BALCA En Banc Decision Summaries
REBUTTAL

NOTICE : These BALCA en decision summaries were created solely to assist BALCA staff in researching BALCA caselaw. The summaries are not part of the opinions and in no way constitute the official opinion of BALCA, the Office of Administrative Law Judges or the Department of Labor on any subject. The summaries should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. They are intended simply as a research tool, and are not intended as final legal authority and should not be cited or relied upon as such.

Employer must perfect record sufficient to grant certification at rebuttal stage

Rebuttal: "Under the regulatory scheme of 20 C.F.R. Part 24, rebuttal following the NOF is the employer's last chance to make its case. Thus, it is the employer's burden at that point to perfect a record that is sufficient to establish that a certification should be issued." CARLOS UY III , 1997-INA-304 (Mar. 3, 1999) (en banc)

Timeliness - discretion of CO to refuse to consider untimely rebuttal

Rebuttal: timeliness: CO did not abuse his discretion in refusing to consider an untimely rebuttal. AUGUSTA BAKERY , 1988-INA-297 (Jan. 12, 1989) (en banc)

Timeliness - sufficiency of notice of due date

Rebuttal: timeliness: CO cannot find rebuttal untimely when he failed to provide employer notice of due date as required by the regulations. J. MICHAEL & PATRICIA SOLAR , 1988-INA-56 (Apr. 6, 1989) (en banc)

Rebuttal: timeliness: where it appeared that the CO's staff may have stated or implied to the Employer that the results of its recent recruitment could be filed subsequent to the original rebuttal deadline, the Board remanded the case "to the CO to determine whether the Employer, directly or by implication, was given an extension of time in which to file further rebuttal evidence or otherwise was misled into believing that it could report the results of its post-NOF recruitment when completed." MODGRAPH, INC. , 1988-INA-287 (Dec. 29, 1988) (en banc)

Timeliness - equitable tolling

Rebuttal: timeliness: deadline is non-jurisdictional and may be waived in appropriate circumstances: ends of justice will not be served by allowing Employer to suffer the consequences of its attorney's negligence: " Notwithstanding the outcome of this case, we note that it is not the intent of this Board to ignore or disregard the filing deadlines contained throughout Part 656 of the regulations. Rather, the holding in this case will be limited to those rare instances in which failing to toll regulatory deadlines would result in manifest injustice. Editor's note: Bloom was strictly construed in Park Woodworking, Inc. , 1990-INA-93 (Jan. 29, 1992) (en banc)]. MADELINE S. BLOOM , 1988-INA-152 (Oct. 13, 1989) (en banc)

Rebuttal: timeliness: Board rejects assertion that Bloom decision is inconsistent with Augusta Bakery, 1988 INA 297 (January 12, 1989) (en banc): Board clarifies that abuse of discretion standard is not inconsistent with manifest injustice standard: "[A] CO's refusal to waive or extend a nonjurisdictional regulatory deadline generally will not constitute an abuse of discretion. ...When, however, as in Bloom , it is apparent that the CO's refusal to waive or extend a nonjurisdictional regulatory deadline will result in manifest injustice, a determination that the CO has abused his or her discretion is appropriate." MADELINE S. BLOOM , 1988-INA-152 (Dec. 20, 1989) (en banc den recon) [see also MADELINE S. BLOOM , 1988-INA-152 (Jan. 3, 1990)(en banc den recon erratum)

Rebuttal: timeliness: equitable relief due to manifest injustice: Madeleine S. Bloom, 88-INA-152 (Oct. 13, 1989) (en banc), recon. den. (Dec. 20, 1990) (per curiam). standard strictly construed: equitable relief not mandated where there is no specially egregious factor in the case, such as the deceptive, defaulting attorney in Bloom. An apparent misconstruction of the NOF is not sufficient. Also, the Board observed that in Bloom if the rebuttal had been timely filed a grant of certification was virtually inevitable. PARK WOODWORKING, INC. , 1990-INA-93 (Jan. 29, 1992) (en banc)

Due process: impossibility of completing rebuttal during 45 day period: where employer was instructed to show its contact of colleges and universities for recruitment, which the employer did during the rebuttal period, but the CO denied certification because employer's submission did not show the results of the contact, the Board remanded the case because the contacts would not have been responded to during the rebuttal period. AL-GHAZALI SCHOOL , 1988-INA-347 (May 31, 1989) (en banc)

Rebuttal: failure to rebut: manifest injustice standard for equitable relief: the Board found the employer's failure to rebut a supplementary NOF was excusable where the employer had timely filed rebuttal to the first NOF, the supplementary NOF was obscure as to the nature to the error, the error was de minimis (miscalculation of the overtime rate by approximately three cents), the high probability that certification would have been granted had the overtime rate been properly calculated, the employer's evident good faith in recruitment shown by offering a wage significantly higher than the prevailing wage, and the fact that there were no U.S. applicants for the job despite the high wage offer. The Board found inconsequential the CO's argument that this case was distinguishable from Madeleine Bloom insofar as Bloom involved untimely rebuttal whereas the instant case involved failure to rebut. BUENA VISTA LANDSCAPE , 1990-INA-392 (July 9, 1991) (en banc)

Offer to readvertise if rebuttal not accepted

Rebuttal: offer to readvertise if rebuttal is not accepted: : "The holding in A. Smile[, 1989-INA-1 (Mar. 6, 1990)], is a limited one which rests on underpinnings of fairness and due process. It affords an employer the opportunity to attempt to establish the business necessity for a job requirement and, if unsuccessful, readvertise the position if the employer has unequivocally agreed to readvertise in accordance with the requirements set forth by the CO in the NOF. A. Smile does not apply where: 1. The offer to readvertise is equivocal. 2. The NOF finds that no permanent or full time job exists. 3.The NOF finds that the employer rejected U.S. applicants who met the restrictive requirements. 4. The NOF finds a lack of good faith recruitment, including: a. An unreasonable delay in contacting U.S. applicants. b. Failure to account for all resumes forwarded by the state employment service. c. Job requirements designed to discourage U.S. applicants. d. Unstated job requirements. e. Failure to comply with the posting of notice requirements or failure to advertise in an appropriate newspaper or technical journal as directed by the CO." [Editor's note: See also the companion case in Plant Adoption Center , 1994-INA-374 (Dec. 12, 1997)( A. Smile did not apply because employer sought to add a restrictive requirement after finding U.S. applicants who were qualified)]. RONALD J. O'MARA , 1996-INA-113 (Dec. 11, 1997) (en banc)

Rebuttal: NOF that limits Employer's rebuttal options: "The principle underlying O'Mara is improperly circumvented by the CO where the NOF is written in such a way so as to preclude the employer from agreeing to delete the restrictive requirement and readvertise if its business necessity argument is not accepted by the CO." Cottonwood Home , 2004-INA-2 and 42 (Mar. 11, 2005) (en banc)

See also Unduly Restrictive Job Requirements/Business necessity: offer to reduce restrictive requirements and readvertise