In El Rio Grande, 1998-INA-133, the Employer appealed the Certifying Officer's
("CO") classification of the position "Specialty Cook, Mexican" under
the SCA "Cook II" subclassification for purposes of determining the prevailing
wage.
Jurisdiction
The Board raised sua sponte the issue of whether it had jurisdiction to review SCA
wage determinations made in the context of applications for labor certification and determined
that the regulatory framework does not provide employers the right to appeal wage determination
through the SCA's Wage and Hour appeal procedures. Accordingly, the Board held that it must
take jurisdiction so that some appellate route would be afforded employers.
Standard of Review and Burden of Proof
Where the Board reviews wage determinations, it will use the standard of review
annunciated by the ARB in Dept. of the Army, ARB Nos. 98-120, 98-121 and 98-122
(ARB Dec. 22, 1999). Specifically, the Board "will upset a decision of the Administrator
only when the Administrator fails to articulate a reasonable basis for the decision, taking into
account the applicable law and facts of the case." As for the burdens of the parties
in such challenges, the Board cited its earlier decision, John Lehne & Sons, 1989-INA-
267 & 313 (May 1, 1992) (en banc), for the proposition that the ultimate burden lies on
the employer to prove that the CO's determination is wrong, but that the CO must provide a
reasonable explanation of how the prevailing wage was determined so that employer may have
the opportunity to meet that burden.
SCA Classifications
The Board concluded that the SCA definition of Cook II is intentionally broad in coverage,
and is broad enough to cover cooks specializing in foreign foods, even though one aspect of the
definition arguably does not fit. The Board also concluded that it is appropriate for SCA
classifications to sweep broadly given the nature of their mission to provide the basis for wage
determinations for the multitude of occupations that are covered by the SCA. The Board held
that "[w]hat is sought is a reasonably good fit -- not necessarily a perfect fit." The
Board also held that when it reviews a classification, it will primarily be looking at whether the
CO has made a reasonable classification to a SCA occupational definition. In the instant case,
the Board found that it was reasonable for the CO to have classified a cook specializing in
foreign foods to the SCA Cook II definition.
Slotting
In the instant case, the CO, through the Wage and Hour Division, used a
"slotting" technique authorized by 29 C.F.R. § 4.51(c) to determine the
prevailing wage for a "Cook II." The Board found that the Department of Labor may
properly use slotting to determine a prevailing wage for a SCA-covered occupation for purposes
of alien labor certification, but that if slotting is used it must be used in a reasonable and fair
manner. The Board held 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. Observing that the wage
determination in this case appeared to be inflated, and taking administrative notice of a number
of alternative surveys, the Board concluded that it did not have adequate information on the
record presented to determine whether the SCA wage determination was reasonable or
unreasonable. The Board held that "[a]lthough absolute precision in making SCA wage
determinations is not required and this Board will not engage in recalculating wage
determinations if reasonably made -- it is unreasonable to expect an employer to meet its burdens
in challenging a wage determination if the method of making the determination is clouded in
mystery, compounded by the fact that no agency seems to believe that it is responsible for
explaining how a determination was made in a labor certification case." Accordingly, the
Board remanded the case.
