BALCA affirms denial of Labor application – Lack of Employer’s Name on Notice of Filing is not harmless error

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Stone Inspector.

The Employer filed an ETA Form 9089, Application for Labor Certification on behalf of the beneficiary. In February of 2008, the CO issued an Audit Notification letter requesting among other documents, a copy of the Employer’s Notice of Filing. Thereafter, the Employer supplied a copy of its Notice. In May of 2008, the CO denied the application because the Employer failed to provide its name on the Notice of Filing. Attorney for the Employer filed a motion for reconsideration arguing that since the notice of filing is posted within the job premises, the name of the company does not need to be included, as long as the name of the President and a telephone number are present on the posting. The actual Notice of Filing did not include the Employer’s company name, but did include the President’s name and telephone number. Accordingly, the CO denied reconsideration and thereafter forwarded the case to BALCA for review.

Upon BALCA review, it was determined that the regulations at 20 C.F.R. §§ 656.10(d)(4) and 656.17(f)(1) control the issue before the Board. The regulations require that the Notice of Filing list the hiring company. The CO’s appellate brief indicated that the reasoning behind this regulation is that sometimes more than one employer may reside at a single facility or location. Specifically, the CO stated that when multiple employers share an office and a Notice of Filing is posted in a common area in that office it could potentially apply to either employer. Further, without the name of the Employer, it would not be possible to determine which Employer the Notice of Filing applies. The Board identified the Petitioner’s argument, in that common sense should be used to determine the outcome rather than statutory interpretation. However, the Board found the omission was not harmless error and stated that to make a case out for equitable relief in favor of the Petitioner, the Petitioner needed to do more to show that the company’s name was not needed on the Notice of Filing. They needed to show the size of the company, how well the workforce knew the President of the Company, and whether the place in which it placed its Notices was a place exclusively designated for company bulletins.

The Board recognized that the inclusion of the Employer’s name on the Notice of Filing is found in a cross reference; however, it is not a difficult cross reference to follow. In summary, the Board stated that the inclusion of the Employer’s name on the Notice of Filing is not an obscure requirement, nor a difficult one to follow.

Accordingly, the Board properly affirmed the CO’s final determination.