Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 20 - SUPPLEMENT

Supplement current through January 1997

RECONSIDERATION BY THE BOARD

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TABLE OF CONTENTS

I. Authority to reconsider

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

I. Authority to reconsider

Employer's counsel failed to adequately respond to the Board's Order to show that rebuttal was timely submitted. Evidence submitted along with motion for reconsideration of resulting dismissal not acceptable at this late date and motion denied. Mrs. Indira Giri , 93-INA-342 (Jul. 7, 1994).

In Suma Fruit Int'l U.S.A. , 91-INA-47 (Feb. 3, 1994), the panel reconsidered its own decision. Employer had petitioned the Board for en banc review, but the matter was instead considered, sua sponte, as a motion for reconsideration. In the decision on reconsideration, the panel affirmed its prior decision with clarification.

II. Standard for considering motion to reconsider

no new cases

III. Time limitation for filing motion to reconsider

Motion for reconsideration of Board's Order of Dismissal not accepted where employer waited more than 6 months before filing motion, without explanation. Chatwal Hotels, Inc. , 94-INA- 131 (Nov. 29, 1994)(denial of motion for reconsideration).

In Canadian Nat. Ry. 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. oreover, the Board noted that the CO raised arguments and asserted violations not 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.

IV. Requirement that alien's request for review be joined by the employer

no new cases

IV. Requirement that alien's request for review be joined by the employer