RECONSIDERATION BY THE CO
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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. |
Requirement that CO rule on motions to reconsider
Reconsideration by the CO: where an employer timely files a motion for reconsideration the CO must formally rule on the motion: a hand written memo to the file documenting a telephone call by a member of the Certifying Officer's staff is insufficient. CHARLES SEROUYA & SON, INC. , 1988-INA-261 (Mar. 14, 1989) (en banc)
Reconsideration by the CO: CO's have the inherent authority to reconsider a Final Determination prior to it becoming final (35 days after issuance): " This does not mean that the CO must reconsider a denial of certification whenever such a motion is filed. Nor must the CO accept the validity of evidence submitted on reconsideration and change the outcome of the case. But at least where, as here, the motion is grounded in allegations of oversight, omission or inadvertence by the CO which, if credible, would cast doubt upon the correctness of the Final Determination, and the Employer had no previous opportunity to argue its position or present evidence in support of its position, the CO should reconsider his or her decision." (footnote omitted). In the instant case, evidence that a rebuttal was timely filed obviously could not have been presented prior to the time that the employer was informed that the CO considered the rebuttal to have been untimely. Remand. HARRY TANCREDI , 1988-INA-441 (Dec. 1, 1988) (en banc)
Reconsideration by the CO: "[T]he CO is required to state clearly whether he has denied an employer's request for reconsideration, Harry Tancredi, 88-INA-441 (Dec. 1, 1988) (en banc), or has granted the request and, upon reconsideration, affirmed his denial of certification. But we find no requirement of a statement of reasons for the denial of a motion for reconsideration which merely lets a prior denial stand." RICHARD CLARKE ASSOCIATES , 1990-INA-80 (May 13, 1992) (en banc)
Reconsideration by the CO: remand where the CO did not explain the grounds for denying the motion for reconsideration: [Editor's note: this decision was limited to its facts and is probably implicitly overruled by Richard Clarke Associates, 1990-INA-80 (May 13, 1992) (en banc)]. LINEN STAR , 1990-INA-438 (Dec. 7, 1990) (en banc)
Reconsideration by the CO: remand to CO to consider motion for reconsideration that contained new evidence: [Editor's note: more recent BALCA authority on motions to reconsider is found in Richard Clarke Associates , 90-INA-80 (May 13, 1992)(en banc)] KINGS COUNTY HOSPITAL CENTER , 1987-INA-715 (May 13, 1988) (en banc)
Circumstances justifying denial
Reconsideration by the CO: CO did not abuse his discretion in denying a second extension to file rebuttal where it the request was received only the day before the extended rebuttal deadline. POLYTEX FIBERS CORPORATION , 1987-INA-597 (Feb. 7, 1989) (en banc )