. March 5, 1999]).

6 In El Rio Grande, BALCA did not discuss 20 CFR 656.21[I][5].

7 "The Employment and Training Administration is publishing for public comment General Administrative Letter (GAL) No. 1-97, Change 1, Subject: Measures for Increasing Efficiency in the Permanent Labor Certification Process, which it issued as a result of the settlement agreement reached in Lauretta V. Herman (No. 98-56061, (9th Cir. March 5, 1999)). GAL 1-97 was originally issued on October 1, 1996. GAL 1-97, Change 1, published below differs from the October 1, 1996, issuance primarily in that the efficiency measure of having unduly restrictive job requirements adjudicated prior to allowing advertisements to be published has been removed."

8 In the Matter of IASCO, 98-INA-70 (BALCA, November 24, 1998)

9 In the Matter of IASCO, 99-INA-151 (BALCA, February 2, 1999)