Employer and amicus' response characterizes the CO's motion for reconsideration as an argument that "BALCA does not have jurisdiction to review the denial of a labor certification if a review of the denial involves a review of the method by which the SCA wage was determined in that case." They argue that such a view is contradicted by 20 C.F.R. § 656.26, which gives BALCA the jurisdiction - indeed, the regulatory duty - to review all aspects of a labor certification denial.

   Employer and amicus argue that section 656.40(a)(1) does not deprive BALCA of jurisdiction to review the denial of labor certification if the denial involves a review of the method by which the SCA wage used in that case was determined. They observe that the plain language of section 656.40(a)(1) "only describes the circumstances under which a wage determination under the SCA or the Davis-Bacon Act should be used in labor certifications. It says nothing whatsoever about BALCA's jurisdiction to review a wage determination under the SCA or the Davis-Bacon Act in the context of a labor certification denial."

   Employer and amicus argue that the CO's contention that BALCA lacks jurisdiction to review SCA wage determinations because the determination is made by ESA and not the CO, is undercut by Supreme Court authority to the effect that any jurisdiction to review agency action cannot be excluded implicitly. See Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 1511-12, 18 L.Ed.2d 681 (1967) and Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986). Finally, they argue that the regulations giving BALCA general jurisdiction to review denials of labor certifications provides jurisdiction over the subject matter of such denials - not over particular parties, such as the ESA or the CO - "[t]herefore, regardless of which agency has the responsibility to make prevailing wage determinations under the SCA, BALCA has jurisdiction to review that determination if it was used in a labor certification."

   B. Discussion

   We find that Employer and amicus have stated the better reasoned analysis of the scope of the Board's review authority. We note that the Supreme Court authority cited by Employer and amicus does not provide controlling authority as it discusses how to interpret Congressional intent to provide or limit an Article III court's authority to review. Nonetheless, we agree with the underlying principle that a reviewing body should not find implicit limits on its review authority based on indeterminate evidence of Congressional - or in this case - the regulatory drafter's - intent about the scope of the review authority authorized. We agree with Employer and amicus that there is nothing in the applicable regulatory language that evinces an intent to limit BALCA's authority to review prevailing wage determinations. Thus, we affirm the en banc decision in this respect.

   We re-emphasize, however, what the en banc decision stated in regard to the standard of review. BALCA will not require absolute precision in the determination of SCA wage -- nor will it engage in recalculations of SCA wage determinations if reasonably made. Rather, the Board's decision is simply that the CO is responsible by the plain language of the regulation to obtain a SCA wage determination for use in a permanent alien labor certification proceeding - regardless of whether ETA or ESA is the agency that actually conducts the surveys and calculates the wage. Thus, the decision does not require the CO to make an independent SCA wage determination but only to be prepared to explain how the determination was made.

B. Discussion

   We do not find the slotting procedure to be inconsistent with the statutory purpose of protecting the wages and working conditions of U.S. workers similarly employed. By its own terms, section 4.51 (c) requires "a comparison of equivalent or similar job duty and skill characteristics between the classifications studied ...." Thus, if slotting is applied, it is comparing similarly employed workers - admittedly on a somewhat imprecise level - but as we noted in the en banc decision, absolute precision is not required in making SCA wage determinations.

   In regard to Employer and amicus' request for an order directing that when slotting is used, the CO minimally must disclose the occupations compared in the slotting process and the criteria used for the comparison, we believe that such a direction was already contained in the Board's en banc decision. The Board wrote:

We hold that where slotting is used for a SCA wage determination, and Employer challenges the SCA wage determination, the CO must provide information on why slotting was used, which positions were compared, and why the comparison was reasonable. Once the CO does so, however, the ultimate burden of proof remains on an employer challenging a SCA prevailing wage determination to establish that the CO's wage determination is in error, and that it its wage offer is at or above the correct prevailing wage.

El Rio Grande, 1998-INA-133 @ 10 (Feb. 4, 2000) (en banc).

   Based on the foregoing, it is ORDERED

1. The CO's, Employer's and Amicus' motions for reconsideration are GRANTED.

2. The Board's holding that it has jurisdiction to review SCA wage determinations made in the context of applications for alien labor certification under 20 C.F.R. Part 656 is AFFIRMED.

3. The Board's holding that slotting under 29 C.F.R. § 4.51(c) may properly be used to determine a prevailing wage for a SCA-covered occupation for purposes of alien labor certification is AFFIRMED.

      FOR THE BOARD:

      JOHN M. VITTONE
      Chairman Board of Alien
      Labor Certification Appeals and
      Chief Administrative Law Judge

JMV/trs