In the cases of Chams, Inc., d/b/a Dunkin' Donuts, 1997-INA-40; T&T Donuts
d/b/a Dunkin' Donuts, 1997-INA-232, and Berwyn Donuts, 1997-INA-541;
the Board granted en banc review in order to determine the proper way in which a CO
may challenge the job title and the burden which an employer bears to establish that the job is as
described by its preferred classification, as well as if the CO's inclusion of outside
communications and documents was proper, and, if so, the proper method of disclosing this
information to the applicants
CO's challenge of job title
In each of these cases, the employers had listed the occupation as "Baker" under
the DOT. The CO challenged these classifications and changed the job title to that of
"Doughnut Maker" under the DOT. The Board held that it is well-established that a
CO may challenge the job title provided by the employer. As with any other finding in a NOF, it
is then the employer's burden to rebut this finding by providing sufficient evidence.
Introducing outside communications
The Board held that it was proper for the CO to go outside the record provided by an
employer in order to verify the information provided by an employer in a labor certification
application
Disclosure of outside communications in NOF
If a CO uses evidence obtained from sources other than the applicant, it is necessary for the
CO to disclose this information in the NOF so that the employer may have an opportunity to
rebut that evidence. As the employers in Chams and Berwyn were not given
such an opportunity, it was necessary to remand the cases. However, in T&T, this
information had been provided in the NOF. T&T failed to produce any evidence to rebut
the evidence obtained by the CO. As such, the CO's denial and the Panel's decision affirming
that denial were appropriate.
