UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION
APPEALS
Judges' Benchbook
Second Edition - May 1992
CHAPTER 20
RECONSIDERATION BY THE BOARD
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II. Standard for considering motion to reconsider
III. Time limitation for filing motion to reconsider
IV. Requirement that alien's request for review be joined by the employer
The Board has the authority to reconsider its own decisions. Edelweiss Manufacturing Co., Inc. , 87-INA-562 (Nov. 10, 1988) ( en banc ). The Board has exercised that authority in to both panel, GCG Corp. , 90-INA-498 (May 20, 1991); Yamasho Inc. , 89-INA-203 (Nov. 5, 1990), and en banc decisions, see Tel-Ko Electronics, Inc. , 88-INA-416 (July 30, 1990) (reconsideration en banc) (reversing the prior en banc holding).
In Canadian National Railway Co. , 90-INA-66 (Sept. 11, 1992)( en banc ), recon. denied Nov. 20, 1992)( en banc ), the Board held that, under 29 C.F.R. § 18.4(a), it was without authority to reconsider where the CO's motion to reconsider was filed more than 26 days after issuance of the en banc decision. Moreover, the Board noted that the CO raised arguments and asserted violations nor preserved in the FD or presented before the en banc decision was issued. Judge Guill concurred to state that he would only address the timeliness of the CO's motion and not its merits. Judges Clarke and Romano dissented and maintained that they would have reconsidered and reversed the Board's decision to grant labor certification.
II. Standard for considering motion to reconsider
Where the employer points out no flaw in the judicial process by which the Board reached its decision, and where the employer does not allege that the Board overlooked some important fact, reconsideration will be denied. Edelweiss Manufacturing Co., Inc. , 87-INA-562 (Nov. 10, 1988) ( en banc ).
III. Time limitation for filing motion to reconsider
Motions for reconsideration must be served within 10 days following issuance of the Decision and Order. Lignomat, USA, Ltd. , 88-INA-276 (Jan. 24, 1990) (order denying motion for reconsideration).
In Tel-Ko Electronics, Inc. , 88-INA-416 (July 30, 1990) (reconsideration en banc), the Board held that it would be inequitable to apply the ten-day limit to a motion for reconsideration in a case where the original en banc decision was issued only one day after the ten-day limit was established in Lignomat, USA, Ltd. , 88-INA-276 (Jan. 24, 1990) (order denying motion for reconsideration). However, the Board announced its intention to enforce the ten-day rule in future cases.
IV. Requirement that alien's request for review be joined by the employer
Consistent with an alien's right to request review in the first instance, a motion for reconsideration may be made to the Board by the alien, but only if the employer also moves for reconsideration. K Super KQ-1540 A.M. , 88-INA-397 (May 31, 1989).